Callaghan v The Queen

[2004] HCATrans 25

[2004] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M27 of 2003

B e t w e e n -

CHRISTOPHER PAUL CALLAGHAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 2.22 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant.  (instructed by Slades & Parsons)

MR P.A. COGHLAN, QC:   May it please the Court, I appear with my learned friend, MS S.E. PULLEN, for the respondent.  (instructed by the Solicitor for Public Prosecutions (Victoria))

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, in Bulejcik v The Queen this Court made clear that it would wait until another day to decide the question of the admissibility of voice identification evidence, in particular, the correctness of the decisions of the New South Wales line of authority, commencing with Smith’s Case, and whether that line of authority was correct compared with, for example, the Victorian line of authorities which focuses more on discretion rather than having preconditions.  It is submitted that this is a case which raises those issues and for that reason it is a case fit for special leave.

HAYNE J:   Am I right in understanding that the objection taken at trial was an objection on the basis that the evidence was speculative – and leave aside what they may encompass – and on the basis that its prejudicial value outweighed its probative value?

MR CROUCHER:   Yes.  Counsel obviously felt bound by the Victorian line of authority and did not seek to argue that Smith’s Case and so on could indeed in any way bind the trial judge and, of course, the judge would have been wrong to do anything else in the circumstances.  Nevertheless, the arguments that he put on the question of prejudice and probative value were the very same points that would raise in a Smith‑type argument, if I can put it that way.  It is clear enough that the two preconditions spoken of in Smith’s Case and subsequent cases, namely, lack of prior familiarity or, alternatively – it is disjunctive – absence of something particularly distinctive about the voice.  Neither of those preconditions, on the evidence, could ever be satisfied, so that under a strict reading of Smith’s Case, subject to one qualification, the evidence would not have been admissible.

That qualification is that this evidence was never put as anything higher than evidence of similarity.  Smith’s Case seems to have been confined to positive identification cases, as opposed to cases of circumstantial identification evidence, to use Justice McHugh’s phrase in Festa’s Case.  However, one of the points that I seek to agitate on this application is that that cannot be right in itself, but I will come to that shortly.

One of the things that is put in the way by the respondent is that Festa somehow decides all of these issues.  True enough that Festa deals in broad terms with identification evidence, but it is particularly focused on visual identification.  The four witnesses whose evidence was subject to dispute in Festa’s Case; three of them concerned visual identification evidence, one of them concerned voice identification but mixed with other bases for identification. 

It had already been decided in the New South Wales line of cases in a Queensland case – Corke actually – that where there was a mixed identification or a mixed basis for identification, that Smith did not apply anyway.  So that is no impediment in this case.  Indeed, it is submitted that it is clear enough that none of the majority Justices in Festa’s Case specifically addressed this question of the conflict between Smith’s Case and the line of Smith cases and the Victorian cases and other cases.  If you look in the judgment of Chief Justice Gleeson, there is no reference to Smith’s Case or to the controversy in Bulejcik that is raised in Bulejcik’s Case, nor in your Honour’s judgment which refers across to the Chief Justice’s judgment, nor in Justice McHugh’s judgment.

HAYNE J:   Does not this classification that now seems to be urged by you reveal the difficulties that underpin the Smith line of authority?

MR CROUCHER:   There may be difficulties with it but it is yet to be argued.

HAYNE J:   What is then the proposition which you would ultimately wish to advance here?

MR CROUCHER:   That the line is broadly correct.

HAYNE J:   What are the preconditions?

MR CROUCHER:   Those two preconditions that are spoken of in Smith, either previous familiarity or something particularly distinctive about the voice.  The reasons why they might be considered to be, and I say are, important considerations and should be preconditions are these.  Firstly, the very detailed discussion in Smith’s Case itself – and I will not take your Honours to that in any detail, obviously – but, secondly, the nature of voice identification evidence, absent those types of preconditions, is so likely to be unreliable that it ought not be led.

The unusual fact about this case was that the applicant did have a very distinctive voice and it was urged time and again by trial counsel.  I do not know if it was ever said but an Australian Gus Mecurio, or Australian accent Gus Mecurio, is how you would describe him.  If you did not pick him out, there would be something wrong.  The fact of the matter in this case was that of the five witnesses one of them did not pick him out at all and picked two others, two of the witnesses picked others and positively excluded him, and two of them picked him but at the end said similar, or that is the way in which it was ‑ ‑ ‑

HAYNE J:   Did all that come out at trial?

MR CROUCHER:   Yes, it did, except that – and I will come to the directions on part of those points in a moment, but ‑ ‑ ‑

HAYNE J:   No doubt counsel for the accused happened to mention that more than once in the course of the address.

MR CROUCHER:   I do not doubt that.  We do not actually have the final addresses, but no doubt he did.

HAYNE J:   No.

MR CROUCHER:   The other aspect is that the nature of evidence of similarity seems in some of the cases to be treated in a different way from evidence of positive identification, whether it be visual or voice, in the sense that the safeguards and the concerns about admissibility that would apply to positive identification evidence do not seem to be applied as rigorously when it comes to similarity.  Yet that, with respect, seems to be counterintuitive.

The two problems in particular with such similarity evidence are that its probative value is much the weaker than positive identification evidence.  It can never amount to anything more than an opinion as to similarity.  Secondly, on the other hand, its propensity to be misused or the way in which it might be misused is a great likelihood, in my submission, because for example – and this is to be compared with visual identification – unlike in a case of visual identification where there are lots of checks you can make in cross‑examination because of the way in which humans think about faces – we look at people’s hair, the colour, the style, their eyes, the colour, the shape, the size of their nose, the shape of their nose, all of these sorts of things, their teeth and so on.  Usually the selection of the photograph or something of that nature is coupled with some sort of description which can be tested in some sort of detail.

The nature of voice identification on the other hand – and this is clear enough from the Victorian line of authorities as well – is far more limited.  Most people can say very little about a voice.  They are reduced to saying it was deep or it was like so and so, pretty much those sorts of comparisons, and the way in which it can be tested is far more limited than the way in which you can test a visual identification or purported identification.  That danger also transcends or converts itself into a risk of misuse because a jury is likely to think that if someone says, ‘That is the voice I heard”, or alternatively, “That is very like the voice I heard but I can’t say why”, it might be accepted.  You cannot say why because we are just not very good at describing these types of things, yet this evidence is so likely to be misused in those circumstances.

In this case, for example, one of the things that was relied on was a visceral reaction effectively by the two witnesses – they had a shudder when they heard this voice.  How can you test that?  It is hopeless, in my submission.  There should be all the more caution in receiving that sort of evidence, even though it is not capable of proving by itself in the same way that a positive identification, whether it be voice or visual, a case against an accused.  It is clear enough that in this case it was never left by itself as proving the case.  It was one piece in a circumstantial case.  Nevertheless, the safeguards or the threshold for admissibility should be much higher and one of the ways you can achieve that is by the way in the New South Wales authorities have set certain criterion.  That needs to be looked at, in my submission.

I diverted back to that point, but I was speaking also of the differences or the contention that Festa’s Case does not really address these points.  It is very important to remember that none of the three majority Judges who would have allowed the admission of the voice identification evidence of the witness whose names was James considered the question that was left open by Bulejcik and raised by the controversy between the New South Wales line and the Victorian line of cases.  For that reason, it is still to be decided.  It cannot be decided by inference.

Even if the Court is not of the view that, or is of the strong view that, the likelihood is that the Court would conclude that that Smith line of cases is not correct, and that clearly enough three Judges of this Court in Bulejcik expressed a preference – that is clear enough – for the view to the contrary, nevertheless, it is submitted that in the alternative the way in which the judge went about weighing up the prejudice and probative value in this case and the actual facts that he had to determine meant that he was compelled to exclude the evidence or, alternatively, that his method of reasoning must have been flawed.

This is demonstrated by the directions that he failed to give.  He failed to give any direction, when requested to do so, on the question of defective identifications bolstering each other.  He failed to give any direction when expressly asked to do so on the lack of reliability or the undermining of reliability of the two witnesses who said that they picked the relevant voice, albeit only as similar, to compare that with the exclusion to other witnesses.  It was asked for twice and was never given.  All that was given was the summary of evidence, contrary to the Domican view, that these things ought to be itemised and given the weight of judicial authority in a proper warning.  As well, nothing was said about how counsel cannot test something like a visceral reaction.

The fact that none of these directions were given, two of which were sought – the visceral reaction one was not, not surprisingly given the attitude of the judge on the application to exclude the evidence – demonstrates that he cannot have properly taken them into account, if at all, in considering the question of weighing up prejudice versus probative value.  So that, itself, should be a point that should be considered on appeal.

The directions – I have covered those three directions that I say ought to have been given in the discussion just gone.  One matter that is put against me by my learned friends is the application of the proviso.  They say that even if I am right about all of this, that the proviso would have been applied anyway.

HAYNE J:   It is not really a case of the proviso at this stage.  At this stage it is whether the interests of justice in the particular case require a grant of leave.  It may be that a somewhat different test is to be applied from the proviso.

MR CROUCHER:   Perhaps the same factors go to both tests then, your Honour, and they are these, that it was always relied on, this voice identification evidence, as one of the planks of the Crown case.  It occupied a large part of the judge’s directions.  It is hard to believe that the jury would have done anything but rely on that evidence importantly in their reasoning, so that if it was inadmissible or, alternatively, if the directions are flawed in some way and exception was taken to them, then it would not be a case for the application of the proviso.  Moreover, the Court of Appeal did not say anything about that.  Often, as your Honours would appreciate, the Court of Appeal will say, “Even if this evidence had been admissible, we would have applied the proviso”, or something like that.  Nothing said like that in this case.

HAYNE J:   But the weight of the case against the applicant was the delivery of the green bag, the DNA, other observations, the money, et cetera, stapled.  He had explanations for all of these matters.  Taken together, there were things which, in the hands of the uninformed third party, were liable to an unfortunate construction, were there not, Mr Croucher?

MR CROUCHER:   Yes, I understand what your Honour is saying.  But he gave evidence.  It is not like Festa’s Case where there was an

overwhelming case against him which could not be met in any way.  This was a case where, unlike Festa, he gave evidence.  He did have answers, as your Honour says.  Who knows how much a jury might have been impressed by the identification evidence.  Absent that evidence, you could never exclude the possibility that a verdict might have differed.  The jury asked a lot of questions in this case which indicated they took very seriously the defence that was being put.  They had a list of seven questions, asking about the time that certain things happened after his arrest, which showed clearly that the jury were thinking about, “Is this a recent invention or not, or is this the real thing?”

My learned friend says “a juror”.  It was the foreman speaking on behalf of the jury, as I understand it, your Honour.  In any event, those are the matters that I seek to raise, your Honour.

HAYNE J:   Thank you, Mr Croucher.  Mr Coghlan, we will not trouble you.

This case is not a suitable vehicle in which to resolve any question about the circumstances in which the evidence of a witness identifying a voice as the voice of an offender will be admissible.  Trial counsel contended that the evidence of voice identification which now is said to have been wrongly admitted was to be excluded at trial because it was “speculative” and because its prejudicial value exceeded its probative weight.

We are not persuaded that it is arguable that the admission of the disputed evidence over that objection was the wrong decision of any point of law, nor are we persuaded that it is arguable in the context of what otherwise was a strong circumstantial case against the applicant that the admission of the disputed evidence coupled with the directions given to the jury occasioned any miscarriage of justice in the case.  For these reasons, special leave is refused.

AT 2.38 PM THE MATTER WAS CONCLUDED