Bulejcik v The Queen

[1995] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S74 of 1995

B e t w e e n -

ANTON BULEJCIK

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 OCTOBER 1995, AT 10.35 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear with my learned friend, MR G.D. WENDLER, for the appellant.  (instructed by Brock Partners)

MR R.N. HOWIE, QC:   If it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent Crown.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Papayanni, the points that are sought to be canvassed seem to exceed those which were dealt with on the special leave application.

MR PAPAYANNI:   Yes.  There was a general grant of special leave and I was not sure at the time whether the grant was given in relation to all the points that were in the appeal notice or not.

BRENNAN CJ:   I think you take it it was intended that it should be limited to the subject-matter that was raised on the application for special leave, and that is, the question of the voice ‑ ‑ ‑

MR PAPAYANNI:   One of the other matters does go to one of the procedural irregularity, that is all, your Honour.  Perhaps I could deal with that briefly?

BRENNAN CJ:   Unless you can justify some grant of special leave on a point other than the voice point, then I think you will be finding some difficulty.

MR PAPAYANNI:   Yes, if the Court please.  This is an appeal against the conviction of the appellant before the District Court on 13 October 1993 on a charge of supplying heroin on 4 July 1990.  The facts are not important really to the case itself on which leave was granted, but perhaps it might just be said briefly that it was alleged that there was a drug deal that took place in or around the McDonald car park at Blacktown with an under-cover police officer and the appellant.

The important part about it and the important part of the evidence was the tape of the undercover police officer and alleged to be of the appellant and that tape included conversations alleged to be at the appellant’s home and also at the McDonald’s car park at about 7 pm that night.  The defence in relation to it was that it was in fact a set‑up by the police, the police having known beforehand before the place was set, that they were to come there to this particular place.

The tape that was admitted into evidence was exhibit D which took out certain parts and the original of that tape was exhibit H.              Exhibit H included a number of directions from the police to the control officer on the tape when the appellant was not present and those parts were excluded.  The situation in relation to the fact was that the tape itself cut out - and no explanation was given for that - at the time just before when it was alleged that the police arrested the appellant with the drugs in his possession near a police car.

The first point that is relied upon is the procedural irregularity here and that was in effect that - and I will refer to the parts in a moment - but just generally, the situation was that during his Honour’s summing up his Honour referred to the fact that the jury themselves could, from the memory of the voice of the accused when he made his unsworn statement, which lasted about 40 minutes, could compare that with the voice on the tape - that was exhibit D or H - and decide themselves as to whether it was in fact the appellant.

What happened after that was that apparently at the time or shortly before that the jury had asked for the tape, exhibit D or H, plus the recording of the appellant’s statement to be played.  His Honour did not communicate that fact at any time before his summing up and we are not sure as to when that was made and what terms it was in and that will be shown when I read through the summing up.  After that, objection was taken to the fact that the voice of the accused in his statement could be compared with the tape and also the situation then in relation to the fact - the Crown referred to the fact that the jury could compare the voice on the tape of the unsworn statement with the voice on the tape, exhibit D or H.

His Honour was told that that could not be done.  His Honour then allowed that tape, that is the tape of the unsworn statement, plus the original tape, excluding the parts that were inadmissible, to be played to the jury obviously for the purposes of comparison.  I will just go through the parts in relation to that which are set out in the written submissions.

TOOHEY J:   At what stage of the proceedings were the tapes played to the jury?  That is, the two tapes?

MR PAPAYANNI:   The first tape, exhibit B, was played during the trial.

TOOHEY J:   I appreciate that was played initially as part of the Crown evidence, but you are speaking about a replay of exhibit D and the playing of the tape of the appellant’s unsworn statement.  When did that take place?

MR PAPAYANNI:   That happened after the summing up and after objection had been taken to it.

TOOHEY J:   And before the jury had retired?

MR PAPAYANNI:   And before they had retired.  Now, the situation in relation to this was that, because of the special headphones, the tapes had to be played in court.  But after his Honour had finished his summing up - they did not play the exhibit D, they played exhibit H which was the original tape, which was also in evidence.  Usually in those cases, it is marked for identification in any case, but in this case it was an exhibit that was not to go into the jury room, and exhibit D ‑ ‑ ‑

TOOHEY J:   I am sorry:  just so I can follow, are you saying that exhibit H had not been played at all up to that point?

MR PAPAYANNI:   That is right, yes.  The situation, usually, in relation to a tape where anything is excluded is the original tape is marked for identification and the copy tape with the parts excluded is then introduced into evidence and played to the jury.

TOOHEY J:   But does the appeal in any way turn on the fact that it was exhibit H that was played rather than exhibit D?

MR PAPAYANNI:   No, your Honour, no.  But I am just explaining the situation as to what happened because of exhibit D and exhibit H, that is all, your Honour.  So that was played after the summing up and then the jury retired.

Now the parts that are relevant, I will just run through those briefly in relation to the appeal book.  At page 337 volume 2, the bottom of that page, line 54:

the accused’s case is that the tape you may think is a fake and that you do not have any real identification of the voices on the tape.

And then his Honour referred to the fact that what the accused said in his statement and that he could not recognise his voice and he did not remember saying anything on tape, and then his Honour referred to the fact of it being a tape on line 23 and dealt with that there, and then at page 339, line 11:

As to the question of identification of the voices on the tape, Sergeant Wilding said there were three voices on the tape.  There was his.

It says, and so on.  It referred to his evidence, and then at line 31, he said:

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.

And then he refers to Louise Bratcher and what she said, and then on line ‑ ‑ ‑

TOOHEY J:   Could I just stop you.  Do you take objection to that statement as far as it goes, “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”?

MR PAPAYANNI:   Yes, we take objection to that.  I will come to that in a moment.  There is only one case in relation to that, but as I referred to ‑ ‑ ‑

TOOHEY J:   I was not asking you to go into authority at this stage, but just so I can understand the argument.

MR PAPAYANNI:   The next part, of course - that was one of the grounds of appeal but that was not a special leave point.  On page 340, at line 15:

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 -

and so on, and then he goes on to Miss Bratcher, and then at line 31, he said:

Members of the jury, as the learned Crown Prosecutor put to you yesterday, the tape you might think is the most important piece of the evidentiary material.

And then at line 50:

You have asked to have it played in court so you can use the head phones -

Well now, that was the first intimation that the jury had made any request.  We are not sure exactly what was asked at that time because we did not see the written note from the jury.

TOOHEY J:   There would be nothing wrong in that in itself, would it, the jury asking for the tape to be replayed?

MR PAPAYANNI:   No, but I am just saying we are not sure whether they asked at that time to have both tapes played, or only the one.  That there, apparently, is referring to exhibit D, that the jury later on asked for both tapes to be played to them.  Then, at the bottom of that page he says also, and this makes it more clear:

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.

So they apparently had asked for both, in relation to the exhibit D and also the accused’s statement.  His Honour repeats about being a fake and so on about three times, and then, at 361 the Crown Prosecutor said at line 10 ‑ before that there was a question about a house brick and so on ‑ the Crown Prosecutor said:

I was just going to ask your Honour to remind the jury that, whilst the original tape exhibit H will not go with them to the jury room, they can listen to that tape in court if they wish to and, well 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 ‑

Now, that was the first suggestion that the jury were going to compare the voices on exhibit D with the voice on the unsworn statement and it refers to the equipment to record those two tapes as different, and so on.  Then, on line 35:

I oppose that your Honour, I oppose the other matters too. 

That was the objection that was taken to that. 

BRENNAN CJ:   What was being opposed at that stage, Mr Papayanni?

MR PAPAYANNI:   I was opposing both the fact of the tape being played and the question of the voice matters are referred to later, your Honour, here, we will see on page 364.

TOOHEY J:   You were objecting to which tape being played?

MR PAPAYANNI:   I was objecting to the jury comparing the voices ‑ ‑ ‑

TOOHEY J:   No, that is the next step.  You said you objected to the tape being played.

MR PAPAYANNI:   I objected at that stage to the jury hearing the tape of the unsworn statement for the purposes of comparison.  And then, on page 364, at about line 54:

but it is the Crown case, not my case, that it is his voice on the tape and there is no onus on me, the Crown did not ask ‑

that is in relation to Miss Bratcher.  And then on page 365 line 7, I refer to Miss Bratcher ‑ what his Honour said about that:

And then your Honour said in relation to, the voice, that the jury can use their own, what they hear on, the accused in his address from the dock that they can use that in relation to deciding whether they are the voices on the tape.

And then I referred to the case that is reported as Modrick, but it is Morgillo, and I referred to his case and what Mr Justice O’Brien had said, and then, on line 25 I said:

Then again they have to deal with it on the evidence.

And then I referred to the fact that:

two jurors decide, that it his voice; other jurors say no it may not be his voice, what is the situation then, the jury can’t give evidence in the jury room as to what his voice is, they can’t agree and they can’t say whether it is his voice or not, because they have to go on the evidence and not on their indication, not a handwriting case or anything in that case, it’s a different situation totally because, in handwriting the law is quite clear, that a person can identify another person’s handwriting you do not have to be an expert for it but the qualities required in voice identification, are one, distinctive quality or two, knowledge over a period of time.   In my submission your Honour should withdraw that from the jury.  They’re not entitled to do it and I told them that.

And then on page 367, line 26, his Honour said:

Mr Crown this question that Mr Papayanni has asked that I withdraw from the jury, my comment that they can compare the voice on the tape with the accused voice when he gave a statement in court yesterday, what do you say about that?

The Crown then maintained that they could, and his Honour then said at line 49:

I do not propose to withdraw that comment.

TOOHEY J:   Could I just ask you this?  Does your argument go not only to the playing of the tape of the unsworn statement for the purpose of comparison, but to the jury’s recollection of the voice of the appellant when making his unsworn statement for the purpose of comparing that with the voice on the tape?

MR PAPAYANNI:   Yes.  There are three matters here, your Honour.  The first matter is that the procedural irregularity in relation to the timing of when this was brought in; the fact that the usual situation when one is endeavouring to identify handwriting or anything else compare one with the one, you may have in the case of handwriting, you have the disputed handwriting, which is the one that has to be proved to be the accused, and you have the genuine handwriting.  Now, the genuine handwriting is somebody says, “This is the handwriting of the accused”, and that is then tendered in evidence.

So you have the genuine handwriting in evidence and you have the disputed handwriting in evidence.  Expert witnesses can assist the jury in relation to the handwriting, whether it is the handwriting or not.  In this case, you have got exhibit D, which is in evidence, and you have got the unsworn statement - the recording of the unsworn statement which is not in evidence.

TOOHEY J:   You have got two things.  You have got the unsworn statement and you have got the tape of the unsworn statement.

MR PAPAYANNI:   Yes, but the first point is the procedural irregularity.  The second point is the comparison of the voice with the tape, exhibit D, and the third point is the comparison by the jury, without assistance, in relation to the recording of the unsworn statement with exhibit D, the disputed tape.  So you have got the three situations in relation to that.  The first one that I am dealing with is the procedural irregularity in relation to this matter - I intend to deal with.

TOOHEY J:   What do you mean by procedural irregularity?

MR PAPAYANNI:   It is in my argument, your Honour, but the situation is under section 402 of the Crimes Act, and I will refer to that in a moment, that all the evidence must be given, shall be given, it says, before the address for the defence.  That is section 402.  It was cited in the written submissions but I have copies for your Honours.  Your Honours have the Act, I take it.  Section 402 says:

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 -

that is where the counsel for defence addresses -

all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence.

So you have a statutory provision there in relation to that and whilst there have been other authorities from other courts and English authorities to say that a judge has a discretion in relation to other evidence, we would say that under section 402 it is obligatory there that all that evidence be given before the address of counsel.  Now, in this particular case you have the situation where the jury are being asked to listen to their memory of the voice in the first place, compare that with exhibit D.  Counsel for the Crown and counsel for the accused had not addressed on that point at all.  They are being asked also to compare the voice on the unsworn statement which is not in evidence before the jury with exhibit D, the disputed tape and, of course, counsel for the Crown and counsel for the accused had not addressed on that point at all.  So the situation then in relation to that is similar to what was the case in King v The Queen.  That is one of the ‑ ‑ ‑

TOOHEY J:   Can we just move from the procedural irregularity for a moment because reading your written summary of argument your main proposition seems to be that neither the unsworn statement as given in court nor the tape recording of that statement was evidence.

MR PAPAYANNI:   That is right.

TOOHEY J:   So, therefore, there was no evidence which the jury could use as a basis for comparison.

MR PAPAYANNI:   That is correct.

TOOHEY J:   Is that the main argument that you have?  I mean, if that is your argument and if it was successful, the question of procedural irregularity does not really arise, does it, because if it was not evidence then it should not have been used?

MR PAPAYANNI:   The fact here is that the tape, as was pointed out in what was said, was the main evidentiary material and it was essential that the Crown proved the voice on that tape beyond reasonable doubt.  The situation then is that if there was a procedural irregularity and the tape was, in fact, evidence, assume that the jury could compare ‑ ‑ ‑

TOOHEY J:   You are running two things together; you are running the tape and the comparison.  There is no argument about the fact that the tape recording taken by the police was admissible in evidence.

MR PAPAYANNI:   That is correct.

TOOHEY J:   So, that is there and that is in evidence.  The next step is that the accused makes an unsworn statement.  The third step is, contemporaneously, there is a tape recording of that unsworn statement.

MR PAPAYANNI:   Yes.  The main objection is that it was not in evidence.  But, if your Honours held that it was in evidence ‑ ‑ ‑

BRENNAN CJ:   What was?

MR PAPAYANNI:   If the tape of the unsworn statement was in evidence and was able to be compared by ‑ ‑ ‑

TOOHEY J:   It is not just the tape; it is the statement that I thought you were objecting to.

MR PAPAYANNI:   The tape of the unsworn statement.

TOOHEY J:   No.  There are three things:  there is the tape recording taken by the police; there is the unsworn statement made in court by the accused, which the jury can hear; there is the tape recording of that unsworn statement.  I thought your objection was to the jury being permitted to compare their recollection of the accused’s voice when he made the unsworn statement with the tape and being permitted to compare what they heard by way of a tape recording of that unsworn statement and for the purpose of making comparisons with the tape.

MR PAPAYANNI:   Your Honour, they are not necessarily exclusive.  The situation could be ‑ ‑ ‑

TOOHEY J:   No, I am not suggesting they are.  I am just trying to understand what the argument is.

MR PAPAYANNI:   The situation could be that the court could say, yes, the jury could compare the voice when he made his unsworn statement with the voice on the tape exhibit D.  But, the second point then is, even if they could do that, that had not been referred to up at that time when his Honour made the summing up.  The second point then is, could they compare the recording which was not in evidence, with exhibit D.

TOOHEY J:   Yes, but is it not putting the cart before the horse a bit to take us to the procedural irregularity until we have heard argument as to whether the unsworn statement and the tape recording of the unsworn statement could properly be used by the jury for the purposes of comparison?

MR PAPAYANNI:   The point is I am dealing them all together, really, your Honour, because the situation here is that you have to look at it first in the situation that it is not admissible.  Then, it may be said that it is part of the evidence that the jury may hear.  An unsworn statement is part of a trial but it is not evidence, as I point out in Reg v Morrison, and there are two different situations.  It may be part of the trial and the jury may be able to compare the voice in the statement with what is in exhibit D.

TOOHEY J:   Do you accept that?

MR PAPAYANNI:   No, I do not, your Honour, because the authorities all tend to the situation that while you can look at a person in the dock and while you can compare a photograph with him, you cannot ask him for a demonstration; you cannot say, bare your chest to see if he has got a tattoo on his chest; you cannot say to an accused who is making a statement, walk along in front of this witness, because she wants to identify you; you cannot have any movement at all.  Now even the demeanour of the accused when he makes his statement is not able to be used.  Now, in this particular case ‑ ‑ ‑

BRENNAN CJ:   That seems to be flying in the face of common sense, Mr Papayanni.  If the jury hear the accused speaking, they know what the accused’s voice is like.  No direction of a judge can remove that knowledge from a jury.  That is not a case of compelling the accused to speak and thereby giving a demonstration.

MR PAPAYANNI:   But see - as your Honour knows because your Honour traced the history in Sorby’s Case in relation to this matter - the situation at one stage only applied to - a privilege of self-incrimination only applied to judicial proceedings.  It was then applied to committal proceedings which were not judicial proceedings.  Now in committal proceedings the magistrate says to the accused or defendant in those proceedings, before he commits him for trial, he says to him and he cautions him, “You are not obliged to say anything unless you wish, because anything that you do say can be used at your trial”.  So then the defendant can make, according to statute, a statement, unsworn, in the same way that he can make a statement in a trial.  He can make a statement, make a long statement, or usually he says, I am not guilty and I reserve my defence.  But he may make a long statement.

The situation then is this, that if he makes a statement like that, in judicial proceedings - and we will, when I go into privilege, we say that it applies to judicial proceedings - that the Crown or prosecution could then record the statement that he makes before the magistrate, even though he has been cautioned by it, and that recording could be used in the trial.  We say, that cannot be done.

Now, witnesses in O’Brien’s case came into court and listened to a number of voices in court, the accused was defending himself on another matter, and that was recorded.  He was unaware of that.  Now when that happened they used that tape in O’Brien’s case to show in relation to a voice identification in New South Wales there has to be a distinctive quality or there has to be familiarity.  In O’Brien’s case ‑ ‑ ‑

McHUGH J:Are you talking about Smith.

MR PAPAYANNI:   I am sorry.  Mr Justice O’Brien.  In Smith’s Case the witness, Mrs Brennan, said that it was distinctive quality.  Now the jury heard Smith, in his own defence, he was unrepresented, in court, over a number of weeks, and they could ascertain for themselves that he had a distinctive quality in his voice, themselves, from what was said in court.

That was a different matter to saying that they had obtained familiarity with his voice.  The situation in relation to a matter of that kind is that the tape from the committal proceedings in which the accused defended himself was used to show that he had a distinctive quality.  When it went before the Court of Criminal Appeal, the court there said that, hearing the tape, it did not have the elements of peculiarity or distinctive quality that Mr Justice O’Brien said, and gave a new trial.

TOOHEY J:   But that is another question, is it not?  It does not seem to touch the principle that we are concerned with here.  Let us take the example that you just gave us of the accused who is unrepresented and, over the course of several days when the trial is being conducted, he cross‑examines witnesses and the jury hears his voice over that period of time and there is a question as to whether or not a voice on the tape was his voice or not.  Is the jury permitted to make that comparison for itself?

MR PAPAYANNI:   If they have sufficient familiarity with his voice, I say yes.  A person who knows somebody for many years, you could bring him into ‑ ‑ ‑

TOOHEY J:   Yes, I understand all that.  I am trying to identify what the principle is.  You see, I thought you said a while ago that the unsworn statement could not be used because it was not evidence.

MR PAPAYANNI:   That is right.

TOOHEY J:   But, on the other hand, you say that things said by an unrepresented accused during the course of the trial - questions asked, statements made to the judge conducting the trial and so on - if there is enough of it, it can be used by the jury for voice comparison.

MR PAPAYANNI:   That is the point, your Honour.  Your Honour has perhaps misunderstood me.  We say in this case - when an accused makes an unsworn statement, if he went for two days and if the jury had sufficient knowledge of his voice during that time to say, “We are sufficiently familiar with his voice in different situations”, then I say yes, they could use his voice.

TOOHEY J:   That is a different proposition to the one that I read in your written synopsis which seems to be that the jury cannot use anything which is not evidence, whatever that term may mean.

MR PAPAYANNI:   But that is only in relation to the comparison, your Honour, of the tapes with the other tape.  We say in this case that 40 minutes was not sufficient to gain familiarity.

TOOHEY J:   That is what the appeal is about, is it, whether ‑ ‑ ‑

MR PAPAYANNI:   That is in the first place.  In the second place, we say that they could not compare the tape because the tape was not in evidence.  Then we say that the situation in this case gave rise to a miscarriage of justice because counsel for the accused did not have any opportunity to address on it.  Any evidence in relation to that - if it had been sought to bring it in reply or sought to bring the evidence after the summing up, we say in that case it would have been too late.

TOOHEY J:   So, if the judge had said to the jury “I’m not going to let you hear the tape of the unsworn statement, but you bear in mind the accused’s voice as you heard it in the course of making his unsworn statement.  You can use that if you think that it’s sufficiently distinctive to make a comparison with the tape”, you would have no complaint?

MR PAPAYANNI:   I would think that the matter of whether they are familiar with the - it is the same as the case of admissibility.  If you are on a voir dire on whether a person is sufficiently familiar with a person’s voice, then you would have it excluded if the judge came to the conclusion that it was not.

TOOHEY J:   Yes, but in principle you have no objection to that being done.

MR PAPAYANNI:   In principle.  If a person is familiar - if somebody knows Bill Smith and he is being tried and they have known him for 20 years, they can come in and say ‑ ‑ ‑

TOOHEY J:   I am not asking you that, Mr Papayanni.  I am asking you whether in principle there is any objection to the jury using the voice of the accused in making an unsworn statement for the purpose of comparison with a voice on a tape.

MR PAPAYANNI:   In principle?

TOOHEY J:   Yes, in principle.

MR PAPAYANNI:   In principle we say yes unless the terms as to voice identification are complied with.  You see there has to be a distinctive quality and in all the cases ‑ ‑ ‑

BRENNAN CJ:   What your point is, is that 40 minutes is not long enough, is that right?  That is your first point.

MR PAPAYANNI:   That is correct and there was no distinctive quality.  That was accepted.  Now, all the cases - in Smith’s Case and Browning’s Case and all these cases there has always been a distinctive quality in relation to the voice.  There is a difference here and it becomes confusing in relation to whether a victim can give certain evidence.  A victim hears a voice at the scene and it may go on for two seconds, it may go on for two hours.  When a victim hears a voice the court says - you run voir dire - two hours conversation with an accused person is sufficient for her, that is the victim, to give evidence as to whether that voice was the accused voice.

BRENNAN CJ:   Mr Papayanni, if that is the case, where there is a question of the admissibility of the witness’ evidence and the court has to be satisfied that the witness has the capacity to give the evidence which is sought to be led and for that reason requires the witness to be qualified either by experience or by reason of the peculiar nature of the accused’s voice.

MR PAPAYANNI:   And cross‑examined.

BRENNAN CJ:   In this case there is a tape which is the only piece of evidence and there is a jury listening to the accused making a statement.  The jury are not witnesses.  There is no question of qualifying them as competent to give evidence.  Some of the material in the trial is the accused’s voice statement and that is a different case altogether.

MR PAPAYANNI:   The only difficulty about that is that it should not arise in the summing up.  That is the situation in relation to procedural irregularity.

BRENNAN CJ:   That is not a question.  That arose before the summing up.  The jury heard the voice before the summing up and then the question was could the judge tell them that they were entitled to use the voice that they had heard before the summing up in determining whether or not the tape which was in evidence, exhibit D, carried the voice of the accused.

MR PAPAYANNI:   We say that even if you could ‑ ‑ ‑

BRENNAN CJ:   You say they cannot because 40 minutes is not long enough to allow them.

MR PAPAYANNI:   Not only that, that the jury would then have to be told as to the difficulties in relation to voice identification and in relation to a tape, one with the other, and none of this was done and it all arose during the summing up.  The accused had no opportunity to address on it and even if that could be done, the jury when they were listening to the statement were not concentrating on his voice with a view to identification.

TOOHEY J:   Put that way, it is not a question of admissibility which you are asking the Court to decide, it seems to be a question of whether adequate directions were given by the trial judge to the jury, putting aside your procedural irregularity point.  Is that not fair?

MR PAPAYANNI:   No, that is not quite correct, your Honour, because we say the vital part here was the playing of the tapes for the purpose of the comparison, which could not be done.

BRENNAN CJ:   Let us see if we can understand this.  Your first point is that the jury ought not to have used their memory of his voice when he made the statement from the dock in order to determine whether it was his voice on exhibit D?  Now, that is one point, quite distinct from anything else.

MR PAPAYANNI:   That is right.

BRENNAN CJ:   The second point is that if they were going to be allowed to use that information that they had acquired in the course of the trial, the trial judge should have given them a direction warning them of the danger of doing so.  Is that right?

MR PAPAYANNI:   Yes.

BRENNAN CJ:   Then finally, you say that whatever might be the situation about that, to allow them to hear the tape of the statement from the dock and to allow them to use that tape as the basis of comparison, offends two principles:  one, that it was not in evidence and, second, even if it could have been in evidence, it was tendered after the summing up was complete.

MR PAPAYANNI:   And they were not competent to compare, in any case.

BRENNAN CJ:   Not competent to compare ‑ ‑ ‑

MR PAPAYANNI:   Without the assistance of an expert.

BRENNAN CJ:   All right, well we have objections then that they were not competent to compare the two tapes, the second tape was not in evidence and even if could have been in evidence, it certainly was not tendered at the right time.  Is that right?

MR PAPAYANNI:   The extra point is that we say it could not have been admissible in any case.

BRENNAN CJ:   Right, I can understand that.

MR PAPAYANNI:   Because of the fact of section 402 and also because of the question of privilege.  So, they are all really bound up together.  The part in relation to the voice, perhaps, is not so important but it is when the jury set out to compare the two tapes because obviously, they do not have a sufficient memory of his voice because they were not concentrating so much on his voice at the time, they were concentrating on what he said.  And it was when they asked for the tape itself, then they were concentrating on comparing the voice of one with the voice of the other.  And, of course, it was a case of a Yugoslav who spoke in broken English and it is a similar sort of a situation.  If you hear 10 Scots people speaking with Scottish accents, well then, you have difficulty in determining which one is which, whether you are right or wrong about any identification.  If there is only one person in the room and you hear a person with a Scots accent, well then, you say it must have been so-and-so because he is one with the Scottish accent.  So, it all comes around to a situation in relation to voice identification which is so totally different to visual identification.

The situation in relation to visual identification is more clear.  You have a situation in relation to voice identification where a voice on a tape is different to the voice that a person speaks with, or when you hear a person.  Your own voice is a good indication.  Unless you know you are a making a recording, you have difficulty in recognising your own voice.  Now, the situation in relation to voice identification is totally different.  If you have a situation where you have an expert who can say to you, “Here’s a spectrogram” and demonstrate to you, you can see something that the expert says in relation to that and he can point out to you the similarities, the same as in a fingerprint situation, where you have a fingerprint and an expert will point out to you where the similarities are and then the jury can make up their own mind.  Of course, they can reject the whole evidence if they want to, but the total situation in relation to voice identification is totally different.

The authorities in relation to the unsworn statement are quite clear, and I will not refer to those at any length, but before I go away from it, the question of procedural irregularity is similar to that of the King v The Queen. The reference is given to that incorrectly. It is 161 CLR at 423. That was a case that was before this Court and it was simply a case of where, during the summing up, the trial judge - the case had been run on the basis that the accused, King, was an accessory to a person named Matthews.

During the summing up, the judge said - Matthews was before the Court - “You will have to acquit Matthews and you’ll have to acquit both or convict both”.  Now, Matthews was in fact acquitted.  The Crown objected to that and then the situation then became that a different case was then put to the jury that the accused could be an accessory to any person and it did not have to be Matthews.  In that case, the Court held that that was a procedural irregularity and had not been the case that had been run by the Crown.

The similar situation arises in relation to this matter - well, not exactly the same - whereas the case that was put to the jury by the judge in fact was not the case that the Crown had relied upon, and of which there was no evidence.  That is in relation to the tape itself, which was the vital piece of evidence - exhibit D was the vital piece of evidence - and asking the jury to compare the tape of the unsworn statement with exhibit D was in fact the procedural irregularity in relation to this matter.  The case in relation to the unsworn statement is a case of Morrison X NSWR 197.

BRENNAN CJ:   What does this show?

MR PAPAYANNI:   It shows that the unsworn statement is not evidence.

BRENNAN CJ:   What does that have to do with it?  It is part of the trial, is it not?

MR PAPAYANNI:   It is part of the trial but it is not evidence, and that relates to the fact that - if the situation was that the recording did not need to be tendered and could be played back as part of the trial, there is no doubt that the recording could be played back of some witness as to whether he said something or not.  But the question is whether it could be played back to the jury for the purpose of comparison.  So the statement is not evidence in itself, and that is the situation in relation to that.  It says that the only evidence is of course evidence that is given on oath in the witness‑box.  That is set out on page 206 of that report where it says:

The Court is of opinion that the statement which was made by the prisoner under the provisions of sec 470 was not evidence, as the word “evidence” is understood and has always been understood in English Courts of justice.  Evidence is a matter of fact, from which a jury is asked to draw an inference.  The principle which has, however, universally prevailed in English Courts of justice is that such evidence must be established by the oath of witnesses.

It deals with that situation and deals with the situation of course in relation to how the statement can be used.

That of course is followed in the case of Kelly 46 (NSW)SR 344.  It has also been dealt with by this Court in relation to the interpretation in Edwards and Collie v Director of Public Prosecutions 163 CLR 558, where it was held that statement was not testimony. It was followed in the English case of Couglan which has been reported, and I do not propose to refer to that.  It is the same situation in relation to that.

The only case which is relevant to the question as to whether the jury can use the voice in a statement to compare it with a tape in evidence is a case of Morgillo, which your Honours have copies I think, which is unreported and on 28 July 1992 in a case of Mr Justice Campbell in the Supreme Court.  Do your Honours have copies of that?

BRENNAN CJ:   Yes.

MR PAPAYANNI:   And in that case the question was whether they can compare the voice in an unsworn statement which lasted 36 minutes, the Crown conceded in that case that there was not such familiarity with the voice that they could in fact compare it.  His Honour looked at the cases of Smith and Brownlowe and his Honour came to the conclusion that the jury could not compare the voices.  On page 2 of that report about point 7:

The Crown did not submit that the period of thirty-six minutes during which the jury heard a statement can properly be said to be appropriate evidence upon which it would be open to conclude that the jury had sufficient familiarity with the accused’s voice for it to be proper to leave the question of comparison to them on the basis of a familiarity.

His Honour then referred to the case of Hentschel in Victoria, where a different situation in relation to the law applies, and on page 3 about point 5 his Honour said:

I have heard the accused’s statement and the tapes and the evidence of the identification witnesses.  Remembering that I must not trespass upon the field of the jury.....it nonetheless seems to me that the material available is not capable of supporting the finding which would be necessary for the direction suggested by the Crown to be acted upon by the jury.

The situation also is mentioned in relation to if a similar situation occurred, and of course statements have now been abolished in respect of accuseds charged before 10 June 1994, but there are still a number of cases awaiting trial, and the statement of course is still in operation in the Territory here and a similar provision exists in Tasmania in relation to statements there, as to a cut-off period of 1 May 1994, and in all the other States, of course, the statement has been abolished, but it is still important enough, in my submission, in relation to the question of the statement, as to whether what can be done in this particular case was in fact done.

McHUGH J:   The judge in this case took a very liberal view of what was entailed in a statement.  You conducted an examination in‑chief.  You must have asked the accused about nine times as to whether or not he wanted to say something about different things.  It was pretty close to an examination in‑chief, was it not?

MR PAPAYANNI:   Well, after all he was a new Australian Yugoslav.  It is always very difficult to get them to say anything.  It is quite legitimate really to - your Honour has had experience of accused people who ‑ ‑ ‑

McHUGH J:   Yes, to remind them of a subject matter, Mr Papayanni, but you went on, I do not know how many times, but you must have asked at least seven or eight matters.

MR PAPAYANNI:   Yes.

McHUGH J:   Every time the accused seemed to be finished you would ask - but anyway that is beside the point.

MR PAPAYANNI:   It is one of the matters one has to - one never really ever gets a full statement from an accused person and one has to rely on it of course.  The question arises also as to the situation in relation to whether a person who gives evidence or makes a statement, whether that could be brought in reply.  In any case this question probably has to be dealt with and in those situations we say that the question of privilege arises and that ‑ ‑ ‑

TOOHEY J:   Why does it arise only in that situation?

MR PAPAYANNI:   In relation to a recording?

TOOHEY J:   No, you spoke about being used in reply.

MR PAPAYANNI:   If the recording had been made and the Crown had then called the operator to tender the record of the accused’s voice in reply whether that would have been admissible or not.  The question then involves whether there is a privilege in relation to judicial proceedings and what can be done in judicial proceedings.

TOOHEY J:   It did not happen anyhow, did it?

MR PAPAYANNI:   No, it did not happen but the question is whether this Court wishes to go into that point or not, as to whether it can be done for future matters.  You see the situation in America is totally different.

TOOHEY J:   Just before you get to the United States, is that the only situation in which the question of privilege can arise on your argument?

MR PAPAYANNI:   The situation now, of course, is covered by section 407 and section 413 of the Crimes Act in relation to an accused gives evidence.  If an accused gives evidence at one stage there was doubt, when they brought that in in 1898 and before that - an accused could give evidence, there was doubt as to whether he could be cross‑examined about the crime itself, as to whether he did it or something relevant to that.  Now, in order to overcome that sections in the Crimes Act were brought in in relation to the fact that if the accused gave evidence then he could be cross‑examined about the crime itself and anything relevant to that crime, but he could not be cross‑examined about any other matter in relation because ‑ ‑ ‑

BRENNAN CJ:   Mr Papayanni, let us see if we can dispose of this question of privilege.  Whose privilege is it, the accused’s privilege, I take it?

MR PAPAYANNI:   That is correct, yes.

BRENNAN CJ:   Privilege against what?

MR PAPAYANNI:   Privilege against providing information or evidence in judicial proceedings for the Crown case.  There is no doubt about it that the privilege applies to judicial proceedings only; it does not apply if a person is asked by a police officer, or compelled by a police officer, to give a sample of his handwriting, it may be ruled out because of other reasons, but there is no privilege outside court.  But the authorities all show that if an order is made by a judge ‑ and these are American cases ‑ that an accused person provide a handwriting sample, that is not admissible because it is by reason of judicial process.

BRENNAN CJ:   Is this the line of argument:  that if the tape that was ultimately produced had been attempted to be proved in evidence, you could have objected to the attempt to prove it on the grounds that it was an attempt to get into evidence that which had been provided in the course of the trial?

MR PAPAYANNI:   Yes.  I could object to the admissibility.

BRENNAN CJ:   Is that what the argument is?

MR PAPAYANNI:   Yes.

TOOHEY J:   Why does it not apply equally to the use that might be made of the unsworn statement?

MR PAPAYANNI:   That is the point, your Honour, because ‑ ‑ ‑

TOOHEY J:   It is not the point.  The point is we got on to this because you were offering the hypothetical situation of a witness being called to prove a tape recording and the accused’s unsworn statement.

MR PAPAYANNI:   Yes.

TOOHEY J:   I am not talking about tape recordings; I am talking about the unsworn statement made in court and the use that the jury might make of that unsworn statement for the purpose of comparison of the voice on the tape.  Do you say any question of privilege arises there?

MR PAPAYANNI:   I would like to say that, your Honour, but it seems to be that it would be against commonsense, as his Honour said, that the situation is that, if a person speaks in court and is not under compulsion to do so, then you could probably use that - his voice - if you were sufficiently familiar with it in accordance with the authorities in this State.

TOOHEY J:   Then we are not concerned with privilege, are we?  It only arises, on your argument, if an attempt had been made to prove the tape
by a witness.

MR PAPAYANNI:   That is the question:  whether the Court wants to go into that or not ‑ ‑ ‑

BRENNAN CJ:   I think we understand what you are saying, Mr Papayanni, but the problem does not really arise, does it?

MR PAPAYANNI:   It does not arise here, but it is just that if the Court was endeavouring to - see, the situation is going to be that a witness now will give evidence and when he gives evidence the Crown can have a recording made of that and then they can tender that in reply.

BRENNAN CJ:   That would raise a number of points and, no doubt, if the problem arises, a trial judge will be able to rule on it, and if the ruling requires review on appeal, it can happen in an appropriate case.

MR PAPAYANNI:   Yes.  It is only just a matter in relation to the tape itself, the tendering of it, that that would not, in our submission, have been admissible by reason of that situation.  But as your Honour says, it does not arise in this case.  It is a question of whether it would arise in another case and it can be dealt with there, as your Honour said.  The difficulty, also, in relation to the question of comparison, whether the jury can in fact, at any time, compare the tape, I do not propose to go into this in any great detail.  My written submissions are set out in relation to this.

Your Honours, there was, surprisingly enough, recently a conference held at Armidale by phonetic experts in which doubt was given as to whether expert evidence by phonetic experts in this country was available.  In America, of course, they have people who are registered under the International Voice Identification, and go through a series of training, and they are accepted in the courts there, but I just handed this up in relation to the ‑ ‑ ‑

McHUGH J:   But there is judicial authority in New South Wales that that evidence can be given.  Gilmore decided that.

MR PAPAYANNI:   Yes, Gilmore’s Case, in which your Honour was in that case.  But it points out the difficulties.  We are not saying the evidence cannot be given.  It points out the difficulties in relation to a jury doing it themselves without assistance.  We say in relation to any comparison of a voice on a tape with a voice on another tape can only be done with the assistance of an expert.

The difficulties in relation to voice identification are set out in Mr Justice O’Brien’s judgment in Smith’s Case, and set out on page 6 of my written submissions in relation to the difficulties there, and I will not go through them all; there are 11.  They are cited from Mr Justice O’Brien’s judgment in Smith’s Case, and they point out the difficulties in relation to voice identification.  In relation to voice identification, especially comparison on tapes, a great difficulty is saying that it is the voice, and identifying the voice, rather than saying, it is similar to.

Brownlowe’s Case was a case where it was said it was similar to, and of course that was held not to be sufficient as was said in this case of Pitkin in relation to visual identification by this Court.  The question of voice identification and the direction in relation to it was given by Mr Justice Lee when he cited Kelleher’s Case which was case in this Court, and that is set out on page 8 of the written submissions.  Chief Justice Gibbs then said:

It is well recognised that grave miscarriages of justice are liable to occur in criminal cases by reason of the fact that witnesses, however honest and careful, may make mistakes in identification, particularly where the person identified was unknown to the witness before the commission of the crime.  Experience, including recent experience, has shown that such miscarriages can occur even when all the precautions provided by the law as safeguards against mistaken identification have been fully observed.  It is therefore obviously necessary that at a trial where the evidence implicating the accused is evidence that he was identified by a witness or witnesses who were not previously acquainted with him, both judge and jury should be constantly alert to guard against the possibility that the evidence may be mistaken and an innocent man convicted.....That was a case involving visual identification but the words are equally appropriate, indeed, I would think of greater significance in the case of voice identification.

No such direction was given in this case and his Honour was asked to do that.

BRENNAN CJ:   What is the reference to Smith’s Case?

MR PAPAYANNI:   There are two references, your Honour.

BRENNAN CJ:   I have got (1984) 1 NSWLR, but this citation is from ‑ ‑ ‑

MR PAPAYANNI: That is Mr Justice O’Brien. The other one is from the Court of Criminal Appeal. It is 23 A Crim R 266.

BRENNAN CJ:   I see.  I am sorry, I was misled by the “23A”, but it is 23 A Crim R.

MR PAPAYANNI:   Yes.  His Honour does say at page 473 that a demonstration could not be given.  Of course, that is as his Honour said in that respect.  In the judgment of Mr Justice O’Brien at page 473F - that is of (1984) 1 NSWLR:

Ordinarily the witness will not be able to make an in court identification since, when the witness gives his evidence‑in‑chief, the voice of the accused, unlike his then appearance, will not be presented to the witness and, of course, the accused cannot be obliged (nor would it be proper) to demonstrate his voice in court.

So you get a situation where the accused really cannot be warned beforehand that if he makes a statement that a recording of his voice will be used against him or his voice will be used against him.  So you get the situation that he has to take his chances really in relation to that.

I have cited a number of American authorities in relation to this matter, but the difference in relation to the American authorities is that in some cases there is statutory provisions in relation to providing voice identification, which they are required to do; using the same words as are alleged to have been heard by the victim, and the question of admissibility is a constitutional matter and relies upon the Fifth Amendment and the cases there have to be taken in relation to the fact that the evidence is not admissible having regard to the constitutional question as to the suggestibility in relation to visual identification and voice identification and, even when there is what they call a show‑up, one person is shown to the witness, the question then is in American authorities that if there is a positive identification, the suggestibility issue is not sufficient to require that evidence not to be admitted.

Now, having regard to the authorities here, of course, a show‑up, as they call it, would not be admissible evidence or an identification in court would be excluded as of no weight.  So the situation in America is somewhat different as it is decided on a constitutional issue, whereas in this State, or this country perhaps, the issue is decided on the basis of precedent rather than anything else.  I will not go through all the written submissions in relation to this matter, your Honours, but that is the substance of the argument for the appellant.

BRENNAN CJ:   Thank you, Mr Papayanni.  Mr Howie.

MR HOWIE:   Thank you, your Honours.  I hand up an outline of submissions on behalf of the respondent.

BRENNAN CJ:   Yes, Mr Howie.

MR HOWIE:   The first point perhaps to be made is that this was not an identification case, as such; it was not a case where the jury were being asked to indulge in voice identification.  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.

Wilding identified on the tape three voices:  that was his voice, the voice of the bloke called Warren, who was an undercover operative for the police, and the voice of the appellant, and identified each of those voices to the jury.  Now he was not indulging in what would normally be voice identification, because he was a party to the conversation, so what he was doing was indicating that that conversation had occurred, he was party to it and so was the appellant.  Similarly there was a detective Kaufmann who was listening to the conversations which were coming through from the listening devices and which were being recorded, and he gave evidence that the conversation he heard was the conversation which was recorded, and of course there was police evidence to show what was happening at the time of the conversations so again Kaufmann’s evidence was identification evidence of the appellant being party to the conversations and his voice on the tape, again in a circumstantial way and not in a case of voice identification.

So this was very much unlike Smith’s Case and the other cases where somebody is coming along to court and being asked, or giving evidence, about the identification of a voice on a tape by way of familiarity or peculiarity.  That was not this case.  The only reason that perhaps the question of whether the accused’s voice was on the tape or not arose really from the appellant himself.  At the end of his dock statement he said to the jury that it was not his voice, and what he actually said was, at page 301 volume 2.  Mr Papayanni said, right at the bottom of the page there:

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.

Now that was important, because what the appellant had done, right at the end of his dock statement, was to suggest that he could not hear on the tape any voice which sounded like his, because he did not recognise his voice, and that in some way it had been fabricated by the police by the use of technology.  So what the jury might have been doing at the time then when they asked to hear the tape back, was not to indulge in voice identification as such, but to look at the situation of whether there was some similarity between the two voices, the voice of the appellant in giving the dock statement and the voice on the undercover police officer’s tape, not to determine as a matter beyond reasonable doubt that it was his voice, not to indulge in voice identification, but to indulge in an aspect of circumstantial inference as to whether there was sufficient similarity between the two voices to give any weight to this suggestion:  one, that it was not his voice, and he could not recognise it, it did not even sound like his voice; and that two, it was a matter of the police fabrication.

So, those cases in relation to whether or not a jury would be entitled to use a statement or to use a tape made of the statement as a matter of voice identification, perhaps does not really arise in this case because it was a matter where it was not a case of voice identification and the issue was raised by the appellant himself in the way I have suggested.

BRENNAN CJ:   But the direction that the jury were given was such as to allow them to use the memory of the statement from the dock and the tape of that statement as material tending to establish the truth of the prosecution case that it was his voice on the tape.

MR HOWIE:   That is true, but in a circumstantial way.

BRENNAN CJ:   Be it so, but that was the purpose to which their minds were directed.

MR HOWIE:   True.

BRENNAN CJ:   Now, the question is whether or not the jury are entitled to use that material for that purpose.

MR HOWIE:   If I could start with the tape itself:  we would submit that the tape did not ‑ ‑ ‑

BRENNAN CJ:   Do you mean exhibit D?

MR HOWIE:   I am sorry, no, the tape of the dock statement.  So, I will say the dock statement tape.  We would submit that that did not need to be tendered.  What it was was, in effect, an official means of transcription of the proceedings before the court.  Now, transcriptions can be taken in different ways.  Rawlings which was  ‑ ‑ ‑

GUMMOW J:   That was one character it had.  The question is whether it had some additional character, I suppose.

MR HOWIE:   We would suggest that is the whole characteristic of recording, of making a transcript of the court proceedings.  It may be that in olden days when this technology was not available, that the only thing one could get from a transcript, or get from a recording of the court proceedings, was a transcript of what was said because there was no other means whereby one could capture exactly what was said, capture the voice or capture what actually happened in the court.  But, as technology moves on, and as the court recording of its proceedings moves away from, as it started originally, with judges making notes and counsel making notes so that the transcript of the court’s proceedings for appeals was simply the notes that the judge made or the notes that counsel made or put together, it moved from that to a professional service of shorthand writers who were taking down shorthand so that one was not, any longer, relying upon the notes of the judge so that one went to the transcript. 

And one goes from there to what is happening now in New South Wales, as happened in this matter, where there is no shorthand writer; the record is the tape recording being made of the proceedings and any transcript that is needed is made up from that tape recording.  But the tape recording itself is the record of the proceedings.  One does not tender a transcript; if the jury want a transcript, it does not have to be tendered.  If somebody wants to refer to the transcript and read it to the jury, the transcript is never tendered.  If the judge wants to refer to it, it is not tendered because it is the record of the court’s proceedings.  And all the court is doing is going back and using that record to indicate to the jury what has already taken place.

The Self‑Incrimination Clause of the Fifth Amendment provides that no “person...shall be compelled in any criminal case to be a witness against himself.”  Although the text does not delineate the ways in which a person might be made a “witness against himself,” cf Schmerber v California ‑

which is the blood test case ‑

we have long held that the privilege does not protect a suspect from being compelled by the State to produce “real or physical evidence.”  Rather, the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.”  “In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.  Only then is a person compelled to be a ‘witness’ against himself.”

At page 597, just after the reference to Doe:

Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the “trilemma” of truth, falsity or silence, and hence the response, (whether based on truth or falsity) contains a testimonial component. 

This approach accords with each of our post‑Schmerber cases finding that a particular oral or written response to express or implied questioning was nontestimonial; the questions presented in these cases did not confront the suspects with this trilemma.  As we noted in Doe, the cases upholding compelled writing and voice exemplars did not involve situations in which suspects were asked to communicate any personal beliefs or knowledge of facts, and therefore the suspects were not forced to choose between truthfully or falsely revealing their thoughts.

There are other statements ‑ page 607 ‑ this is the judgment of the Chief Justice Rehnquist who was in dissent in part, but he supports the majority in this point.  It is at the top of page 607:

The need for the use of the human voice does not automatically make an answer testimonial, United States v Wade, any more than does the fact that a question calls for the exhibition of one’s handwriting in written characters, Gilbert v California.  In Schmerber v California we held that the extraction and chemical analysis of a blood sample involved no “shadow of testimonial compulsion upon or enforced communication by the accused.”  All these holdings were based on Justice Holmes’ opinion in Holt v United States, where he said for the Court that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”

The other matters which I will just hand up and I will not take your Honours to in detail at the moment:  if I can hand up to you part of the American Jurisprudence.  For the record, it is 29A American Jurisprudence 2d; I have copies of it here.

I will not take your Honours to them at the moment.  That is just, as your Honours would appreciate, a general review - this is at 1944 - of the law in America in relation to in criminal proceedings the use of testimony or material by an accused person.  At the back of that is the update from the supplement which, I think, is up until 1995.  It is the one on page 344, which will be the second-last page.  It is just a case there called State v Conn, which is about a person being required - it is in the right‑hand column in the middle:

In prosecution for second‑degree burglary and sexual assault, order that defendant speak same words to victim as assailant did at time of assault so that victim could make in‑court voice identification was proper where request for order came during redirect examination of victim in response to cross‑examination which showed that victim had never tried to make voice identification even though asked by police to listen to tape recording.

The only other case that I will hand up to your Honours on that is a fairly recent one, a case called Burnett v Collins because it applies Pennsylvania v Muniz and it is a case in fact where a person was required in court to make voice statement and the case is a fairly good one because from page 925 through to 927 they discuss the cases in America up until that time in 1993 in relation to this sort of material and hold that it was not against breach of the constitutional right against self‑incrimination.

Finally, on this point of privilege - two finallies, I am sorry - there is a case called Deenik which is on the list and I will take you to it.  It is on the submissions.  That was the only English case I could find in relation to it where they held that having to give voice identification in England was not in breach of the privilege.

And finally, there is the recent case in this Court of Environment Protection Authority v Caltex Refining (1992-1993) 178 CLR.  This case, your Honours would remember, was the case concerning whether or not the privilege can be claimed by a company as opposed to a natural person.

The modern rationale for the privilege -

according to the Chief Justice Mason and your Honour Justice Toohey is at page 498 in the middle of the page, and one important matter there is that your Honours referred to the -

“cruel trilemma” of punishment -

which was referred to in Muniz, and which in Muniz they did not find was there when an accused person was required to give voice identification.  There was some discussion of the case as to what the rationale was, whether the rationale was to the onus of proof of being on the Crown gave rise to the privilege; the other was, whether or not it was a matter of human dignity and freedom and privacy.  Page 502 at the top there:

In conformity with the principle, the privilege against self-incrimination protects an accused person who is required by process of law to produce documents which tend to implicate that person in the commission of the offence charged.  The privilege likewise protects a person from producing in other proceedings, including civil proceedings, documents which might tend to incriminate that person.  In its application to the production of documents, the operation of the privilege is more far reaching in the protection which it gives than in its application to oral evidence.  It is one thing to protect a person from testifying to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt, especially documents which are in the nature of real evidence.  Indeed, the protection afforded by the privilege is now so far reaching that it has been described as protection against being compelled to say anything which “may tend to bring him into the peril and possibility of being convicted as a criminal” or as protection “against exposure to conviction for a crime”.  That is because the privilege protects a person from discovering or revealing information which may lead to the discovery of admissible evidence of guilt not in his or her possession or power.

In this respect the protection now conferred by the privilege extends well beyond the objects originally sought to be achieved by way of protecting natural persons from the abuses which necessitated the introduction of the privilege.  True it is that the production of documents pursuant to process of law, such as a subpoena duces tecum, involves some testimonial aspects.  Thus, by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given.  But the privilege inhibits the production of books which might be used in evidence and are in the  nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings.  Plainly enough the case for protecting a person from compulsion to make an admission of guilt is much stronger than the case for protecting a person from compulsion to produce books or documents which are in the nature of real evidence of guilt and are not testimonial in character.

Also this Court held that the protection against self‑incrimination was not a fundamental aspect of criminal trial or of the accusatorial system.  The only other reference that I just mention to your Honours is your Honour the Chief Justice at page 514:

The privilege is designed to protect human dignity.  It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender.  The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty.  The balance between law enforcement and the interests of a corporation must be struck differently.

One other passage is at page 527 in the joint judgment of Justice Deane, Justice Dawson and your Honour Justice Gaudron.  At the bottom of the page:

So far as documents are concerned, it may be thought that the maxim nemo tenetur seipsum prodere has a limited application, for documents are more in the nature of real evidence and speak for themselves in contrast to evidence of a testimonial kind.  It is said, particularly in the United States, that there is a testimonial element in the production of documents because the person producing them identifies the documents produced as those being sought.  There is a certain technicality about that explanation.  In reality, the privilege protects a person from being compelled to produce evidence which will incriminate him, whether testimonial or not.  That is clear enough in a criminal trial where an accused cannot be compelled by the prosecution to produce documents.  But the immunity enjoyed by an accused in a criminal trial extends to evidence of any kind,

whether incriminating or not.  The immunity is, perhaps, better explained by the principle that the prosecution bears the onus of proving its case, than by the more confined principle that an accused has a privilege against self‑incrimination, notwithstanding that both have a common origin.

Finally, Justice McHugh’s judgment at page 544 discussing the rationales:

Many and varied are the justifications that have been given for this privilege.  Historically, it probably arose as a response to what was perceived as an abuse or potential abuse of power by the Crown in the examination of suspects or witnesses.  Once the Crown is able to compel the answering of a question, it is a short step to accepting that the Crown is entitled to use such means as are necessary to get the answer.  Those means need not necessarily involve physical coercion.  Confessions can be obtained by inhumane means without the necessity to resort to the rack or other forms of physical torture.  By insisting that a person could not be compelled to incriminate him or herself, the common law thus sought to ensure that the Crown would not use its power to oppress an accused person or witness and compel that person to provide evidence against him or herself.

We would suggest that there is nothing in those judgments and other passages that I have not read which would tend to indicate that the privilege extends, apart from the exception of documents which seem to have come around and from equity and use of the privilege would tend to indicate the privilege extends to the accused’s person and voice and any other matters about him which are part of his physical character and nature.

I will not take your Honours to the other grounds.  The only other relevant ground now seems to be ground 2.  Unless your Honours want me to I do not intend to say anything about grounds 3, 4 and 5.

BRENNAN CJ:   No, it is not necessary.

MR HOWIE:   They are the submissions I make.

BRENNAN CJ:   Mr Papayanni, do you have anything in reply?

MR PAPAYANNI:   Just in relation to the American authorities, one has to be careful, as I said, because it is a constitutional matter and when a witness gives evidence in America it is considered that he has waived his privilege in relation to self‑incrimination, and for that reason it does not apply once he gives evidence.

In relation to - even having that in regard - I have given your Honours the case of Marini and your Honours, I take it, will have copies of it, but in that case the accused gave evidence, the victim was asked to come into court and then the prosecutor asked the accused to say the exact words that the person who had contact with the victim had said, and the court held that was an error and was not admissible.  That is set out in Marini’s Case which, even though the accused gave evidence, in effect that was held to be inadmissible.  That is, if your Honours have the case, on 52, where the court said at the top of the left‑hand column, held that:

It was error to permit prosecutor to stage voice identification by the victim where the identification was on a one‑on‑one basis while the defendant, who had previously been identified by the victim, was in full view of the victim, and while the defendant spoke the same “damning words” which had been spoken by the assailant at the time of the crime -

and that was reported by the:

one‑on‑one identification, with the defendant in full sight of the victim, and having the victim -

it should be “the defendant”, I think -

state the “damning words”.

So that was a similar situation where it was held inadmissible.

MR PAPAYANNI:   The situation in relation to transcript, on the page 374 that I indicated that there was no objection to the transcript, but I did object to anything further and, of course, the whole idea of section 55C was to record what was said and it could be played back to the jury rather than a transcript on occasions in relation to a witness as to what he said.  But, it is a different matter when one then comes to the question of comparison because, as was said, the Crown had given no notice of what was said; the accused has no opportunity of bringing any expert evidence to say that the tape of the unsworn statement is not - the voice on that is not the voice on exhibit D.  That is fresh evidence and been brought in at that late stage, which gives the accused no opportunity of denying that his voice in the statement or bringing any expert evidence in relation to it.  That situation is just a chance provision that if one goes into court and there is a question of identification do and you say to the court, “I object to this court.  I want it to be done by a shorthand writer?”.  One judge objected to recordings in relation to his court, and they were done by shorthand writers.  It is a matter of chance.  It should not be a matter of chance upon which an accused can be convicted and taken by surprise or, as in the situation here.  That, in my submission, is quite unfair in the circumstances, and gives rise to a miscarriage of justice, especially at such a late stage.

The Crown had cited certain authorities in relation to a judge having discretion to allow evidence at certain stages.  Section 402 does not allow that.  It is a statutory provision that all the evidence must be in before the accused make - and the address of the Crown must be given before, and that is quite clear.  The word is “shall” not “may”, and “shall”, in my submission, there, cannot be interpreted “any address by the prosecution shall be given all the evidence” - that is:

all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence.

That is under section 402.  It is quite clear.  It is different to a situation in England: Lord Goddard’s provision in relation to that and also section 402 was never considered in relation to - or a similar provision in relation to a question of his Honour having a discretion after that.  In my submission, he has no discretion in any case.

The situation in Victoria does not agree with the law in New South Wales.  The Court is not going to go into that.  That is supported by the case of.....in America which says there must be peculiarity or familiarity in relation to voice identification.  The cases in Victoria do not support an identification of a tape that is not in evidence with a tape that is in evidence and a jury, in my submission, are not competent to do that.  Thank you.

BRENNAN CJ:   Thank you, Mr Papayanni.

MR PAPAYANNI:   Just one thing perhaps.  I gave your Honours the Tasmanian article by Helen Fraser of the New England University and it is in relation to voice identification.  She says:

Caution urged

In short, phoneticians at the conference were unanimous that speaker identification statements should be used with extreme caution, especially in courtroom situations.  There was discussion of the term “Voiceprint” as a popular term for a spectrogram (a visual representation of speech commonly used in phonetics laboratories).  This term was felt to suggest a parallel with “fingerprint” that is

totally unwarranted.  A better analogy is with an “Identikit” image, giving clues to a person’s identity.  Another useful comparison is that a spectrogram is like a footprint, which can give useful information about a person’s size, weight, stance and so on, but is very far from allowing positive identification of the walker.

And that is the situation, in my submission, in relation to the difference between some person, lay person, making a comparison and a jury making a comparison not assisted with expert evidence.

BRENNAN CJ:   Thank you, Mr Papayanni.  The Court will consider its decision in this matter and will adjourn until Tuesday next at 10.15 am.

AT 1.01 PM THE MATTER WAS ADJOURNED