Bulejcik v The Queen

[1995] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 1995

B e t w e e n -

ANTON BULEJCIK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 11.11 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Brock Partners)

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J:   Mr Papayanni.

MR PAPAYANNI:   I have three copies of the case of Morgillo if the Court does not have those.   This was a case in which a somewhat unusual procedure was taken and that was that after the accused had made his statement and after the addresses of counsel for the Crown and counsel for the accused and during his Honour’s summing up, his Honour then told the jury that they could compare the statement - the voice of the accused, and the recording of that with tape that was in evidence.  That tape that was in evidence was disputed.  On that tape there were three voices:  one of the undercover police officer, one of an informer who had set it up, in effect, and one alleged to be of the applicant, which he denied.

The situation in relation to the tape:  it was not produced at the committal hearing; it was not produced on the first date that the case came on for trial and no knowledge of it was given until about two days before the case came on in relation to the second hearing of the trial, and then adjournment was granted and the case came on.

Now, the tape was vital, of course, in this matter but part of the tape was in fact missing.  The vital part of the tape was, in this case, it was alleged it was supply but in relation to that the definition was relied upon in relation to the applicant having it in possession for supply and that was relied upon by the Crown and the incident around the car in which the accused was said to have had the drug in his possession at that time and, of course, the tape had cut out before that incident and that was disputed by the applicant.

TOOHEY J:   Mr Papayanni, what is the point involved here?  Is it that the jury should not have been permitted to make any comparison of voices by reference to the material with which they were supplied?

MR PAPAYANNI:   That is correct.  Well, we say that because the tape was not in evidence and at that stage, of course, as I say, it was after addresses.  The jury were required, according to their oath, to give a verdict according to the evidence.  The tape was not in evidence and here you have the opposite of what is the law, as we put it.

TOOHEY J:   Sorry, when you say “tape”, which tape are you referring to?

MR PAPAYANNI:   The tape of the accused’s statement, when he made his statement.  That was played over for the jury after the summing up was finished.  Now, we say that you cannot compare something that is not in evidence in order to confirm what is disputed, like in a disputed document.  To have a disputed document you compare what is in evidence.  You bring evidence of the accused’s handwriting or something of that kind and that goes into evidence.  Then the disputed document is brought and it is related to that, and you may have handwriting evidence or it may rely upon the jury.  In this case the reverse took place.  What was disputed, which is already in evidence, was compared with something that was not in evidence.  Now, that was after all addresses had been made and occurred after the summing up.  And, of course, counsel had no opportunity to address on that. 

Now, there was only one previous case in relation to that; that was the case of Morgillo and that is the case that was unreported, a case in a trial of Mr Justice Campbell.  Mr Justice Carruthers doubted whether that was valid.  Now, the accused’s statement, in this case, took about 40 minutes.  In Morgillo’s Case the statement took about 36 minutes.  His Honour Mr Justice Campbell said they could not compare the voice of the accused in that case in order to compare it with two telephone communications or tapes in relation to the accused’s home.  That was disputed in that case.  His Honour held because - and the Crown conceded it in that case - the accused were not familiar and it was not sufficient to say that they could be familiar with the voice by reason of just hearing him for 40 minutes in a setting.

Now, in this case, when the applicant made his statement, of course, it is not known whether the jury were concentrating on what he was saying or whether they were concentrating on his voice.  Then during the summing up, as I have said, his Honour referred to that situation.  That was objected to, of course.  Then his Honour was asked to make the traditional direction in relation to the dangers of mistakes and miscarriages as set out in Smith’s Case 23 A Crim R, at page 280 where Chief Justice Gibbs said - that was the direction which has been traditional in relation to visual identification:

“It is now 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 -

and it goes on, et cetera, in relation to that to say that miscarriages of justice have occurred, and so on.

Now, his Honour would not give that direction.  The Court of Criminal Appeal held that it was not necessary to give that.  The direction that his Honour gave was only in relation to the circumstances of the recording, and that is set out on page 13.

TOOHEY J:   What was the precise sequence of events, Mr Papayanni?  As I understand it, after the trial judge had completed his charge to the jury, the jury asked for - - -?

MR PAPAYANNI:   No, during his summing up.  It is shown on page 9.  The parts are set out there.  At page 9, at line 30, set out there, his Honour then said:

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 at the bottom of that page, at line 55:

You have the accused having given you a statement in court and you can use your memory of his voice -

and so on.

TOOHEY J:   Yes, but I was asking you about the use made by the jury of the tape of the unsworn statement made by the applicant.  At what point did the question of the use of that tape arise?

MR PAPAYANNI:   Well then, his Honour said, at line 25 on page 10:

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.

Now, the jury had asked for that but they had not asked for it, obviously, to compare the voice on the tape.  But then his Honour went on to say, at line 35: 

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. 

Well then, when his Honour played the tape at the end, that was played for the purpose of them comparing what was on the tape of the accused’s statement and just before that the tape that was in evidence was played to the jury, so that they could - - -

TOOHEY J:   Why do you say it was played for that purpose?

MR PAPAYANNI:   His Honour indicated that.

DEANE J:   Where did he indicate that?

MR PAPAYANNI:   It was done for that purpose because it was objected to.  His Honour told the jury - it is not recorded here - - -

TOOHEY J:   It does not emerge from the passages that you have read to us and, indeed, the passages that you have read speak of the trial judge inviting the jury to compare the tape, being the tape of the interview, with what the applicant said in the course of his unsworn statement.

MR PAPAYANNI:   Yes, but at the end of his Honour’s summing up he played first the tape that was in evidence and then his Honour played - - -

TOOHEY J:   I am sorry, I said record of interview.  That was not correct.

MR PAPAYANNI:   - - - the tape of the accused’s statement for the purpose of comparison.

TOOHEY J:   Where does that appear.

MR PAPAYANNI:   That appeared in the transcript.  It may not be in this recording here.

DEANE J:   And where does the objection taken by counsel appear?

MR PAPAYANNI:   The objection was taken after his Honour’s summing up when his Honour directed that the jury could compare with the voice.

DEANE J:   Have we got that before us?

MR PAPAYANNI:   No, it is not before the Court.

DEANE J:   Well, it should be, should it not?

MR PAPAYANNI:   It would have been necessary to get leave otherwise if the objection had not been taken and the court did not refer to it.

DEANE J:   But it is relevant for us to know what happened.  Have you got a transcript of what happened that you can put before us?

MR PAPAYANNI:   No, I do not, no.

MR COWDERY:   Your Honours, I could assist with a copy of the transcript of the summing up which has some highlighting on it, and I have only one copy.

DEANE J:   That does show what happened, does it, Mr Cowdery?

MR COWDERY:   It does, your Honours.  The passages that are reproduced in the application book are identified by page numbers but the playing back of the tape - - -

DEANE J:   If you could just open it where the things are happening so we can have a look at it.  Yes, Mr Papayanni?

MR PAPAYANNI:   I did not read that closely but I do not know whether it shows there that I did refer to Morgillo’s Case and that was incorrectly recorded because I was well aware of the case at the time.

DEANE J:   Except - perhaps “except” is not the right word.  It does indicate that no objection was suggested on the basis that the tape of the dock statement should have been formally authenticated.

MR PAPAYANNI:   Well, I had objected to the procedure before that and argued Morgillo’s Case and that by reason of the situation as Mr Justice O’Brien had found in Smith’s Case that the two matters in relation to voice identification were familiarity, and also distinctive quality.  In Smith’s Case it was distinctive quality.

DEANE J:   You are missing - and, no doubt, it is my fault - what I was suggesting to you and that is you have a substantive point that the procedure was objectionable in its nature.  There is a formal point that, on one approach, the tape of the dock statement should have been proved as an accurate recording of what the accused had said in his dock statement before any use could be made of it.  Well now, as I read that, no objection was taken on that ground.

MR PAPAYANNI:   Well, no, because the procedure was objected to in the first place.  It could have easily been tendered in evidence.  There is no worry in relation to that situation because you only need anybody in court to have identified him:  one of the detectives and so on.  But it was the procedure and the fact that they could not compare it and also this situation ‑ ‑ ‑

DEANE J:   I follow that.

MR PAPAYANNI:    The question of bringing evidence and allowing evidence by the Crown after the summing up is a most unusual procedure.  The situation now is, of course, if an accused gives evidence, the recording of that, as is required to do now in relation to certain matters after 10 June last year if he is charged, well then, the Crown can then have that recording of what is in his evidence and then tender it in reply.  Well, it cannot be tendered in reply because the Crown should put their whole case in-chief.

McHUGH J:   I do not know about that.  There are exceptions to the rule and I would have thought this was a proper case where the Crown could tender the tape recording.  But your point is more fundamental, is it not, that there has been a fundamental defect of procedure; you had no opportunity to address on the tape or tell the jury that - - -

MR PAPAYANNI:   That is correct.  And whether the procedure was correct or not and whether it could have been dealt with in another way, if it had been tendered in evidence and if there had been an opportunity to address on that.  But all the evidence has passed.  The Crown has addressed and the accused has addressed and then this comes before the court as an additional part of evidence.  The jury then become witnesses and, of course, it was argued in relation to that that one witness may say, yes, it is his voice, and so on.  That was referred to in Morgillo’s Case where the same situation arose there and that argument was rejected by his Honour.  But his Honour Mr Justice Carruthers rejected the fact, really, that even though the Crown conceded it in Morgillo’s Case that familiarity over a period of 40 minutes with the voice, when you were not concentrating on his voice itself or may not have been concentrating on his voice itself but, rather, on what he was saying would be sufficient to qualify then in relation to familiarity.  That, in our submission, was not a proper procedure; was not fair to the accused, and did not give him any opportunity to respond in relation to that.

If I may say this, also, that the question of the warning was vital as well.  This was a case, of course, where there was alleged to be a set-up.  The situation was shown that the police at 4 o’clock in their briefing had arranged to be at this particular spot at McDonald’s in Blacktown before it was alleged by the accused that he arranged to be at this address at 6 o’clock.  Now, that was only one of the matters.  The position where they came in McDonald’s was on the opposite side to where the drug was supposed to be found.  The accused was supposed to have picked it up and taken it with him.  The police car was stationed over the other side near the Pizza Hut at Blacktown and right opposite the situation where this drug was supposed to be found.

The situation after that was, of course, it was alleged that the accused had one ounce - another ounce at his home and a search there failed to reveal other than a small foil of similar heroin and an allegation was made against the police in relation to this matter of their stealing $4,000 from his home.  There were a number of allegations in relation to the police seeing the accused in relation to that which was denied, of course.  So, the situation really came about that the tape itself did not have the vital part on it.  His honour misdirected as to possession.  His Honour said in relation to possession that it is sufficient if the accused knew where the drug was and, of course, the fact that the Crown was relying on possession of the car, not possession under the tree.  All those situations, in our submission, at this point is an important point because it has not occurred except once before and it is going to occur again in relation to persons giving evidence and the fundamental matter is that in voice identification there is no need to give the traditional warning as to the dangers of miscarriages of justice.  That is the law now in this State.  You have to give it in relation to visual identification but you do not have to give it in relation to voice identification.

TOOHEY J:   I am still not clear what precisely is the point involved here, Mr Papayanni.  You said, I think, at one stage that had application been made to tender the tape of the unsworn statement there would have been no objection to that.

MR PAPAYANNI:   I did not say that, your Honour.  I said they could have attempted to tender it.

TOOHEY J:   I see.

MR PAPAYANNI:   They could have tendered it and it would have been objected to by reason of the fact the jury could not compare - - -

TOOHEY J:   Well, let us take it step by step.  It is a question of admissibility.  Do you say the jury were not entitled to have that tape, however it was proved, for the purpose of voice identification or that they were only entitled to have it with appropriate directions?

MR PAPAYANNI:   It would have been objected to on the basis that it was too late, and Justice McHugh does not accept that.  But it would also have been objected to - that the jury would have had to sit in the jury room and play the tape over and over again until they became familiar with it.  Now, some of the jury might have become familiar after they had played it once.  Some may never have become familiar with the tape.  So, in that situation you have a jury giving evidence.  Now, it is a procedure that should not be carried out behind closed doors.  Evidence is supposed to be out in the open.  If a witness is familiar with the voice or the voice has distinctive qualities, well then, a witness gives evidence and can be cross-examined.  You cannot cross-examine jurymen when they are listening to a tape.

McHUGH J:   No, but take handwriting.  Is it section 36 of the New South Wales Evidence Act  that allows a jury to use its own judgment to compare the accused’s handwriting with some other piece of handwriting?

MR PAPAYANNI:   There is no doubt about that.  You have the same position in relation to a photograph.  But this is totally a different situation because - - -

McHUGH J:   I do not know that it is.

MR PAPAYANNI:   - - - in this State, that is New South Wales, you cannot rely on voice identification unless it has a distinctive quality which the Crown conceded in this case that it did not.

McHUGH J:   With great respect to Justice Campbell, I do not think Smith’s Case has the slightest thing to do with this particular issue.  In Smith’s Case it is a question of whether or not a witness can recollect and give evidence about what somebody said, about somebody’s voice.  Here we are comparing tapes of the accused.

MR PAPAYANNI:   Yes, but, of course, in Smith’s Case there was a tape also and it was a tape of the Petty Sessions and that was proved to have been - when Smith was appearing for himself in the Petty Sessions Court that tape was also before the court but only for the purpose to see that it had a distinctive quality.  It was not there to compare it with the voice of the accused, and that is our submission in this case.

TOOHEY J:   Can I just put this to you because, I must confess, I am still a bit at sea.  If the tape, that is the tape upon which the Crown relied which included several voices, one of which was said to be your client’s, was admitted in evidence and a tape was available and properly proved in which your client had on a quite different occasion spoken and had his voice

recorded, would those tapes have been available to the jury to make a comparison of voice for the purpose of determining whether or not the accused’s voice appeared on the tape that was being challenged?

MR PAPAYANNI:   Well, they would have been available to the accused.  But our submission is that the law here is that you cannot identify somebody else’s voice unless there is a distinctive quality which is conceded there was not - - -

TOOHEY J:   That is another question again.  I thought your point was quite fundamental - - -

MR PAPAYANNI:   I understand what your Honour says but the jury would have to play the tape over and over until they became familiar with the voice - some of them, as I said, may never become familiar - before they could attempt to compare it with the disputed tape.  That is the situation here and that is the unhealthy situation where the jury are going to do something which you cannot cross-examine them on.  If a person says, “I am familiar with this person’s voice” and then he says, “It’s on that tape”, you can then cross-examine him.  He gives evidence as a witness.  But if a jury is asked to be a witness in relation to a matter where it is a vital matter - it is a different matter, in our submission, in relation to handwriting because that is a matter that anybody is qualified to give.  But in this State the qualification in relation to voice identification is distinctive quality or familiarity, and they had neither of that, the jury, in order to compare the tape.  That is the vital point in this case, in our submission.

DEANE J:   Yes, Mr Cowdery?

MR COWDERY:   Your Honours, the procedure followed in this trial was in two stages.  The first instance, the events that are recorded at pages 9, 10 and 11 of the application book occurred and the trial judge gave directions on the question of the identification of the voices on the tape and, more particularly, the identification of the applicant’s voice on the tape, that being relevant to the issue of whether or not the tape was a fabrication or a “fake”, as the word was used.

In the course of the summing up, his Honour made those directions that are recorded at pages 10 and 11, referring to a comparison that might be made between the tape that was in evidence and the jury’s memory of the voice of the applicant when he made his statement, memory of that speech, unassisted by any mechanical aid.  The statement went for some 40 minutes.  Those directions were given.  His Honour gave directions about the differences in the recording device and the playback device between the time of the making of the original recording and its playing back in court, still without any reference to a tape recording of the dock statement itself.

TOOHEY J:   And without objection from the applicant?

MR COWDERY:   And without objection, yes.  Those directions were given.  There was no objection, no application for further directions in relation to that matter except the reference to Morgillo’s Case which was made in the course of applications for further directions at page 63 of the transcript of the summing up.  What was said about that was this - these are applications by counsel for the applicant:

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.  This question occurred before Mr Justice Campbell, in a case of -

Morgillo is the one, obviously, that was being referred to but it was mistranscribed -

and he rejected that, your Honour, for the reason that, apart from other types of evidence, voice identification evidence, is a special type of identification as your Honour knows in Smith’s case what Mr Justice O’Brien said there.

And counsel then referred to a distinctive quality or a familiarity with the voice and made the submission that the trial judge should withdraw that direction from the jury, that they are not entitled to do it “and I told them that”, which must be a reference to something that was said in the course of counsel’s address.

Now, his Honour sought submissions from the Crown Prosecutor at page 65 of the transcript and submissions were made that those directions in accordance with Smith of familiarity or distinctive quality were not appropriate to the issue that was being debated at that time and his Honour said that he did “not propose to withdraw that comment.”  The summing up was then completed - - -

TOOHEY J:   Could I just interrupt you before you move on.  At one point Mr Papayanni seemed to be saying that putting completely to one side the transcript of the applicant’s unsworn statement, it was not open to the jury to make a comparison themselves between the voice on the tape and the voice of the applicant as they heard it when he was giving his unsworn statement.  What do you say about that?

MR COWDERY:   In our submission, your Honour, there is no reason in principle why the jury should not be permitted to make that comparison provided that they are given directions and assistance in discriminating between the nature of a voice recorded on a tape recorder and the nature of a live speech.  Those kinds of matters were covered by the trial judge in his directions at the time that he invited the jury to make that comparison.

TOOHEY J:   Ordinarily that sort of voice comparison, unless it is made by an expert, is based on familiarity with the voice of the person in question, I think.  In this case, the jury was invited to make the comparison, having heard the applicant speak only on one occasion for some length of time.

MR COWDERY:   For 40 minutes.

TOOHEY J:   Yes, but not based on any other familiarity with the applicant’s voice.  Is there authority, one way or another, on this particular aspect?

MR COWDERY:   Not that we are aware of, your Honour.  But we would submit that in the circumstances of this case, by enabling the jury to listen to the tape recording of the making of the dock statement - - -

TOOHEY J:   Yes, I had stopped you at that point because I wanted to isolate that for a moment in order to see whether the first step that had been taken, namely, the direction to the jury that they could make the comparison between the voice on the tape and the voice that they heard in court of the applicant, was an exercise they could properly carry out.

MR COWDERY:   The only case we have found, your Honours, is in fact Morgillo that touches on that issue.  Mr Justice Campbell in that case took the view that a speech of 36 minutes duration was not sufficient, and then dealt with other issues arising from it.

McHUGH J:   But there do seem to be two points of principle involved in this case, do there not?  One is the one that has just been identified as to whether or not a jury can make this comparison themselves unaided by expert or other evidence.  And the second, and this concerns me, is there seems to have been a fundamental defect in procedure here, that this recording was not being used simply to show what the accused had said in evidence but at a late stage after counsels’ addresses it was being used in an evidentiary way without ever being tendered in evidence and without counsel either for the Crown or the accused having an opportunity to address on it.

MR COWDERY:   We would characterise it differently, your Honour.  The way that we submit it was being dealt with was to remind the jury of what they had heard.

McHUGH J:   But it could not remind them because its importance lay in the way it sounded in the playback, and the judge emphasised that in the passage that is at page 10:

You must be careful.....because, do not overlook the fact, that the recording device is different.....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 - - -

MR COWDERY:   With respect, your Honour, his Honour was not there referring to the tape recording of the dock statement.  He was referring to the tape recording, the primary evidence, and its replaying in court.

McHUGH J:   I see, yes.

TOOHEY J:   So, the application book does not really contain any material at all relating to the use that the jury might make of the playback of the unsworn statement.

MR COWDERY:   No, it does not.  Those incidents occurred later in the proceedings.

DEANE J:   Is what Mr Papayanni said common ground, that the jury were enabled to take both tapes into the jury room with a tape recorder and play them over and over again?

MR PAPAYANNI:   Could I correct that?  They could not do it, your Honour, because they had to be in court.  They were using special headphones.  So, he told them that they could come back any time and he would play it for them in court.

DEANE J:   So, there was only one playing over of the tape of the dock statement?

MR PAPAYANNI:   No, they could not play any of them over again unless they did it in court - - -

DEANE J:   If you would just listen to what I said.  There was only one playing over of the dock statement.

MR PAPAYANNI:   Yes.

DEANE J:   I misunderstood what Mr Papayanni said.

MR COWDERY:   The issue of the playing of the tape of the dock statement arose when the jury asked a question and that occurred at page 71.  The jury sent in a note and his Honour said, on the transcript:

Now you have asked in your note to hear on the headphones the recording - - -

DEANE J:   That is the critical point at this stage, is it not?

MR COWDERY:   Yes.

DEANE J:   Can the recording properly be used in a way that would be understood by the jury as enabling evidentiary use to be made of the recording as a recording as distinct from a reading or a repetition of the content of what had been said.

MR COWDERY:   Perhaps the line that we take is somewhere between the two competing propositions, your Honours, that we would submit that having listened to the accused, there having been submissions in the course of addresses on that statement and its method of delivery, the jury then asked to hear that statement replayed to them, we would submit, for the purpose of bringing back to their minds the sounds that they had already heard and not for any closer analysis and that that was a legitimate use of that recording in these circumstances.

DEANE J:   There is a formal problem that perhaps, in the context of this case, where counsel who was there does not suggest any lack of genuineness in the tape.  What if the formal problem were removed and an application had been made to have the tape as such received into evidence, the trial judge, in all the circumstances, had said, “Well, I will do it - allow it at this stage”, and it had been received.  What use would you say could then be legitimately made of it?  Could the jury have then said, “You heard him make the statement.  You can now hear a tape of it.  You can compare his voice on that tape with the voice on the tape that is in evidence, the earlier tape”.

MR COWDERY:   In this case, of course, there were no directions of that sort and the way in which the tape recording was dealt with was merely by way of bringing back to the minds of the jury, we would submit, what they had already heard.

DEANE J:   Yes, but is that not the ultimate point in that, unless I am missing something, the way the matter was left with the jury was that it was open to them to compare the two tapes, particularly when one had been played immediately after the other and to go out and say, “For heaven’s sake, we don’t have to worry about difference between tapes and his voice, we heard the two tapes of his voice and they are obviously the same”.

MR COWDERY:   Yes, that certainly was the course that was taken.

DEANE J:   Well now, you would say that, putting aside the formalities, that is a permissible course?

MR COWDERY:   Yes, in the context of the directions that had already been given about identification from tape recordings.

TOOHEY J:   I must confess I am still a bit troubled about the anterior aspect of it because you may have a situation at the trial in which the question of voice identification is important, in particular, the accused’s voice.  The evidence that really identifies the voice on a tape, say, is pretty equivocal.  The accused gives evidence or makes an unsworn statement.  The jury are then entitled to use the voice that they have heard for the purpose of making that - maybe for the purpose of remedying any inadequacy in the evidence thus far.  Should the accused be warned in those circumstances that “If you go into the box to give evidence, what you say or your voice can be used by the jury to make a comparison”?

MR COWDERY:   Yes, leaving aside formal defects that might have occurred.  Could I give this example:  if somebody giving evidence of visual identification of the accused said he had a tattoo of a butterfly in the middle of his forehead and the jury concede, without any evidence being given or without anything being said that the accused has a tattoo of a butterfly in the middle of his forehead.

DEANE J:   Perhaps he might wear a big piece of sticking plaster on his forehead.

MR COWDERY:   I am sorry, your Honour, that was absolutely unintentional.  But events that occur within the courtroom during the course of the trial may be considered by the jury, either because they have become the subject of formal proof of evidence that is tendered in a formal way or because they are matters that are observed by everybody present in the courtroom and able legitimately to be commented upon by counsel and taken note of by the jury and listening to the voice of an accused would be one of those circumstances, we would submit.  I think that those are our submissions, your Honours.

DEANE J:   Yes, Mr Papayanni?

MR PAPAYANNI:   Just in relation to that.  If a person had a tattoo on his chest, well then, if he gave a statement from the dock and said, “I haven’t got a tattoo on my chest” he is not required to reveal and open his chest.  If he gives evidence and he says nothing, the Crown then says, “Have you got a tattoo on your chest?  Bare your chest”, cross-examines him, does he have to do that?  The question in relation to section 55 of the Jury Act in this case - the position arose.  I said, “I’ve no objection to the jury having a copy of the transcript but I do object to them having the accused’s statement, the recording of the accused’s statement played over” because under section 55 of the Jury Act it says that the judge may make available to the jury, if it is appropriate and practicable, a transcript of the proceedings.  In relation to the first point, in relation to voice identification, of course, in America the situation is they use voice prints and a book by J.C. Tozey is on that and, of course, the person who gives that evidence has to be qualified.

They also have given evidence of voice prints in a case of Gilmore in this State and that was for the defence and that was ruled out and the Court of Criminal Appeal said it was admissible.  But that was by an expert.  And they were the occasions in relation to voice prints which were done in different ways, and that has been the situation since the war, really.  It was used in relation to the panzer division by the Americans and that is the situation in America.  But a different situation still applies, on the American authorities, as pointed out by Mr Justice O’Brien, and in the Devlin Report the qualification for identification of a voice is distinctive quality or familiarity and that is the situation in this State.

DEANE J:   The Court will give its decision on this application at 2 pm.

AT 11.57 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.01 PM:

DEANE J:   In this matter there will be a grant of special leave to appeal.

AT 2.01 PM THE MATTER WAS CONCLUDED