Bulejcik v The Queen

[1995] HCA 54

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, AND GUMMOW JJ

ANTON BULEJCIK   APPELLANT

AND

THE QUEEN            RESPONDENT

ORDER

1. Appeal allowed.

1. 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.

17 April 1996

Solicitors for the Appellant:  Brock Partners

Solicitor for the Respondent:  S E O'Connor, Solicitor
  for Public Prosecutions
  (New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Anton Bulejcik v The Queen

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.

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.

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.

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 whether he is the third speaker on the tape.   ...  You have the accused having given you a statement in court and you can use your memory of his voice in relation to ascertaining the third voice on the tape ...

...  You have the tape, it is exhibit D.  You can play it as often as you wish it to be played.  You have asked to have it played in court so you can use the head phones and I will arrange after my summing up for it to be played to you in court so that you can use the head phones.  You have asked also for the accused's statement to be played to you in court and I will arrange for that to be done also."

This appeal relates to the material to which the jury was entitled to have regard in finding that the appellant's voice was recorded on Exhibit D.  Counsel for the appellant raised a number of issues for determination:

(i)whether the jury were entitled to rely on their recollection of the appellant's voice while he was making his unsworn statement in order to determine whether it was his voice on Exhibit D;

(ii)whether the learned trial judge gave the jury an adequate warning about the danger of doing so;

(iii)whether the tape recording of the appellant's unsworn statement was in evidence; and

(iv)whether it was a procedural irregularity to play that tape back to the jury after the summing up was complete.

1. Voice identification

The jury heard, and presumably heard clearly, the voice of the appellant as he made his unsworn statement.  The statement took about 40 minutes to deliver.  English was not his native tongue.  We were informed that he is "a new Australian Yugoslav".  The question is whether the learned trial judge ought to have directed the jury not to take into account or not to give any weight to the sound of his voice in making his unsworn statement when they were considering the identity of the voice attributed to the appellant in Exhibit D.

The events that occur in the presence of a jury in the regular course of a trial are material which the jury can - as it no doubt does - take into account in the finding of contested facts.  The observed events can be described in one sense as "evidence" if they tend to prove or disprove a relevant fact, but they are not evidence in the sense of material that must be tendered by one party or the other before the jury is entitled to take the events into consideration.  A witness' manifestation of antipathy towards, or sympathy with, a party or other person, the physical appearance of an accused or a witness or the sound of a voice heard in the court does not have to be proved before a jury is entitled to take account of what they have seen or heard for themselves.

In Sorby v The Commonwealth[1] Gibbs CJ said in reference to the privilege against self-incrimination:

"The privilege prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body.  For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting."  (Emphasis added.)

This case does not raise any question as to the compulsion on an accused person to speak at his trial in order to permit the jury to hear the sound of his voice, but the passage cited shows that there is no general rule that precludes a jury from taking account of an accused's voice heard at the trial when it tends to prove a fact to be found.  In Smith, Ashford & Schevella[2], the Court of Criminal Appeal of Victoria rejected a submission that the trial judge should not have directed the jury that they were entitled to make a comparison between the voice of an accused in making an unsworn statement and the voice heard on certain tapes, in order to assist in deciding whether the jury were satisfied as to the identity of the speaker whose voice could be heard on the tapes.  The Court rejected the notion that the jury's making of that comparison might amount to an impermissible experiment.

Recognition of a speaker by the sound of the speaker's voice is a commonplace of human experience.  To recognise the voice of a particular speaker some familiarity with that speaker's voice is ordinarily needed[3].  A person who is not familiar with the voice of a putative speaker may be able nevertheless to recognise the speaker's voice by comparison with an established example of that voice if the speaker's voice exhibits sufficiently distinct features to permit an ordinary person to identify the speaker or if the person possesses an appropriate expertise.  The problem of identification by voice recognition has been considered by courts chiefly in reference to questions of admissibility of evidence identifying a voice heard out of court on a material occasion.  Admissibility of such evidence depends not only on the witness' familiarity with the speaker's voice or the distinctiveness of the voice or the witness' expertise. Other factors are material.  One factor is the clarity with which the witness has been able to hear the voice of the putative speaker on the material occasion and, in a case when a comparison with a voice heard on another occasion is relied on, on that occasion.  Another factor is the time which elapsed between those two occasions.  Neither of these latter factors has any relevance when a voice recorded on a tape is being compared with a voice heard in the courtroom.

In the present case, no question of admissibility arises but a similar issue does arise.  If it would be wrong to admit evidence of identification of the voice recorded on Exhibit D by a witness who has compared that voice with the appellant's voice in making his unsworn statement, it would be wrong to allow the jury to make an identification of the voice on Exhibit D based on that comparison.
        In some cases, judges have treated prior familiarity or distinctiveness as conditions of admissibility of voice identification by non-experts[4] in the absence of other means of identification[5]; in other cases, familiarity and distinctiveness have been treated as factors relevant to the weight of the witness' evidence but not its admissibility[6].  Evidence of identification by voice recognition is not a distinct category of evidence, though its probative value may oftentimes be dubious and will vary according to the circumstances of each case.  The test of its admissibility must be, in my opinion, one of degree.  The prescription of particular conditions of admissibility is not supported by any principle of the law of evidence.  Provided a reasonable jury could find, or be assisted in finding, a relevant fact upon consideration of evidence of voice identification that is admissible under the ordinary rules of evidence, there is no reason why the tender should be rejected.  The evaluation of evidence on which a reasonable jury could act is a matter for the jury.  It exceeds a judge's function to withhold evidence from a jury merely because, on that evidence, the judge would not reach and thinks a jury should not reach a conclusion adverse to the accused beyond reasonable doubt.  However, the ordinary rules of evidence confer on a judge a discretion to exclude evidence that is unduly prejudicial, albeit the evidence is otherwise admissible.  The exercise of that discretion is designed to avoid a significant risk that the evidence will be misused by the jury in a way that cannot be guarded against by an appropriate warning.  As the discretion is designed to avoid the risk of a miscarriage of justice[7], the exercise of that discretion in practice is apt to lift the level of familiarity or distinctiveness or expertise expected of admissible evidence.  Again, that is a matter of degree to be assessed in the circumstances of each case.

In the present case, the voice recorded on Exhibit D was first identified by Detective Sergeant Wilding.  A comparison with the appellant's voice at the trial was permitted to confirm or to cast doubt on Detective Sergeant Wilding's evidence and to rebut or to support the appellant's suggestion that Exhibit H had been fabricated.  The jury heard the appellant's accented voice for 40 minutes during the making of his unsworn statement and were in a position to assess for themselves whether that auditory experience equipped them to make a comparison with the voice on Exhibit D.

To deny the jury the right to take into account probative material that they had heard with their own ears would have been to impose - or to attempt to impose - an artificial restraint on the jury's employment of their common sense.  It would have been as erroneous as it would have been futile to direct the jury to ignore the voice they had heard when the accused made his unsworn statement.  There was no reason why, subject to a satisfactory warning, the jury should not have had regard to the sound of the appellant's voice in determining whether the appellant's voice had been recorded on Exhibit D.

1. The adequacy of the warning

To warn the jury against the risk of an uncritical reliance on a comparison between Exhibit D and what they heard at the trial, his Honour directed the jury as follows:

"      Now members of the jury, I have said already, that you may compare the voice on the tape with your memory of the accused's voice when he gave his statement in court.  Having said that I wish to add this.  You must be careful in what you do if you do that.  You must be careful because, do not overlook the fact, that the recording device is different from being in court hearing it spoken, that the playback device to play back the tape may be different between what you have heard in the jury room and what you have heard in court and you have already been told, that this method that we have in court is a better method than a tape recorder playing back a tape.  And moreover, do not overlook the place at which the voice was recorded if you conclude that it was in fact recorded.  You will remember that there was conversation outside a residence, there was conversation in a car, there was conversation at McDonald's [that is, the car park], quite different places than being in this court room or being in the jury room.  So remember that and be careful, be cautious if it be that you do compare what you hear on the tape with your memory of the accused's voice when he made his statement."  (Emphasis added.)

His Honour did not draw the jury's attention to any risk of mistaking one accented voice for another, but there is nothing to show that there was any such risk.  It may be that the accent and intonation of the appellant's speech combined to make the speech distinctive.  Indeed, the learned trial judge went on to direct the jury not to bear the accused's unusual manner of speech against him.

In my opinion, this warning was adequate to alert the jury to both the risk, and the nature of the risk, of reliance on a comparison of the voice on Exhibit D and the appellant's voice while making his unsworn statement.  Other judges may have framed the warning in different terms but the sufficiency of a warning is not assessed by reference to a formula nor by postulating a hypothetical warning against risks of which a reasonable jury would be as well aware as the trial judge.  The terms of a warning must be determined by the trial judge by reference to the live issues at the trial, not by reference to abstract possibilities that might later be contemplated for submission to a court of appeal.  A jury should be reminded to be cautious before acting upon evidence of voice identification.  Such a warning was given by the learned trial judge in this case.

(iii)  The tape recording of the unsworn statement

When a jury asks to be reminded of certain evidence given at a trial and the evidence has been recorded by tape recording, the playing back to the jury of the relevant part of the tape may be a convenient and appropriate means of providing the reminder.  Just as there is no objection to a judge reading to the jury the judge's note of the evidence or the relevant part of a transcript, if a transcript has been produced, generally speaking there can be no objection in principle to the playing back of the relevant part of the tape[8].  The accuracy of the tape recording marks it as the preferable mode of furnishing the reminder.  At least, that is the situation where the playing back of the tape could reasonably be expected to have no significance in the trial other than reminding the jury of what had been said in evidence.

In the present case, the jury had asked for the tape recording of the appellant's unsworn statement (hereafter "the trial tape") to be played back to them and the judge agreed to have this done in the court room which was fitted with headphones.  The playing back of the trial tape could have had a significance other than merely reminding the jury of what the appellant had said.  It placed before the jury the recorded sound of the appellant's voice and, if that sound were different from the original sound, that sound may have affected the jury's determination of the truth of Detective Sergeant Wilding's assertion that the appellant's voice was to be heard on Exhibit D.  However, the jury were not invited to use the trial tape as an independent basis of comparison with the sound of the voice recorded on Exhibit D; rather, they were directed that they were entitled to compare the voice on Exhibit D with the voice of the appellant at the trial as the jury remembered it, that memory being refreshed by the playing back of the trial tape.

There is nothing to suggest that the trial tape distorted the sound of the appellant's voice.  Modern recording equipment used in the controlled auditorium of the courtroom usually reproduces sound with a fidelity that is likely to be more accurate than human recollection.  There can be no objection to refreshing the jury's recollection of what they have heard by means which, to the judge's satisfaction, faithfully reproduce the sound[9].  Of course, if the judge discovers that the reproduced sound is defective in some material respect and the defect is relevant to the issues in the trial, the tape should not be played.  No objection was taken to the quality of the sound reproduction of the appellant's unsworn statement.  There is no reason shown or suggested why the trial tape should not have been used as a reminder of the sound of the appellant's voice as heard by the jury.

1. Procedural regularity

There is a further question whether the playing back of the trial tape after the close of evidence and counsel's addresses - indeed, after the summing up - was a procedurally regular means of allowing the jury to be reminded of the sound of the appellant's voice. The appellant's counsel submits that the provisions of s 402 of the Crimes Act 1900 (NSW) precluded the jury from having the trial tape played back to them after the close of evidence. Section 402 reads as follows:

"      Every accused person shall, in all Courts, be admitted to make full answer and defence by counsel, and in every case may reserve his address until the close of the evidence for the defence, and in the latter case, all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence." (Emphasis added.)

In my opinion, s 402 had no application to the playing back to the jury of the tape recording what had transpired at the trial. A tape recording of something that has occurred out of court - Exhibit D, for instance - is evidence in the sense that it is material which either the prosecution or the defence may tender in order to prove or disprove a relevant fact. Evidence of that kind must be tendered by the Crown at a stage of the trial before the address for the defence commences[10]. But a tape recording of what transpires at the trial is not "evidence" to which s 402 applies. A tape recording of what has transpired at the trial is not available to be tendered by either the prosecution or the defence. A tape recording of what has happened during a trial is, during that trial, part of the court's own records. The use to be made of it remains under the control of the court. Its production to a party in the trial for the purposes of the trial cannot be called for as on a subpoena: the court will not issue a subpoena to itself. The judge may permit it, or a part of it, to be tendered as an exhibit if there be some special reason to do so but, in the ordinary case, such a tape is merely a memory aid to be used as such. It seems that it was so used in the present case.

The playing back of such a tape recording for the jury, like the provision of a transcript of a passage of evidence[11], is a matter of practice under the exclusive and discretionary control of the trial judge.  The judge is bound to exercise his or her discretion to ensure fairness in the trial and, if a tape is played back, may need to give the jury a suitable instruction as to the use to be made of what is played back[12].  In general, a tape recording of what has happened during the trial should be played back in the courtroom in the presence of the judge, counsel and the accused[13].  Thereby any risk of undue emphasis on the evidence which has been played back can be avoided.  In the present case, it was a tape recording of the appellant's unsworn statement that was played back and there was no risk of the jury placing undue emphasis on that statement to the prejudice of the appellant.

I would dismiss the appeal.

TOOHEY AND GAUDRON JJ. The appellant was convicted, after a trial before a judge and jury, of an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge on which he was convicted read:

"For that he on 4 July 1990 at Blacktown in the State of New South Wales, did supply a prohibited drug, to wit, heroin 82.66 grams."

His appeal against conviction to the Court of Criminal Appeal of New South Wales was dismissed.  His appeal to this Court turns largely on the use the jury were permitted to make of a tape recording of the appellant's unsworn statement for the purpose of determining whether a voice on a tape recording of conversations with a police officer was that of the appellant.

The prosecution case

The main evidence against the appellant was that of Detective Sergeant Wilding, an undercover police operative.  Wilding was fitted with a transmitting device for the purpose of recording conversations with the appellant.  In what follows it should be understood that at times Wilding gave evidence in some detail but that at other times he simply played a portion of the tape and acknowledged it as a correct record of what was taking place at the time.  He said that on the day in question he and an informer went to the appellant's premises.  He waited in the car whilst the informer went into the premises and reported back.  At 5.45 pm Wilding and the informer went to the back door of the premises and spoke with the appellant, apparently confirming that the appellant would sell Wilding four ounces of heroin for $50,000 in cash.  The three of them went to Wilding's car and Wilding got the money out of the boot.  Wilding and the appellant sat in the car and the appellant counted the money.  They arranged for an exchange to take place an hour later, at 7 pm, in a McDonald's car park.

Approximately one and a half hours later Wilding and the informer drove to the specified car park.  The informer got out and went into McDonald's and came back with the appellant and the three of them had a conversation in the car.  Later, the appellant and Wilding left the car and had a conversation in which the appellant pointed to a nearby tree where he said that he had "three ounces" and that in return for the money he would give this to Wilding and take him to his place where he had another ounce.

Wilding went back to the car and the appellant got a package containing a white rock like substance from under a tree and brought it back to show Wilding.  Wilding commented that the substance was like a "house brick", this being a signal for the watching police to intervene.  Wilding told the appellant to wait in the car while he got the money from the boot.  While he was doing so the appellant saw the police, started to run and was arrested.

Evidence of the appellant having picked up the package and taken it back to show Wilding was also given by Detective Senior Constable Kempnich, Detective Senior Constable Greville and Detective Senior Constable Eardley.  Greville searched the appellant in the presence of other officers and located the package which was later found to contain 82.66 grams of heroin, or just under three ounces.  The police then went to the appellant's premises where they found a set of scales carrying white powder residue and a silver foil of white powdered rock which proved to have a similar chemical analysis to the drugs seized at the car park.

The defence case

The appellant's explanation for events, as put by him in his unsworn statement[14] and by his counsel in cross‑examination of the prosecution witnesses, was that on the day in question the informer, whom he had known for a while, came to his house and said he had someone (who turned out to be Wilding) interested in buying the appellant's Mitsubishi Starion.  Wilding did not come to the house; instead the appellant went out to where Wilding was parked.  He told Wilding that his fiancee had gone out in the car so they arranged to meet, with the car, at the McDonald's car park.  Wilding showed him money but he did not count it.

His fiancee did not get back in time so he caught the train to the meeting place, leaving a message for her to call.  (This was consistent with admissions by police, who searched the appellant's premises, that a Mitsubishi Starion owned by the appellant was outside the premises but that no vehicle of the appellant's was found at the scene.)  While he was waiting for his fiancee to call him, the appellant spoke with the informer and Wilding.  He happened to drop some tobacco near the small tree and it was that, rather than the package of drugs, that he was seen picking up.  Wilding suggested he might be interested in drugs in exchange for the car.  He declined and the next thing he knew he was being arrested.

The appellant denied being shown the drugs at the scene, his counsel putting in cross‑examination that he was only asked about them later at the police station.  He denied having been in possession of drugs, his case being that the whole thing was a "set up" and that (as police witnesses admitted he had claimed from the start) Wilding had offered him drugs in exchange for his car.  He also denied having seen previously the alleged powder on the scales or the foil of drugs.  Counsel also put in cross‑examination that other items, including a cassette with the appellant's voice on it, had been taken from his house.

The tape recording

To support its version of events the Crown relied upon the tape recording, the complete version of which was tendered as Ex H[15].  Wilding gave evidence that at the time of the conversations at the back door, in the car and later in the McDonald's car park he had been fitted with a transmitting device.  Detective Sergeant Kaufmann gave evidence that he was in a vehicle fitted with receiving equipment and that he received transmissions from Wilding from 5.31‑5.35 pm, 5.39‑5.44 pm, 5.46‑5.59 pm and from 7.37 pm.  The first two of these transmissions were apparently conversations between Wilding and the informer; they were deleted from a copy tendered as Ex D[16].  The third transmission apparently covers the conversation at the back door of the appellant's premises and in the car.

The final transmission relates to the conversation in the McDonald's car park.  While the appellant (as alleged by Wilding) is recorded as indicating that the drugs are under the tree, the recording stops sometime before the appellant says he will get the drugs.  According to Kaufmann, this was because the machine's automatic switchover failed to turn the tape over at the end of the first side.  Wilding said that he realised the omission when the tape was played to him that evening and he immediately made notes of the conversation that occurred from that point on.

In his evidence Kaufmann said he thought the original tape was a C60 with "30 minutes a side or thereabouts".  According to the police surveilling the operation the appellant met with Wilding at 7.45 pm, showed him the package he had retrieved at around 7.50 pm and was arrested at 7.54 pm.  Assuming just over 30 minutes a side, this means that the recording stopped not long after 7.45 pm and so would have recorded only a few minutes of Wilding and the appellant's conversation in the car park.  It means that in total only about 15 minutes of conversation with the appellant was recorded.

Neither Ex D nor a transcript of it was provided to this Court.

The trial

As mentioned earlier, the tape was played to the jury during the course of Wilding's evidence.  The voices on it were identified by Wilding as his, the appellant's and the informer's.  Portions of the transcript were also read in the course of the trial judge's charge to the jury.

Defence counsel closed his case with an unsworn statement from the appellant which concluded:

"PAPAYANNI: Do you want to say something about what was said on the tapes?

ACCUSED:     Well I don't remember saying anything on the tapes ...

PAPAYANNI:  Did you want to say something about the voices on the tapes?

ACCUSED:     Well I can't recognise my voice on it.  You can - this technology can do anything I suppose."

Before this Court counsel for the respondent submitted that the issue whether the appellant's voice was on the tape arose by reason of his unsworn statement.  But that is not so.  The trial judge pointed out to the jury that the two cases were "diametrically opposed".  For example, in his cross‑examination of Wilding, defence counsel put that, contrary to what is recorded on the tape, Wilding did not speak to the appellant in the doorway of his house but only when the appellant came out to where Wilding was parked:

"Q.  ... what I put to you is that the accused didn't speak to you at all at the house?

A.  Well that's totally incorrect, the tape stands for itself.

Q.  That only at the car?

A.  That's incorrect."

Later in the cross‑examination of Wilding:

"Q.   Well what I put to you also is that when you were at McDonalds the conversation as recorded didn't occur with the accused?

A.    That's not correct, the conversation did occur.

Q.    See one of the first things that he said to you when he came, you asked about the car?

A.    No that's not correct.

Q.    And there was conversation about the car?

A.    No, no, there was conversation about the gear meaning the heroin and he said 'I've got it.  It's ...' ... there was never any conversation about any car."

At the very least defence counsel suggested that the tape was incomplete in that Wilding had used his ability to turn off the transmitter during his conversation with the appellant to omit any discussion about meeting at the McDonald's car park so that Wilding could see the Starion:

"Q.   ... either you [ie Wilding] or [the informer] made arrangements to meet ... at McDonald's in order that the accused could bring his car there?

A.    No.  If you listen to the tape ... that conversation never occurred."

The trial judge summarised the matter in this way:

"Neither Sergeant Wilding nor Sergeant Kaufmann were asked whether the tape was fake.  It was put to Sergeant Wilding that the conversation on the tape did not occur.  You may think that is tantamount to suggesting the tape is fake.  If it is, what you think, then you are entitled to think it.  But it was not put to either of those sergeants as blatantly as was put to you by Counsel for the accused."

It is not clear from the material in the appeal book (which does not include final addresses) whether defence counsel was putting to the jury that the voice on the tape was not the appellant's or that the police had somehow produced a tape by using the cassette of the appellant's voice said to have been taken during the search of his premises.  Certainly, insufficient groundwork had been laid for the latter possibility.  The trial judge's charge assumes the former because he noted that Wilding identified the voice on the tape as the appellant's.  He then went on:

"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 whether he is the third speaker on the tape."

This direction does not appear to have been prompted by anything said in the Crown's final address.  Rather, during a break in the trial judge's charge, the jury had asked for the accused's unsworn statement, which had been recorded, to be played to them.  There is no doubt that the request was to enable the jury to compare the appellant's voice on that tape with the voice on Ex D.

Before the unsworn statement was played to the jury, counsel for the appellant referred to the comments of Campbell J in R v Morgillo[17] and O'Brien CJ of Cr D in R v EJ Smith[18] and argued that because the voice on Ex D did not have a distinctive quality and the jury did not have a long acquaintance with it, they should not be allowed to make their own assessment as to whether the voice on the tape was that of the appellant.  These comments appear to have been addressed to both the judge's permitting the jury to use their memory of the appellant's unsworn statement for the purpose of comparing it with the voice on Ex D and also to the playing of the tape of the unsworn statement for this purpose.

Counsel for the prosecution replied that the cases requiring the voice to be either distinctive or that there be prior familiarity apply

"where there is no record of the voice, where somebody says, I heard the voice of the offender and then, some time later I heard a voice somewhere else and I put them together, well in those situations it needs to be either distinctive or known but here we have a record of the voices, we have a record on tape with the person talking to Wilding, a record on tape of the person who spoke in this court room ".

The trial judge agreed but, in accordance with the prosecution's suggestion, he warned the jury of the difficulties in comparing tapes recorded in places with different acoustics.  He also told them not to "bear ... against" the appellant the fact that English was not his "mother tongue".

The appellant's argument in this Court went directly to the jury being permitted to make use of any material for the purpose of determining whether it was the appellant's voice to be heard on Ex D. The appellant also complained of what was said to be a procedural irregularity in that the jury were permitted to hear the tape of the appellant's unsworn statement after the evidence had been heard, counsel had addressed and the judge had delivered the summing‑up. This was said to involve the introduction of evidence in contravention of s 402 of the Crimes Act 1900 (NSW) which reads:

"      Every accused person shall, in all Courts, be admitted to make full answer and defence by counsel, and in every case may reserve his address until the close of the evidence for the defence, and in the latter case, all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence."

Although counsel for the appellant tended to put this point at the forefront of his argument, it is convenient to look first at the more fundamental challenge to the use of the tapes by the jury.  In this regard the respondent's primary position was that, contrary to the appellant's submissions, "it was not a case where the jury were being asked to indulge in voice identification".  Rather, said counsel, it was a case of "voice comparison".  It is important to see the way in which counsel put the matter to this Court:

"The situation here was that the undercover police officer, Wilding, had given evidence of certain conversations that he had with the appellant and part of the conversations that he had with the appellant was the conversations on the tape.  There were conversations which had been recorded and Wilding did not give those, they just played the tape, but there were other conversations which, because of a problem with the tape, did not get recorded, and in that situation, in relation to those conversations, Wilding actually gave evidence of the conversation that he had with the appellant."

Detective Sergeant Wilding identified on the tape three voices:  his own, that of the undercover operative and that of the appellant.  It is correct, as counsel observed, that the jury were not, strictly speaking, engaged in voice identification because there was direct evidence from Wilding, which the jury could accept or reject, that the tape was of a conversation he had with the appellant.

It is true that the situation here is different from that in which a witness is called to identify a voice, whether on a tape or otherwise, by reason of that person's familiarity with the speaker or, in the case of an expert witness, by reason of an opinion that the voice on the tape is the same voice as that which the witness has heard and which is acknowledged to be, or has been established to be, that of the accused.  Nevertheless, there was only one reason why the jury asked and were permitted to use the tape of the appellant's unsworn statement; it was so that they might be assisted in reaching a conclusion whether it was his voice on Ex D.

Anterior to the question of the tape of the appellant's unsworn statement, there is the matter of the jury using their recollection of the appellant making his unsworn statement in order to make some comparison with the voice on the tape.  Counsel for the appellant accepted that such a comparison was not necessarily objectionable though he argued that it was objectionable in the present case.  If, for instance, an accused represented himself at a trial which extended over several days, in the course of which the jury heard him cross‑examine witnesses, exchange remarks with the judge and prosecutor and then give evidence or make an unsworn statement, counsel accepted that this could provide the jury with a sufficient opportunity to make a comparison with a voice on a tape.  In other words, the objection to that comparison went to the inadequacy of the material the jury had available to them to make any worthwhile comparison.

Voice identification

The leading New South Wales authority on voice identification is the decision of O'Brien CJ in R v EJ Smith[19] to which the trial judge's attention was directed.  A murder took place during an armed robbery.  The victim's daughter heard the events taking place and, when she heard the accused conducting his own defence nine months later in other proceedings, she identified him as one of the perpetrators.  On a voir dire to determine whether the evidence of the identification was admissible, O'Brien CJ reviewed the Canadian and United States authorities and some of the problems with voice identification.  He concluded that[20]:

"evidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime, or that the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the same very distinctive features as had the voice at the crime."

O'Brien CJ admitted the evidence of the victim's daughter on the basis that, using their own recollection of how the accused conducted his own defence, the jury would be entitled to find that the accused's voice had "highly distinctive features" which could "leave an indelible mental impression"[21].  While the Court of Criminal Appeal[22] (Lee J, with whom Street CJ and Maxwell J agreed) approved O'Brien CJ's statement of the law, it allowed an appeal on the basis that he had not adequately emphasised the need for the jury to be satisfied that the circumstances under which the witness subsequently heard the accused speak (as disclosed by a tape recording of the portion of the other proceedings the witness heard) were sufficiently similar to the circumstances in which she originally heard the voice.  The Court said that it was for the jury to decide whether the voice in question demonstrated characteristics "so unique and distinctive as to make acceptable the witness's claim that she could not be mistaken"[23].

Smith was approved in R v Brownlowe[24] and Corke[25] (but distinguished because the voice identification was in conjunction with visual identification) and R v Brotherton[26] (where 10 minutes conversation two days prior to the crime would not have been regarded as sufficient to render voice identification admissible had there not been some visual identification also).  However, courts in Tasmania[27] and Victoria[28] have declined to follow Smith, holding that lack of such distinctiveness as will have left an indelible mental impression goes to weight rather than admissibility[29].  In R v Harris (No 3)[30] Ormiston J examined the discretion of the trial judge to exclude evidence of voice identification where it was insufficiently probative.

Voice comparison

The significance of these decisions lies in the use the jury were permitted to make of the accused's voice as heard by them in order to accept or reject the evidence of a witness that a voice heard at the scene of an offence was that of the accused.  The present case is of course different because the jury had access to the voice itself, by means of the tape recording Ex D.  The question is whether the jury might make a comparison of that voice with the voice of the accused as heard making an unsworn statement, together with the tape recording of that statement, in order to determine whether it was the appellant's voice on Ex D.

Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice.  Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently.  The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness.

Where two voices are being heard side‑by‑side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made.  By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery.  It is in this sense that counsel for the respondent stressed that, notwithstanding that the aim is still to identify the voice on the tape, the exercise is one of voice comparison rather than identification from memory.

As to the quality and quantity of the material being compared, clearly the greater the amount of material, the greater the similarity in the circumstances in which the voices were spoken or recorded and the greater the number of similar words used, the more useful the comparison.  A jury would also benefit from hearing the material more than once so as to enable them to concentrate on both similarities and dissimilarities.  Counsel for each side should have the opportunity to point out or emphasise particular similarities or dissimilarities to the jury.  The defence may wish to call expert evidence where the jury may have difficulty in drawing a distinction between two voices of a particular nationality or dialect.

Application to present facts

In the present case the jury heard, during the trial, a recording of conversations said to involve the appellant.  The recording lasted not more than 15 minutes and there were three speakers.  It was replayed to the jury just before they retired along with a tape of the appellant's unsworn statement.  The latter lasted about 40 minutes and had been made the previous day.  The jury were warned to consider the different acoustics and not to bear it against the appellant that English was not his mother tongue.

There appear to be only two Australian cases involving comparable situations.  The first is Smith, Ashford & Schevella[31].  Ashford argued that the trial judge should not have directed the jury that they were entitled to compare how he sounded in his unsworn statement with the taped voice alleged to have been his in order to decide whether it was Ashford's voice on the tape.  The Victorian Court of Criminal Appeal rejected the argument saying[32]:

"      It is to be observed that in the present case the judge gave carefully framed and detailed warnings to the jury as to any dangers involved in voice identification."

The comment may be made that this was not truly a case of voice identification, but rather of voice comparison.

The second case is the New South Wales decision of R v Morgillo[33] which was referred to at the trial.  In that case Campbell J directed the jury that they could not compare their memory of how the accused spoke during his 36 minute unsworn statement with the voice on tapes.  He did so on the basis that, applying Smith, either the voice needed to be distinctive or there needed to be prior familiarity.  The Crown conceded that 36 minutes was not enough to generate prior familiarity and Campbell J considered that the voices involved were not sufficiently distinctive for distinctiveness to be left to the jury.

In the present case Carruthers J (with whom Hunt CJ at CL and Bruce J agreed) doubted whether Campbell J's ruling was correct and suggested that a 40 minute unsworn statement plus replay would amount to prior familiarity.  His Honour said:

"It was only a question of whether the appropriate comparison could be made.  Of course, in making that comparison, it was necessary for the jury to be satisfied that they had heard sufficient to consider that they were familiar with the appellant's voice, bearing in mind that it is common ground that there is no distinctive quality in his voice. ...

I would have absolutely no doubt, having read the entire transcript and the entirety of his Honour's summing‑up, that the jury would have approached their task upon the basis that they would not have made a finding adverse to the appellant on the issue of voice identification without having been satisfied to the requisite standard that they had acquired sufficient familiarity with his voice."

However, the issue here is not whether the appellant's voice was so distinctive as to be embedded in the listener's memory or whether the jury had prior familiarity.  Rather, the question is whether there was enough material of sufficient quality to make the comparison and whether the jury were properly warned of the difficulties involved.  In that regard, the trial judge said:

"Now members of the jury, I have said already, that you may compare the voice on the tape with your memory of the accused's voice when he gave his statement in court.  Having said that I wish to add this.  You must be careful in what you do if you do that.  You must be careful because, do not overlook the fact, that the recording device is different from being in court hearing it spoken, that the playback device to play back the tape may be different between what you have heard in the jury room and what you have heard in court and you have already been told, that this method that we have in court is a better method than a tape recorder playing back a tape.  And moreover, do not overlook the place at which the voice was recorded if you conclude that it was in fact recorded.  You will remember that there was conversation outside a residence, there was conversation in a car, there was conversation at McDonald's, quite different places than being in this courtroom or being in the jury room.  So remember that and be careful, be cautious if it be that you do compare what you hear on the tape with your memory of the accused's voice when he made his statement.  And remember this also about the accused's speech or the manner of it that, he may not, well it is clear that English is not his first language, it is not his mother tongue and when you heard his statement bear in mind that he does not use English as fluently as you might use English that he uses English in a quite different manner.  You must not bear that against him, he is entitled for your consideration without reference to the manner of his speech."

This Court would be slow to depart from a trial judge's assessment that material was of sufficient quality and quantity for the jury to be permitted to make the necessary comparison.  The question rather is whether the jury were given sufficient warning of the difficulties involved.  While they were properly alerted to differences in the acoustics, they were not told to consider:  (a) the different contexts in which the taping took place, namely, at the appellant's home, in the car and in the car park on the one hand and in the courtroom on the other; and (b) the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury were not familiar.  The reference to English not being the appellant's mother tongue was insufficient.  Indeed the risk, where an accused's first language is not English, is that a jury might conclude too readily that a foreign accent on a tape is that of the accused where the accents are similar.  Furthermore, counsel should have been given an opportunity to address the jury in regard to the comparison, though it must be acknowledged that neither counsel asked for the opportunity.

Domican v The Queen[34] was concerned with visual identification.  Nevertheless, the following passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ is particularly apposite[35]:

"      Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed[36].  The terms of the warning need not follow any particular formula[37].  But it must be cogent and effective[38].  It must be appropriate to the circumstances of the case[39].  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'[40].  A warning in general terms is insufficient[41].  The attention of the jury 'should be drawn to any weaknesses in the identification evidence'[42].  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[43].  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."

Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for.  It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert[44].  It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison.  This was not done in the present case.

Other grounds of appeal

There was a further ground of appeal, namely, that an unsworn statement is not evidence hence the jury were not entitled to make any use of a tape of that statement, at least not unless the tape had been formally admitted in evidence.  In R v Morrison[45] Windeyer J, with whom Stephen and Foster JJ agreed, said that an unsworn statement "was not evidence in the sense that the word 'evidence' has always been understood in British Courts of justice".  In Edwards v Director of Public Prosecutions (Cth)[46] the Court held that an unsworn statement made by an accused person at trial was not "testimony" for the purpose of s 35(1) of the Crimes Act 1914 (Cth) which made it an offence to knowingly give "false testimony" in any judicial proceeding. The Court said[47]:

"Although an unsworn statement, like oral evidence, is capable of obtaining credence for what is stated:  see Peacock v The King[48], it is not oral evidence."

While the unsworn statement made by the appellant was not, strictly speaking, evidence, it was material available to the jury which they could make use of in the same way in which they might use the appearance and manner of the accused in court where appearance and manner were relevant.

There is no reason why a jury should not have access to an exhibit, including a tape, after retirement[49].  The tape of the unsworn statement was not an exhibit.  However, if the jury is entitled to have regard to the accused's voice in making an unsworn statement, for the purposes of comparison, it is hard to see why they should not have access to a tape recording of that statement, there being no suggestion that what they were hearing was not the accused's unsworn statement.  It is one thing to say, as is said earlier in these reasons, that the trial judge should have given the jury comprehensive directions regarding their use of the tape recording and that counsel should have been permitted to address the jury on that aspect.  It is another thing again to say that the tape recording, which was part of the Court's own records and was to be used by the jury for the purpose of refreshing their recollection of the appellant's voice when making his unsworn statement, had first to be formally admitted in evidence.  We do not think that was necessary.

As to the appellant's argument that it was contrary to s 402 of the Crimes Act 1900 (NSW) for evidence to be admitted after defence counsel's address, the section precludes only "evidence in reply for the Crown". The tape of the unsworn statement was played to the jury at their request.

The conclusion we have reached makes it unnecessary to consider the appellant's argument that the playing of the tape offended the rule against self‑incrimination.  But in our view the argument should be rejected.  The rule was not offended, any more than it would have been if the jury had used the physical aspects of an accused where identification was in doubt.  As the respondent rightly contended, the sound of the appellant's voice was real evidence and non‑testimonial.  It therefore did not attract the privilege against self‑incrimination[50].

Miscarriage of justice?

The Crown's case was that the appellant offered to sell Detective Sergeant Wilding drugs which he knew to be hidden under a small tree in the McDonald's car park.  It was supported by Wilding's evidence of what the appellant had said to him as well as the evidence of other police that they had seen the appellant retrieve the package.  The defence case was that it was a set up, that the drugs were planted and that the police had manufactured their evidence.  To support their account of events the police submitted the tape which contained no reference to the appellant's Mitsubishi Starion story but did record the proposed transaction, with someone said to be the appellant indicating that drugs were under the tree.

Had the jury been satisfied by the testimony of the police then clearly there was sufficient evidence to convict the appellant.  However, had members of the jury been unsure of the veracity of the police witnesses, the fact that they considered the voice on the tape to be that of the appellant may have been crucial in satisfying them beyond reasonable doubt.  The trial judge said in sentencing the appellant:

"In my view the evidence of the tape recorded conversation was overwhelming.  Although one cannot be sure as to what a jury might do, in view of the tape recorded conversation, it seemed to me that, as night follows day, a conviction was inevitable.  The tape recorded conversation was, it seemed to me, in the same voice as the prisoner's statement to the jury.  It was obvious, it seems, that the jury took the same view."

However, the fact that it was the jury who asked to hear the recording of the appellant's unsworn statement suggests strongly that they or one or more of them had doubts about the identity of the speaker on Ex D.

In Domican the majority concluded[51]:

"But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

In the circumstances of the present case it cannot be said, and the Court was not asked by the respondent to say, that the proviso should be applied on the basis that, notwithstanding that the directions were inadequate, there was no miscarriage of justice.

The appeal should therefore be allowed, the appellant's conviction quashed and a new trial ordered.

McHUGH AND GUMMOW JJ.   The principal question in this appeal is whether, after the conclusion of the summing up in a criminal trial, the jury can listen to a recording of the accused's unsworn statement for the purpose of determining whether a voice on another recording is the voice of the accused.

In our opinion, the jury may always use a recording of the evidence or unsworn statement which has been given or made by the accused during the trial to refresh their recollection of that evidence or statement.  However, one of the issues of the trial may be, as in this case, whether another recording which was made out of court and which is in evidence contains the voice of the accused.  In that situation there is a great risk that the jury will use the recorded voice of the accused's statement or evidence as "real evidence" and compare it with the voice of that other recording.  Consequently, the recording of the accused's evidence or statement should only be played to the jury if that recording has been admitted into the evidence and the accused has had an opportunity to meet any arguments of the Crown based on the recording.  In this case, the recording of the accused's statement was played without being admitted into evidence with the result that the conviction of the accused must be quashed.

The factual background

Anton Bulejcik ("the accused") was convicted of supplying heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to a minimum term of three years imprisonment and an additional term of three years. The New South Wales Court of Criminal Appeal dismissed his appeal against his conviction. Pursuant to the grant of special leave, he now appeals to this Court.

The prosecution alleged that, on 4 July 1990, Detective Sergeant Wilding, an undercover police operative, who had been fitted with a transmitting device, went to the accused's home in the company of an informant.  Wilding agreed to buy four ounces of heroin from the accused for $50,000.

They later met in a car park at a McDonald's store.  At the car park, the accused retrieved a white rock substance in a bag from under a tree and showed it to Detective Sergeant Wilding.  The accused said:  "That's the stuff, mate, very pure, very good", and later:  "That's three ounces, I have the rest at my place.  You give the money now and we go there.  You follow me".  Wilding said he would get the money out of his car.  Police officers who were stationed nearby then intervened and arrested the accused who had attempted to run away when he saw them approaching.  One of them searched the accused and found the package which was later identified as containing just under three ounces of heroin.

At the accused's home, the police officers found a small foil of white powder and a set of scales which had white powder on them.  The accused admitted that he owned the scales but said they were used to measure paint and that the powder on them was paint powder:  "Is not drugs, is paint powder.  That's all I tell you.  You so smart, you work out".  Both powder substances were later analysed as chemically similar to the heroin found on the accused at the McDonald's car park.

The conversations between Detective Sergeant Wilding and the accused were transmitted to and recorded on tape by police officers who were monitoring the operation.  In his evidence, Wilding said that the tape did not record the whole of the conversations, probably because of an operational failure in the equipment.  The tape was tendered by the Crown and played to the jury.  No transcription of the tape was tendered or marked for identification.

As part of his defence, the accused made an unsworn statement denying any criminal wrongdoing and asserting that the police had framed him.  He said that Wilding had spoken to him about buying his car and had offered him drugs in exchange for the car, an offer which he refused.  He denied that he had drugs in his possession or in his home.  The accused also said:  "Well I can't recognise my voice on it [the tape].  You can - this technology can do anything I suppose."  His counsel asserted that the police tape was a fake, although no evidence was tendered as to how the police had faked the tape.

The trial of the accused was sound recorded.  At some stage, probably before the summing up commenced, the jury requested that the tape recording of the accused's unsworn statement and the police tape be played to them.  Counsel for the accused objected to this procedure.  But the learned trial judge permitted it to be done after the summing up had concluded although the recording of the accused's statement was not tendered in evidence.  The question in the appeal is whether, in these circumstances, a judge can permit such a course without allowing the Crown to re-open its case and tender the recording and without giving the accused an opportunity to call evidence in rebuttal and address the jury on the issue.

The judge's directions

During the course of the summing up, the learned trial judge told the jury: "[Y]ou can use your memory of his voice in relation to ascertaining the third voice on the [police] tape".  Shortly before the jury retired, the learned trial judge also said:

"I have said already, that you may compare the voice on the tape with your memory of the accused's voice when he gave his statement in court.  Having said that I wish to add this.  You must be careful in what you do if you do that.  You must be careful because, do not overlook the fact, that the recording device is different from being in court hearing it spoken, that the playback device to play back the tape may be different between what you have heard in the jury room and what you have heard in court and you have already been told, that this method that we have in court is a better method than a tape recorder playing back a tape.  And moreover, do not overlook the place at which the voice was recorded if you conclude that it was in fact recorded.  You will remember that there was conversation outside a residence, there was conversation in a car, there was conversation at McDonald's, quite different places than being in this court room or being in the jury room.  So remember that and be careful, be cautious if it be that you do compare what you hear on the tape with your memory of the accused's voice when he made his statement.  And remember this also about the accused's speech or the manner of it that, he may not, well it is clear that English is not his first language, it is not his mother tongue and when you heard his statement bear in mind that he does not use English as fluently as you might use English that he uses English in a quite different manner.  You must not bear that against him, he is entitled for your consideration without reference to the manner of his speech."

It seems unrealistic to think that the jury used the sound recording merely to refresh their recollection of the accused's unsworn statement and then compared the police tape with their prompted recollection of the accused's voice while giving his statement.  The jury probably asked to hear the tapes before the learned trial judge summed up but certainly before he gave the direction that they could compare the voice on the police tape with their memory of the accused's voice when he gave his statement to the court.  In making their request, the jury almost certainly wished to compare the two recorded voices, not their recollection and one recorded voice.  They were certainly more interested in the sound of the accused's voice than they were in the content of his statement.  At the end of the summing up, Nield DCJ offered the jury a choice between having a transcript of the accused's statement and hearing the tapes.  But the foreperson said, "Play the tapes your Honour."  The tapes were then played.

Significantly, the Crown Prosecutor thought that the jury would use the recording of the unsworn statement to compare the two recorded voices.  During an adjournment of the summing up, the Crown prosecutor said to his Honour:

"[W]ell they are obviously taking up what I was going to suggest that they could use the equipment in court to listen to the tape but, your Honour as they have asked to hear both the unsworn statement tape and the, or one of the, the listening device tapes, in my submission it would be appropriate to your Honour to express some words of caution as to, if they are endeavouring to compare voices on those tapes in that the equipment to record those two tapes is different, the equipment to play it back I perceive will be different and the acoustics in which the records are made were different.  So that they should, just be a little bit cautious about that exercise."  (our emphasis)

The probability, therefore, is that, notwithstanding the trial judge's statement that the jury could "compare the voice on the tape with your memory of the accused's voice", the jury made a direct comparison between the sound of the voices on each tape.  That was obviously the intention of the jury when they asked for both tapes to be played.  They may not have grasped the subtle but vital distinction between using the recording to refresh their recollection of the voice in the dock and using it as a basis of comparison with the police tape.  Furthermore, the learned judge did not direct the jury that they could not compare the recorded sounds on one recording with those on the other.  In any event, it would have taken a superhuman effort for the jury to maintain a distinction between refreshing their recollection of what they heard the accused say while making his statement and what they were hearing as the recording was played.  Very likely, therefore, they compared the sounds on the recording with the sounds they had just heard on the police tape.  At all events, the risk of that having occurred is too high to feel confident that they did not.

This appeal must therefore be considered on the basis that there is a real chance that the jury compared the recorded sound of the accused's statement with the police tape.  So, the issue in this appeal is whether the jury was entitled to make the comparison and whether, in the circumstances of this case, the judge should have refused to allow the recording to be replayed.

The admissibility of voice identification evidence

Mr Papayanni, counsel for the accused, contended that the recording of the accused's statement should not have been played to the jury because it did not meet the conditions upon which voice identification evidence is admissible.  He contended that hearing the accused's statement for forty minutes was not long enough to enable the jury to become familiar with the accused's voice.  It followed, he said, that the jury were unqualified to make a comparison between the two recordings.  His argument relied on cases concerning the admissibility of evidence from a witness who claims to identify the voice of the accused with a voice heard at the scene of a crime.

Evidence that a voice heard at the scene of a crime was the voice of the accused is admissible even if the evidence is given by a lay person[52].  The conditions for the admissibility of such evidence are the subject of conflicting decisions in this country.  In New South Wales, where R v EJ Smith[53] is the leading case, a person can only testify that the voice was that of the accused if the witness was previously familiar with the accused's voice or the voice had some distinctive character.  In Smith, O'Brien CJ of the Criminal Division said[54]:

"[E]vidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime, or that the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the same very distinctive features as had the voice at the crime".

His Honour admitted the evidence of a witness who claimed that, at the accused's committal proceedings, she recognised the accused's voice as the voice of one of the men who had killed her father.  Chief Judge O'Brien held that the evidence was admissible because the jury had heard the accused conduct his own defence and could find that his voice had "highly distinctive features" which could "leave an indelible mental impression" on the witness[55].  Smith was convicted.  The Court of Criminal Appeal approved O'Brien CJ's statement of the law concerning the admissibility of voice identification evidence but allowed the appeal[56] on the ground of a misdirection concerning the evidence in that case.

Since Smith, courts in New South Wales have held that evidence of voice identification is admissible only when the witness is very familiar with the voice or the voice of the accused is very distinctive[57].  Courts in other jurisdictions, however, have held that familiarity and distinctiveness go to weight, not
admissibility[58].  In R v Harris (No 3)[59], Ormiston J suggested that voice identification should be carried out with appropriate modifications in the same way that visual identifications are carried out.  In Miladinovic[60], Miles CJ disagreed.

It is arguable that Smith was wrongly decided in so far as it holds that evidence of voice identification is only admissible when the witness is very familiar with the accused's voice or when the voice of the accused is very distinctive.  Visual identification evidence does not have to meet a similar threshold standard[61].  Nor is the difference between voice and visual identification so different in principle that they require separate conditions of admissibility.

Identification evidence is often unreliable evidence because human perception and recollection are prone to error.  But neither the distinctiveness of the accused's voice nor the familiarity of a witness with that voice ensures that the identification of that voice with a criminal occurrence is reliable.  Distinctiveness and familiarity are merely factors that may increase the probability that a particular identification is correct.  Identification by a witness with a good memory for sounds may be just as reliable as identification by a witness who is familiar with the accused's voice or who claims to remember that the voice at the scene of the crime had the same distinctive features as the accused's voice.

The capacities of individuals to remember sights and sounds vary enormously.  Some persons may remember sounds that others do not, just as some persons may recollect physical features when others who were present cannot recollect them.  Moreover, individuals who witness or are involved in criminal incidents react differently.  Some remain relatively calm; others are shocked or confused.  Accurately relating the voice of the accused to the voice heard at the scene of a crime is just as likely to depend on the reaction or the capacity for recollection of the hearer of the latter voice as it is to depend on the familiarity with, or the distinctiveness of, the accused's voice, particularly if any time elapses before the witness makes the identification.  To limit the admissibility of voice identification to cases where the trial judge thinks that the accused's voice is distinctive or the witness is familiar with the accused's voice may result in the rejection of evidence that may be more reliable than evidence that meets those conditions.  Familiarity and distinctiveness appear to be matters of weight rather than conditions of admissibility.  However, the correctness of Smith and the cases that follow it should await a case where a decision on the point is essential.  It is not necessary to decide its correctness in this case.

The principles concerning the admissibility of voice identification evidence are not relevant here.  No issue of admissibility of evidence is involved.  Even if distinctiveness or familiarity are the tests for admitting voice identification evidence, they have no part to play in this case.  The question here is not whether the recording of the statement was correctly admitted into evidence; it is whether a recording of material that was before the Court was put to a proper use.

Playing a record of the accused's statement or evidence

The unsworn statement of an accused person is part of the trial.  The jury may take it into account[62] although it is neither evidence[63] nor testimony[64].  The jury may take it into account in favour of, as well as against, the Crown.  If the accused has made a statement against his or her interest, therefore, the Crown can ask the jury to use it against the accused.  If the accused's manner of speaking is relevant to an issue, the Crown can ask the jury to use their recollection of the accused's voice to support the Crown's case on that issue, just as the Crown can rely on the height or appearance of the accused to help prove its case.  Moreover, the trial judge has a discretion, and often an obligation, to answer jurors' requests for assistance by reminding them of the contents of an unsworn statement by the accused.  The judge may do so by reference to his or her notes or recollection, by reference to the transcript, or by playing a tape or video recording of the statement depending on what is available and convenient[65].  If the jury ask for a tape of the accused's evidence or unsworn statement to be replayed so as to refresh their recollection of the content or manner of what the accused said, the judge could properly authorise it without requiring the Crown to re-open its case.

But the line is drawn when the jury wish to use the record of the evidence or unsworn statement as a basis of comparison with other evidence.  In such a case, the jury will not be refreshing its recollection of what it heard.  It will be using the recording as "real evidence" of the sound of the accused's voice when it is recorded.  The judge can only permit that to happen when the "real evidence" has been admitted into evidence.  The recording then becomes evidence upon which the Crown can rely.  It will be in the same position as a tape of the accused's voice that had been admitted into evidence as the basis for expert evidence that a disputed statement on another tape was made by the accused.

It is fundamental to the common law system of criminal justice that a person can only be convicted on admissible evidence given in open court.  If a tape of the accused's evidence or unsworn statement is to be relied on as a basis of comparison with other admissible evidence, the imperative of a fair trial requires that the accused be given an opportunity to deal with it.  That can only be done if the Crown is allowed to re-open its case and the accused is given the opportunity to call evidence in rebuttal and to address the jury on the significance of this additional evidence.  Whether the Crown should be permitted to re-open its case depends upon the application of the principles in Shaw v The Queen[66].  But the circumstances are likely to be rare where the proper exercise of the judge's discretion would permit such an exercise of discretion.  To re-open the case at that stage would ordinarily distort the orderly process of the trial.

Admittedly, a jury may ask for the recording of an accused person's evidence or statement to be played so that they can refresh their recollection and then deliberately or unwittingly use the recorded sound as the basis of comparison with a disputed recording.  But if the judge thinks that might happen, he or she ought to refuse to have the tape played unless and until it becomes part of the evidence.  Indeed, the judge should do so in any case where there is a real chance that the jury may use an untendered recording as evidence and not as an instrument to assist recollection.

The learned trial judge in the present case had the correct principles firmly in mind in giving his directions to the jury.  He obviously had in mind the distinction between using the recording as an instrument of recollection and using it as an instrument of proof.  But with great respect to his Honour, the risk of an unfair trial according to law was so high that he should have refused the jury's request to have the recording of the unsworn statement played unless he first permitted the Crown to re-open its case and gave the accused an opportunity to deal with the new evidence.

Strong though the Crown case was, and weak though the accused's case appears to have been, there must be a new trial.  There has been a fundamental failure of procedure.  There is a real risk that the accused has been convicted on "evidence" that was not tendered at his trial.  In technical terms, a miscarriage of justice has occurred.

Order

The appeal should be allowed and the conviction quashed.  There should be a new trial of the indictment.

[1](1983) 152 CLR 281 at 292; see also Pennsylvania v Muniz (1990) 496 US 582 at 607; Burnett v Collins (1993) 982 F 2d 922 at 925-927; R v Deenik (1992) Criminal Law Review 578.

[2](1990) 50 A Crim R 434 at 453-454.

[3]See the discussion by Ormiston J in R v Harris (No 3) [1990] VR 310 at 318.

[4]R v E J Smith [1984] 1 NSWLR 462 at 477, 482 followed in R v E J Smith (1986) 7 NSWLR 444; R v Brownlowe (1986) 7 NSWLR 461 at 463-464; R v Brotherton (1992) 29 NSWLR 95 at 105-106.

[5]Corke (1989) 41 A Crim R 292.

[6]R v Hentschel [1988] VR 362 at 364, 369; Jones & Harris (1989) 41 A Crim R 1 at 6, 7; R v Harris (No 3) [1990] VR 310 at 316; Omar (1991) 58 A Crim R 139 at 146-147; Miladinovic (1992) 60 A Crim R 206 at 210-211; Greaves v Aikman (1994) 74 A Crim R 370 at 378-379.

[7]Jones & Harris (1989) 41 A Crim R 1 at 7; R v Harris (No 3) [1990] VR 310 at 318; Greaves v Aikman (1994) 74 A Crim R 370 at 378-379.

[8]R v Rawlings (Practice Note) [1995] 1 WLR 178.

[9]See R v Rawlings (Practice Note) [1995] 1 WLR 178 at 183.

[10]The rule at common law may not be so strict:  see Dryburgh v The Queen (1961) 105 CLR 532 at 535.

[11]Jury Act 1977 (NSW), s 55C; and see United States v Sims (1983) 719 F 2d 375 at 379.

[12]See R v Rawlings (Practice Note) [1995] 1 WLR 178 at 183; Bradley v State of Oklahoma (1977) 561 P (2d) 548 at 553-554.

[13]R v Dionne (1987) 38 CCC (3d) 171 at 184-185.

[14]An accused's right to make an unsworn statement has since been abolished by s 404A of the Crimes Act 1900 (NSW): see Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW) which commenced on 10 June 1994.

[15]See generally May, Criminal Evidence, 3rd ed (1995), Ch 2, Pt VI, "Tape Recordings" at 18‑25.

[16]We shall refer hereafter to the tape as Ex D although Ex H (excluding conversations not in the presence of the appellant) was also used during the trial.

[17]Unreported, Supreme Court of New South Wales, 28 July 1992.

[18][1984] 1 NSWLR 462.

[19][1984] 1 NSWLR 462.

[20][1984] 1 NSWLR 462 at 477.

[21][1984] 1 NSWLR 462 at 482.

[22]R v Smith (1986) 7 NSWLR 444.

[23](1986) 7 NSWLR 444 at 457.

[24](1986) 7 NSWLR 461.

[25](1989) 41 A Crim R 292.

[26](1992) 29 NSWLR 95.

[27]Greaves v Aikman (1994) 74 A Crim R 370 at 378‑379.

[28]R v Hentschel [1988] VR 362 at 364, 369; Jones & Harris (1989) 41 A Crim R 1 at 7; R v Harris(No 3) [1990] VR 310 at 317. See also Miladinovic v The Queen (1993) 47 FCR 190; 124 ALR 698 where Gallop J discusses the conflicting authorities but finds that on the facts there was prior familiarity.

[29]See generally Cross on Evidence, Aust ed, vol 1, par 1445.

[30][1990] VR 310 at 318‑323.

[31](1990) 50 A Crim R 434.

[32](1990) 50 A Crim R 434 at 454.

[33]Unreported, Supreme Court of New South Wales, 28 July 1992.

[34](1992) 173 CLR 555.

[35](1992) 173 CLR 555 at 561‑562.

[36]Kelleher v The Queen (1974) 131 CLR 534 at 551; R v Turnbull [1977] QB 224 at 228; R v Burchielli [1981] VR 611 at 616‑619; R v Bartels (1986) 44 SASR 260 at 270‑271.

[37]R v De‑Cressac (1985) 1 NSWLR 381 at 384; R v Finn (1988) 34 A Crim R 425 at 435‑436.

[38]R v Dickson [1983] 1 VR 227 at 230; Reid (Junior) v The Queen [1990] 1 AC 363 at 380.

[39]R v Aziz [1982] 2 NSWLR 322 at 328; R v Allen (1984) 16 A Crim R 441 at 444‑445.

[40]Smith v The Queen (1990) 64 ALJR 588 at 588.

[41]Kelleher v The Queen (1974) 131 CLR 534 at 551.

[42]Kelleher v The Queen (1974) 131 CLR 534 at 551.

[43]Davies and Cody v The King (1937) 57 CLR 170 at 182‑183.

[44]Cross on Evidence, Aust ed, vol 1, par 39105, citing R v Tilley [1961] 1 WLR 1309. In R v O'Sullivan [1969] 1 WLR 497 the Court of Appeal agreed with R v Tilley but recognised that, in practical terms, it may not be possible to prevent the jury from making a handwriting comparison.  See also Smith (1968) 52 Cr App R 648.

[45](1889) 10 NSWR 197 at 206; followed in R v Kelly (1946) 46 SR (NSW) 344 at 348, 357.

[46](1987) 163 CLR 558.

[47](1987) 163 CLR 558 at 560.

[48](1911) 13 CLR 619 at 645‑646.

[49]Riaz and Burke (1991) 94 Cr App R 339. In R v Rawlings [1995] 1 WLR 178 there was a question as to whether the jury, after retirement, should have been permitted to have access to a video recording of the complainant's evidence‑in‑chief. The evidence of the complainant, a child, had been given by means of a video recording pursuant to s 32A of the Criminal Justice Act 1988 (UK).  The Court of Appeal held that it was a matter for the discretion of the trial judge though if it was to be replayed it should be done in court with the judge.  The judgment is instructive but the video recording was of evidence that had been given.  There was no issue as to the admissibility of the video recording itself.

[50]See Pennsylvania v Muniz (1990) 496 US 582 at 590‑592.

[51](1992) 173 CLR 555 at 565‑566.

[52]Smith, Ashford & Schevella (1990) 50 A Crim R 434 at 453-454; R v Harris(No 3) [1990] VR 310 especially at 318.

[53][1984] 1 NSWLR 462 at 477.

[54][1984] 1 NSWLR 462 at 477.

[55][1984] 1 NSWLR 462 at 482.

[56]R v Smith (1986) 7 NSWLR 444.

[57]R v Brownlowe (1986) 7 NSWLR 461 at 466; Corke (1989) 41 A Crim R 292 at 296; R v Brotherton (1992) 29 NSWLR 95.

[58]See, for example, in Victoria: R v Hentschel [1988] VR 362 at 364, 369; Jones & Harris (1989) 41 A Crim R 1 at 7; R v Harris (No 3) [1990] VR 310 at 316-317; in ACT:  Omar (1991) 58 A Crim R 139 at 146-147; Miladinovic (1992) 60 A Crim R 206 at 210; in the United States:  US v Rizzo (1974) 492 F 2d 443 at 448; US v  Cerone (1987) 830 F 2d 938 at 949.

[59][1990] VR 310.

[60](1992) 60 A Crim R 206.

[61]See the criticism by Carracher, "Voice Identification Evidence", (1993) 10 Australian Bar Review 75 at 85:

"Smith, in so far as it lays down a legal threshold for the admissibility of voice identification evidence, is not consistent with the recognised principles, nor rationales, for the developed laws regulating identification evidence generally ... Smith unfortunately retains its precedent value in New South Wales".

[62]Peacock v The King (1911) 13 CLR 619 at 645-646; Edwards v Director of Public Prosecutions (Cth) (1987) 163 CLR 558 at 560.

[63]R v Morrison (1889) 10 LR (NSW) 197 at 206; R v Kelly (1946) 46 SR (NSW) 344 at 348, 357.

[64]Edwards v Director of Public Prosecutions (Cth) (1987) 163 CLR 558.

[65]See R v Rawlings (Practice Note) [1995] 1 WLR 178; Riaz and Burke (1991) 94 Cr App R 339.

[66](1952) 85 CLR 365.