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.