Regina v V Camilleri

The Grounds of Appeal 12 The Notice of Appeal raised the following issues in respect of Mr Camilleri's conviction. "1. The trial judge erred in his directions on circumstantial evidence and the burden of proof. 2. The trial judge erred in his directions on the failure to cross examine Detective Keen on voice identification. 3. The trial judge failed to direct, and warn, adequately, the jury in relation to the voice identification evidence of Detective Keen. 4. The trial miscarried by reason of impermissible and prejudicial material going before the jury concerning Mr Camilleri's status as a prisoner on work release. 5. The trial miscarried by reason of admission of evidence of a search at Mr Camilleri's home. Alternatively, the trial judge failed to adequately direct the jury in respect of this evidence." 13 It was also said that the sentence imposed was excessive.

Ground 1 - Direction on Circumstantial Evidence 14 This was not the usual circumstantial case. As mentioned, the Crown case fundamentally depended upon the contents of the tape and, therefore, upon proof that it was Mr Camilleri's voice captured on the tape. Det Keen said that it was Mr Camilleri. The internal references, and certain other evidence, suggested, according to the Crown, that it was Mr Camilleri. It was a case in which, arguably, it was unnecessary to give a circumstantial evidence direction (cf Barwick CJ, Grant v The Queen (1975) 11 ALR 503 at 504; Shepherd v The Queen (1990) 170 CLR 573, per Dawson J at 578). 15 However, his Honour gave a circumstantial direction. It is therefore important to examine its terms. His Honour said this: (S/U 13) "The Crown seeks to prove its case by proving particular facts or circumstances which, it says, when added together, lead to but one reasonable and sensible conclusion. That is to say that it is the accused, Victor Camilleri, who was the person 'Victor' on the tape. That it is Victor Camilleri who is discussing dealing in Ecstasy and Cannabis with Kalache." 16 His Honour added the following, identifying Mr Camilleri's voice as an essential circumstance: (S/U 13) "You will appreciate that if the Crown does not prove that Victor Camilleri was the person on the tapes talking to Kalache, then he could not be convicted." 17 His Honour later directed the jury, appropriately, that they must be satisfied beyond reasonable doubt that it was Mr Camilleri's voice on the tapes. His Honour said this: (S/U 17/18) "If you are to use the accused's voice on any tape as a basis for concluding that he is guilty of the crime charged, then you must make that finding beyond a reasonable doubt in relation to that particular tape." 18 Returning to his Honour's directions, they continued as follows: (S/U 13) "As I said, circumstantial evidence involves the adding together of a number of proven facts, and then a consideration of whether there is but one reasonable or sensible conclusion to be drawn from the combination of those facts." 19 His Honour likened circumstantial evidence to the strands of a rope, stating: (S/U 14) "... when all added together, lead to but one reasonable or sensible conclusion to be drawn from the combination, then that is the sort of evidence which can justify a conviction." 20 His Honour then said this: (S/U 14) "I repeat, before you could find the accused is the Victor on the tapes, on the basis of circumstantial evidence, you must be satisfied that any such finding is the only reasonable or sensible conclusion to emerge from the proven facts or circumstances. If there was another reasonable or sensible conclusion available, then you would not find that matter proved." 21 His Honour provided an illustration involving a smoking gun, ending with these words: (S/U 15) "From those proven facts or circumstances, the only sensible or reasonable conclusion to be drawn is that that man shot that woman." 22 His Honour added: (S/U 15/16) "... it could not have happened any other way. She could not reach her hands around to shoot herself, nobody else could have done it. So as I say, when you combine those circumstances, add them all together, there is only one reasonable or sensible conclusion to be drawn from those proven circumstance(s)." 23 Later, when dealing with the Crown case, his Honour said this: (S/U 30) "... the Crown says that when you add each of those matters up, when you add them to the other, there is but one sensible conclusion to be drawn and that is that the accused, Victor Camilleri, was the Victor who was in Kalache's unit discussing matters with him, including the supply of prohibited drugs, that any other conclusion is just so bizarre to be simply silly. There is no way that all of those factors could be present by sheer coincidence. The Crown says that there is but one sensible conclusion to be drawn and that is that this Victor Camilleri was the Victor on the tapes and that this Victor Camilleri was the person speaking to Kalache about the supply of prohibited drugs." 24 The appellant asserted that the directions were erroneous. They were also inexact. On some occasions the jury were told that the issue which they should address was whether there was "but one", "reasonable and sensible conclusion". On other occasions "reasonable" and "sensible" were alternatives ("another reasonable or sensible conclusion available"). Counsel in the course of argument said this: "... we have the same formulation and this is not a formulation that finds its way into Bench books nor is it given by any judges normally in any trial that I am aware of." 25 The mischief of such a direction, according to the appellant's written submissions, was as follows: "They watered down the standard of proof so that something less than proof beyond reasonable doubt would suffice." 26 The point was taken at the trial. Counsel for Mr Camilleri complained that the jury should be told that it was necessary to exclude all hypotheses consistent with innocence. 27 The Crown responded by asserting that his Honour was not dealing with proof beyond reasonable doubt. He was dealing with the drawing of inferences. The words he chose on that issue were clear and acceptable. 28 However, his Honour was not dealing with the drawing of inferences as such. He was dealing with the inference of guilt from the combined circumstances proved by the Crown. Barwick CJ in Grant v The Queen (supra) said this (at 504) (referring to the decision which is the source of the modern day directions on circumstantial evidence): "It must be remembered that the direction suggested by Baron Alderson in R v Hodge ((1838) 2 Lewin CC 227) is an amplification of the direction that the Crown must prove its case beyond all reasonable doubt." 29 See also, Shepherd v The Queen (supra) per Dawson J at 578. 30 The formulation by his Honour of the circumstantial direction was unusual. No doubt his Honour was attempting to avoid obscure expressions, such as "hypothesis", and to express the concept in language which the jury would understand. Two issues arise. First, given that the circumstantial direction is an elaboration upon the words "proof beyond reasonable doubt", what latitude is permissible in its expression? Secondly, assuming that there is scope for variation (unlike the words "beyond reasonable doubt") (cf Green v The Queen (1971) 126 CLR 28), was his Honour's formulation appropriate and adequate? 31 In addressing the first of these issues, it is useful to begin with R v Hodge (1838) 2 Lewin CC 227. Baron Alderson directed the jury in these terms: (at 228) "That the case was made up of circumstances entirely; and that, before they could find the prisoner guilty they must be satisfied, not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person." 32 Griffith CJ in Peacock v The King (1911) 13 CLR 619, expressed the direction in these terms: (at 630) "It is the practice of Judges, whether they are bound to give such a direction or not, to tell the jury that, if there is any reasonable hypothesis consistent with the innocence of the prisoner, it is their duty to acquit." 33 Griffiths CJ equated a "reasonable hypothesis" with a "rational conclusion" (at 634). 34 O'Connor J, in the same case, agreed with the formulation of Griffiths CJ, stating the following: (at 661) "The duty of a jury in regard to circumstantial evidence is often in practice stated briefly, and, I think, accurately, in these words: 'The circumstances must be such that the jury may reasonably draw from them an inference of the prisoner's guilt, and can reasonably draw no other inference.'" 35 His Honour elaborated: (at 661) "It is, I think, necessary for the purposes of this case, to add that an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence." 36 In Plomp v The Queen (1963) 110 CLR 234, the wording adopted by Dixon CJ was again slightly different. He said this: (at 243) "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed." 37 See also Martin v Osborne (1936) 55 CLR 367, per Dixon J at 375; Knight v The Queen (1992) 175 CLR 495, per Mason CJ, Dawson, Toohey JJ at 502-3. 38 In Grant v The Queen (supra), the applicant for special leave submitted that there had been a miscarriage of justice because the trial judge had not given the jury a direction "in the terms of the language of Baron Alderson in R v Hodge". The Court refused leave. Barwick CJ (with whom other members of the Court agreed), made the following comment suggesting some latitude in the formulation of the appropriate direction: (at 504) "Unquestionably, there are cases which depend upon circumstantial evidence in which it would be proper and, indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought." 39 Moving to the second issue, the direction would have been clearer, in my view, had his Honour said "the only reasonable conclusion", or "the only reasonable explanation", rather than the phrase "but one reasonable or sensible conclusion". It was also desirable, in the context of the direction, that the jury be reminded that the onus was upon the Crown to prove that guilt was the only reasonable conclusion arising from the facts proved, and that it must exclude other possible reasonable explanations open on the evidence. However, in the course of the summing up, his Honour gave directions on the onus and standard of proof. Taking the summing up as a whole, I believe that the relevant concepts were imparted. 40 I would therefore reject the first ground of appeal.

Grounds 2 and 3: Voice Identification 41 Grounds 2 and 3 concerned the warning given by his Honour on the central issue, namely, whether Mr Victor Camilleri was the "Victor" on the tapes. It is convenient to restate the grounds and deal with them together. "2. The trial judge erred in his directions on the failure to cross examine Detective Keen on voice identification. 3. The trial judge failed to direct, and warn, adequately, the jury in relation to the voice identification evidence of Detective Keen." 42 When the Crown Prosecutor opened, she foreshadowed that Det Keen would give evidence that it was Mr Camilleri's voice which appeared on the surveillance tapes. Counsel for Mr Camilleri then opened briefly before the Crown case began. He described the circumstances in which Det Keen identified Mr Camilleri's voice. He suggested that, by reason of those circumstances (which I will shortly describe), no weight should be given to Det Keen's identification. 43 Det Keen was duly called. He did not know Mr Camilleri before 9 December 1997. On that day he was called to the Crime Commission. The Commission was then conducting an operation which focused upon Mr Kalache ("Operation Gymea"). Det Keen was provided with a briefing. A warrant had been obtained to search the home of Mr Camilleri. 44 Det Keen and others then executed the warrant. The search took a number of hours. Mr Camilleri was present. Questions were directed to Mr Camilleri from time to time by Det Keen, which he answered. The search, including these conversations, was recorded on video. An edited version of the search, incorporating Mr Camilleri's responses to Det Keen, was made an exhibit at the trial. It lasted approximately twenty minutes. Mr Camilleri was then taken to Burwood Police Station to be interviewed. However, he declined to answer questions. The ERISP tape was also tendered. Mr Camilleri was then charged. Whilst that was undertaken, he again spoke from time to time to Det Keen. 45 On 16 December 1997, Det Keen again attended the Crime Commission. He was provided with a number of tapes. They were a selection of the recordings made under warrant at the Clovelly home of Mr Kalache. Det Keen had never met Mr Kalache. He was also provided with a number of transcripts to match the tapes which he then heard. The transcripts had been prepared by the Crime Commission. Each contained a legend which purported to identify the participants in the various conversations. Tape 339A (which became Exhibit S), for instance, included the following: "LK = Les Kalache VC = Victor Camilleri F = Unknown Female" 46 Det Keen, in these circumstances, purported to identify Mr Victor Camilleri's voice. 47 Det Keen was cross examined at some length. The cross examination, so far as voice identification was concerned, was directed towards two issues. First, there was an exploration of Det Keen's familiarity with Mr Camilleri's voice. He did not know him before 9 December 1997. His exposure to his voice was confined to the events of that day. Det Keen acknowledged that Mr Camilleri's responses during the course of the search were short, usually one or two words, occasionally three or four. The conversation in total would have amounted to no more than fifteen minutes over several hours. The ERISP interview was also no more than fifteen minutes, much of which was occupied by formalities, where persons other than Mr Camilleri were speaking. Referring to the search and the ERISP tape, counsel put this: (T 75) "Q. So there wasn't a great deal from his replies or his statements from those two sources that you can get a speech pattern for Mr Camilleri, is there? A. Not ... from those sources, no." 48 Det Keen insisted, however, that there was other conversation through which he became familiar with Mr Camilleri's voice. 49 The second matter concerned the circumstances in which Det Keen had purported to identify Mr Camilleri's voice on the surveillance tapes. He acknowledged that the Crime Commission had provided transcripts. The following was then put: (T 73) "Q. You weren't going down to make what one can call a blind identification, were you? A. No, I wasn't." 50 Counsel sought to contrast the procedure adopted with that required in respect of visual identification (multiple photographs or a line-up). 51 His Honour was obliged to warn the jury that voice identification evidence may be unreliable. The source of that obligation was both s116 and s165(1) of the Evidence Act 1995. The Act defines "identification evidence" to include "aural" identification of an accused. The Act also provides some guidance as to the content of the warning that must be given. Section 116 is in these terms: " 116 Directions to jury (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury." 52 Section 165(2) is as follows: " 165 Unreliable evidence (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it." 53 His Honour reminded the jury of the evidence of Det Keen as to the basis upon which he claimed to be familiar with Mr Camilleri's voice (S/U 18-20). That summary included these words: (S/U 19) "When he came to listen to the surveillance tapes on 16 December, he had available to him transcripts, copies of which are before you, and which bear legends indicating initials placed by some officer of the Crime Commission." 54 His Honour then warned the jury that it must approach the evidence of voice identification "with considerable caution", because there is always the possibility of mistake. The jury was enjoined to "carefully scrutinize the voice identification evidence" (S/U 20). These warnings satisfied s116(1)(a) and s165(2)(a) and (c). 55 His Honour then dealt with the issues by which the jury may "test" the voice identification evidence: how many times Det Keen had heard Mr Camilleri's voice, over what period, the distance separating them, whether he had reason to concentrate on the voice or was simply making conversation, whether the detective was under stress, the quality of the recordings, and so on (S/U 21-22) (cf s116(1)(b) and s165(2)(b)). 56 The appellant complains (Ground 3) that his Honour omitted the most obvious and vital aspect relevant to the reliability of the tapes, a matter which the accused suggested vitiated the entire identification exercise. That is, he failed to mention, in this context, as a matter bearing upon the reliability of the identification, the fact that the Crime Commission told Det Keen in advance that what he was about to hear was the voice of Mr Victor Camilleri. 57 Although speaking of the common law requirement for a warning in the context of visual identification, the following words of the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Domican v The Queen (1992) 173 CLR 555, are apposite: (at 561-562) "The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." 58 The circumstances in which Det Keen performed the identification of Mr Camilleri's voice was plainly a weakness in the identification evidence (Domican v The Queen (supra)). It was a matter which may cause the evidence to be unreliable (s165(2)(b)). It was a reason for caution (s116(1)(b)) . In my view it should have been identified, as such, as part of the warning. 59 His Honour, as mentioned, did refer to this aspect when dealing with Det Keen's evidence. He referred to it again when dealing with the "accused's case" (S/U 33). However, in my view, these references did not satisfy the requirements of the Act. They were not directions with the authority of the Judge behind them. 60 I believe, therefore, that Ground 3 has been made out. 61 Further, at the end of the warning his Honour said these words, about which the appellant complains (Ground 2): (S/U 24) "It is of significance that when Detective Keane (sic) was being cross-examined, no questions were put to him to suggest that he was mistaken, that his voice identification was incorrect. Nothing was put to him to suggest that the voices on tape A were different from the voices on tape B and different from the voices on tape C and so on. Nothing was put to him by Mr Jauncey to suggest that there were different Victors speaking on those tapes." 62 The appellant makes two complaints about that direction. First, the direction was unfair, given the cross examination of Det Keen where his evidence was challenged. 63 Secondly, the direction was inappropriate (R v Birks (1990) 19 NSWLR 677 at 691/2). Counsel asked his Honour to withdraw the direction. However, his Honour refused to do so. 64 The Crown responded by suggesting that Birks was a very different case. Here, there was a "technical" issue, relating to voice identification. Unlike Birks, there was no suggestion in the comment made by his Honour of recent invention or dishonesty by the appellant. It was a comment in the midst of "comprehensive directions on voice identification". 65 However, I believe that there was error. First, when instructing the jury that they were the sole judges of fact, his Honour said this: (S/U 1) "I do not intend to express any views as to the facts. It is not my role, it is not my responsibility." 66 The direction about which complaint is made was a comment, although not identified as such. The jury was told that the matter, which was then drawn to their attention, was significant. It should have been made clear to the jury that it was a comment, and that they were free to disregard it. 67 Secondly, and more importantly, the comment did not exhibit that degree of circumspection which was required when inviting an inference, adverse to the accused, arising from the conduct of counsel (Sheller JA (with whom Dowd & Kirby JJ agreed) in Abdallah v The Queen [2001] NSWCCA 506). In R v Birks (supra), counsel for the accused failed to put to the complainant in cross examination matters important to the defence. The Crown addressed the jury upon the inferences arising from that failure. The Judge, in his summing up, dealt with the same subject. Dealing with this issue, Gleeson CJ adopted the views of King CJ in R v Manunta (1989) 54 SASR 17 at 23, where the following was said: "It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds." 68 Gleeson CJ added his own words of caution: (at 691-692) "I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth." 69 The comment by the trial Judge did not advert to other possible explanations for the way in which the cross examination had been conducted, nor to the challenges to Det Keen's evidence that were made. 70 I believe that Ground 2 has been made out.

Ground 4: The reference to Mr Camilleri being a long term prisoner. 71 In view of my conclusion on Grounds 2 and 3, I need not deal with the remaining grounds at length. I will refer to them in the hope that this Court's comments may be of assistance at any new trial. 72 One of the tapes included a reference to "Victor" being on work release. Mr Camilleri was, at the relevant time, a prisoner on work release. That was an agreed fact. 73 Mr Swarris was called by the Crown. He kept records on behalf of the Department of Corrective Services. Mr Camilleri was, in 1997, the only prisoner on work release whose first name was Victor. When cross examined, Mr Swarris acknowledged that he had only surveyed those in full time custody. His search had not included offenders subject to orders for periodic detention. The issue having been opened up, the Crown Prosecutor asked Mr Swarris to identify the difference between periodic detention and work release. Mr Swarris gave the following response: (T 4) "Work release is a Department of Corrective Services initiative. It allows the Department to take fairly long term prisoners and assimilate them back into the community by allowing them contact with other people in the commercial work environment. Periodic detention is a legislative-based program. It is an alternative to imprisonment and actually is supported by legislation. The underlying philosophy of the two programs are quite different." 74 Counsel for Mr Camilleri made an application for a discharge, which was refused. The appellant complained that significant prejudice attached to Mr Swarris' answer. It suggested that Mr Camilleri was a long term prisoner, which plainly it did. It is unnecessary to address on this appeal whether the jury ought to have been discharged or whether the matter could be dealt with adequately by direction. At any retrial steps should be taken by the Crown to ensure that the issue is not dealt with in a way which communicates that Mr Camilleri was a long term prisoner.

Ground 5: The reference to cannabis resin. 75 In searching Mr Camilleri's home, the police found a white powder in silver foil. There was conversation between Det Keen and Mr Camilleri in respect of that powder. The powder was later analysed and found not to be a prohibited substance. That was made clear when Det Keen gave evidence. The appellant suggested that it ought to have been excluded. However, the Crown relied upon the exchange between Det Keen and Mr Camilleri (which was captured on video) as being relevant to the issue of Det Keen's familiarity with Mr Camilleri's voice and his manner of speech. I believe that the evidence was relevant to that issue and, although prejudicial, its prejudicial value did not outweigh its probative value (cf s137 Evidence Act 1995). However, the trial Judge will plainly have to exercise his or her own discretion in respect of that issue. 76 In the same search, a small quantity of cannabis resin was found. The appellant complained that such evidence should not have been led. For my part, I can see no relevance in that evidence. It was highly prejudicial. The Crown should give consideration to the exclusion of that material. 77 It is unnecessary to deal with the issue of sentence.

Order 78 I would propose the following orders: 1. That the appeal is upheld.

2. The conviction on Count 1 is quashed and the sentence set aside.

3. There should be a new trial. **********

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