The Appeal
27 There is no obvious part of the appellant's submissions, written or oral, that challenged the admissibility of the voice identification evidence. However, having regard to his unrepresented status, and that the evidence was admitted at the trial over objection, after a hearing on the voir dire, it seems to me that fairness requires that consideration be given to that question.
28 In R v E J Smith [1984] 1 NSWLR 462 O'Brien CJ of Cr D undertook an exhaustive review of the authorities relating to the admissibility of voice identification evidence.
29 He drew a distinction between such evidence given by a witness who has a pre-existing familiarity with the voice the subject of the identification evidence, and such evidence given by a witness who has not. In the latter case, the evidence is usually only admitted where the voice has sufficiently distinctive characteristics.
30 The decision has been endorsed in this Court in R v Brownlowe (1987) 7 NSWLR 461 and R v Brotherton (1993) 29 NSWLR 95. It has been referred to, also with apparent approval, by the High Court in R v Bulejcik (1996) 185 CLR 375 at 393-4.
31 For present purposes, it is necessary to consider only that part of the decision that is concerned with identification of a voice with which the witness is already familiar. There can, in my view, be no doubt that the evidence was admissible. The issue concerning the evidence was the weight that could be attached to it, and that depends upon the particular facts and circumstances of each case. These were, in this case, thoroughly explored and were before the jury. The reasons for the absence of any reference to the voice identification in the complainant's first statement to police were fully canvassed, both on the voir dire and before the jury. In my view, the evidence was properly admitted, and the judge gave comprehensive and appropriate directions about it, including directions that voice identification evidence was "notoriously open to mistake", and he reminded them that the complainant's identification of the appellant's voice was qualified. He repeated particular passages of the evidence of the complainant and of Ms Spiteri. He pointed out that the intruder's voice was not said to have any distinctive feature.
32 I turn now to the argument advanced by the appellant in writing all of which went to the reliability of the convictions. They were, in essence, directed to the ground of appeal which used to be called the "unsafe and unsatisfactory" ground, but which is now more accurately pleaded as a miscarriage of justice: Fleming v R [1998] HCA 68; (1999) 73 ALJR 1; R v Giam [1999] NSW CCA 53; unreported, 10 March 1999. The essence of this ground of appeal is that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of the charges on which he was convicted.
33 The appellant asserted that the jury may have been "taken in by the victim's theatrics and tears and therefore looked at this case from an emotional standpoint", rather than objectively.
34 The transcript discloses a number of occasions on which the judge expressed some concern for the complainant's condition, and allowed short breaks for her to rest or recover. It is plain that she manifested distress at times when she was asked to recount the events. However, there is no reason to think that this circumstance was mistreated by the jury. The judge gave the usual, and very comprehensive directions about the onus of proof. Although he did not directly instruct them to discard sympathy, emotion or prejudice, he expressly reminded them of counsel's address to that effect, with implicit endorsement. I see no reason to conclude that the trial miscarried because the jury failed to understand, or heed, their obligation to consider the issues objectively.
35 The remaining matters the appellant argued amounted to critical analysis of the various circumstances on which the Crown relied, or reiteration of the evidence given in his case, or a combination of the two.
36 His next argument concerned the evidence that the intruder gained access through the laundry window, the likely availability of which would not, on the Crown case have been known to many, but which was known to the appellant. The appellant pointed to evidence that entry had been attempted through at least two other windows. On one of these the flyscreen had been removed. This was a second floor window through which the six year old, M, had observed the yellow car and the man walking down the driveway.
37 The appellant referred to other evidence given by M, in particular his answer to questions concerning the identification of the person he saw. As the appellant pointed out, it was only three months since he had left the premises, after having lived there for about three months, and so M knew him well. The appellant gave evidence that M well knew his (the appellant's) name because his own two given names were the same as those of the appellant but in reverse order, and this had been a subject of comment during the time he lived there. M did not name the appellant. He said that he recognised the person but he could not or would not name him.
38 The appellant referred to the evidence of voice identification, arguing that, having regard to all the circumstances, it was unreliable. He argued that his dreadlocks were distinctive to a point that the complainant would have recognised him had he been there, and he relied upon her description of the intruder's hairstyle only as "a pony tail" to suggest that he did not fit her description.
39 He then referred to the evidence of his broken hand and argued that that condition would have left him without the capacity to inflict the blows described by the complainant. That argument must be seen in the context of the medical evidence called on his behalf. It established that the appellant had had a broken hand at some stage in his life - Dr Peretz had never examined the appellant and did not, for the purposes of giving evidence, have access to the x-ray itself, and worked only from an x-ray report. He was unable to give any date when the fracture might have occurred, and accepted that it may in fact have been up to ten years earlier.
40 Finally, the appellant asserted that 60 - 70 percent of the complainant's responses to questions put to her were vague, such as that she did not know or could not remember. A fair reading of the transcript simply does not support this assertion.
41 I have carefully considered all of the evidence, and all of the arguments advanced by the appellant. It must be remembered that the arguments that are presently put were put with some force to the jury, and their weight was very much a matter for the jury. I am quite satisfied that the verdicts of guilty on all counts were well open to the jury.