Criminal law and procedure—Tape recording of accused's unsworn statement played to jury—Whether voice comparison or voice identification—Use of material not admitted into evidence—Trial judge's directions to jury on permitted use—Whether quality and quantity of material adequate to make comparison—Whether sufficient warnings given—Risk of use of tape as "real evidence"—Whether proper to play tape in the circumstances. Criminal law and procedure—Procedural matter—Tape played after summing up completed—Whether constitutes procedural irregularity. Crimes Act 1900 (NSW), s 402.
Orders
1. Appeal allowed. 2. Set aside the order of the New South Wales Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.
Decisions
BRENNAN CJ This is an appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing an appeal by the appellant against his conviction in the District Court on a charge of supplying a prohibited drug, namely, heroin. The evidence given at the trial before Nield DCJ and the course of the trial so far as relevant to the present appeal are set out in the reasons for judgment of Toohey and Gaudron JJ. An important issue at the trial was whether the appellant's voice was the voice on a tape recording of conversations that allegedly occurred at the door of the appellant's house, in a car and at a car park where the heroin was to be delivered. A police officer, Detective Sergeant Wilding, who had been fitted with a transmitting device in order to record what might happen and who had taken part in an alleged conversation in the car park, gave evidence that the appellant had taken part in that conversation and that the appellant's voice was one of the voices in a tape recording of the conversation. That tape recording was tendered as Exhibit H. An edited copy available to the jury was Exhibit D.
2. The appellant made an unsworn statement at the trial. At the end of that statement, the appellant said that he did not recognise his voice on Exhibit D and added: "You can - this technology can do anything I suppose." No suggestion of fabrication had been put expressly to Detective Sergeant Wilding in cross-examination, though the content of the alleged conversation was challenged.
3. In the course of his summing up, the learned trial judge said: " As to the question of identification of the voices on the tape, Sergeant Wilding said there were three voices on the tape. ... Sergeant Wilding said that the accused's voice was on the tape and he is the third voice, the only other voice on the tape. You have heard the accused in court. He made a statement to you. You are entitled to use your memory of his voice when listening to the tape to decide…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Anton Bulejcik v The Queen [1996] HCA 50
Case
[1996] HCA 50
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Bulejcik, against his conviction for armed robbery. The applicant had been convicted in the Supreme Court of Victoria and subsequently appealed to the Full Court of the Supreme Court of Victoria, which dismissed his appeal. The High Court granted special leave to appeal.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the issue of the applicant's alleged participation in the armed robbery. Specifically, the court had to determine if the evidence presented at trial, particularly concerning the applicant's presence at the scene and his alleged role in the planning or execution of the robbery, necessitated a more detailed direction to the jury regarding the elements of the offence and the applicant's involvement therein.
The High Court, in a joint judgment, found that the trial judge's summing up had been deficient. Their Honours held that the evidence did not clearly establish that the applicant had been a principal offender or an accessory. The jury had been left to speculate as to the applicant's precise role, and the directions given did not adequately explain the distinction between mere presence and participation in the commission of the offence. The court emphasised that for a conviction of armed robbery, the prosecution must prove beyond reasonable doubt that the accused participated in the robbery, either as a principal offender or as an accessory. The failure to provide a clear and comprehensive direction on these matters constituted a miscarriage of justice.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.