Jospeh Godwin (a pseudonym)[1] v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0075

JOSPEH GODWIN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	PRIEST, TAYLOR and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF JUDGMENT:	10 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 225
JUDGMENT APPEALED FROM:	[2024] VCC 466 (Judge Murphy)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of expert opinion –Criminal analyst provided with call charge records for two mobile telephones opined that users of two telephones likely identical – Criminal analyst assumed cell towers had radius of 3 km – Whether criminal analyst had specialised knowledge based on experience – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of expert opinion – Interpreters interpreted telephone conversations from Igbo to English – Interpreters had no formal qualifications – Interpreters were native Igbo and English speakers – Whether interpreters had specialised knowledge based on experience – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave to appeal refused.

Evidence Act2008 ss 79, 137.

de la Espriella-Velasco v The Queen (2006) 31 WAR 291; Honeysett v The Queen (2014) 253 CLR 122; Moreno (a pseudonym) v The King [2023] VSCA 98; Moore (a pseudonym) v The King [2024] HCA 430.

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Counsel
Applicant:		Mr PJ Smallwood with Mr C Glerum
Respondent:		Ms K Breckweg with Ms E Addams
Solicitors
Applicant:	Milides Lawyers
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

PRIEST JA
TAYLOR JA
ORR JA:

The applicant faces trial in the County Court on a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth).
The central issue in the trial is whether the applicant was the user of the mobile phone number 0470628582 (the ‘582 number’). The 582 number was registered with Lycamobile in a false name. It was provided as the contact number for a consignment that was intercepted in China en route to Australia. Upon examination in China, the consignment was found to contain 19.776 kg of pure methylamphetamine concealed inside cartons of ‘body slimmer’ machines. Chinese authorities repackaged the goods without the illicit substances and the consignment was shipped to Sydney, where it was seized by the Australian Federal Police (‘AFP’). The police transported the consignment to Melbourne, where an inert substance was placed inside the cartons for the purpose of a controlled delivery.
In the lead up to and following the controlled delivery, the police intercepted various conversations on the 582 number, which were conducted in Igbo, a language spoken primarily in south eastern Nigeria. The prosecution seeks to adduce evidence of interpretations of 75 of these intercepted telephone calls that have been undertaken by two witnesses — Mr Patrick Utoh and Mr Paul Okoli.
The prosecution also seeks to adduce a report produced by Mr James Horne, an AFP analyst (the ‘Horne report’).
Using call charge records provided by telecommunications service providers, Mr Horne conducted a comparison analysis of use of the 582 number and use of a second mobile phone number, 0410552549 (the ‘549 number’) over a six week period surrounding the controlled delivery. The 549 number was registered with Vodafone in the applicant’s name and was found in a search of the applicant’s house.
In his report, Mr Horne opined that the consistency with which the two telephone numbers were used over the six week period in the vicinity of each other suggested that the user of the two phones was the same, or at least that the users the two phones were consistently in close proximity to each other. The prosecution seeks to rely on the Horne report to demonstrate that the applicant was the user of the 582 number, which was being used to coordinate the arrival and collection of the drugs that had been concealed in the consignment.
In a pre-trial application, the applicant argued that the Horne report was inadmissible because it was opinion evidence and Mr Horne lacked the qualifications to render an expert opinion about the locations of the two mobile phones. Further, the applicant submitted that even if the report was admissible as expert opinion evidence, it should be excluded under s 137 of the Evidence Act 2008.
The applicant also argued that the interpretations of the intercepted phone calls were inadmissible on the same basis, namely that they were opinion evidence and neither Mr Utoh nor Mr Okoli was qualified to render an expert opinion about the content of the intercepted communications. Further, it was submitted that even if the interpretations were admissible as expert opinion evidence, they should be excluded under s 137 of the Evidence Act.
In a ruling delivered on 12 April 2024,[2] the trial judge ruled that both categories of evidence were admissible and declined to exclude either category of evidence under s 137. Pursuant to certification given by the trial judge under s 295(3)(a) of the Criminal Procedure Act2009,[3] the applicant seeks leave to appeal against this ruling. There are three proposed grounds of appeal:
[2][2024] VCC 466 (‘Reasons’).
[3][2024] VCC 467.
1.The learned trial judge erred when admitting the evidence of Mr James Horne by:
(a)mistaking the facts relating [to] the qualifications of Mr James Horne; and
(b)determining that he was an expert witness within the meaning of s 79 of the Evidence Act2008 (Vic).
2.The learned trial judge erred by admitting the evidence of the telephone call interpretations by determining that each interpreter was an expert witness within the meaning of s 79 of the Evidence Act 2008 (Vic).
3.The learned trial judge misapplied IMM v The Queen 257 CLR 300 to the extent that he applied the automatic assumption of reliability when considering the extent of the unfair prejudice.
During the hearing, the third proposed ground of appeal was reformulated. The trial judge was said to have failed to take into account a relevant consideration when determining the applications to exclude both the Horne report and the evidence of the interpreters under s 137 of the Evidence Act, namely the danger of unfair prejudice to the applicant. The submission that the trial judge had misapplied IMM was abandoned.
For the following reasons, leave to appeal should be refused.

Standard of appellate review

It was common ground that the standard of appellate review that applied to grounds 1 and 2 was the ‘correctness standard’. This means we are to determine whether the trial judge was correct to admit the evidence of Mr Horne and the evidence of Mr Utoh and Mr Okoli under s 79 of the Evidence Act, while making due allowance for any advantages enjoyed by the trial judge in seeing the evidence given by the witnesses at the hearing of the pre-trial application.[4]
[4]Fox v Percy (2003) 214 CLR 118, 126–9 [25]–[31] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
Ground 3 was instead framed on the basis that the principles in House v The King[5] apply to an interlocutory appeal from a decision to decline to exclude evidence under s 137 of the Evidence Act, with the result that appellate intervention in relation to such a decision is limited to circumstances where the trial judge acted upon a wrong principle; allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust.[6]
[5](1936) 55 CLR 499; [1936] HCA 40.
[6](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
At the hearing, the parties acknowledged that the standard of appellate review in relation to ground 3 may be affected by the pending decision of the High Court in Moore (a pseudonym) v The King. The High Court had reserved its judgment in that appeal on 5 June 2024, some six weeks before the hearing of this application. On 14 August 2024, the High Court delivered judgment.[7] It held that if leave is granted to appeal an interlocutory decision concerning whether evidence should be excluded under s 137 of the Evidence Act, the standard of appellate review is the correctness standard.[8]
[7][2024] HCA 30.
[8][2024] HCA 30, [25] (Gageler CJ, Edelman, Steward, Gleeson, Beech-Jones JJ).
The High Court observed that the anterior question of whether to grant leave to appeal may nonetheless involve consideration of whether there is an error of principle or some other matter that satisfies the Court that the interests of justice warrant a grant of leave to appeal.[9] But if leave is granted, the Court is required to apply the standard of review dictated by the nature of the decision the subject of the appeal. Where the nature of the decision is to exclude, or not to exclude, evidence under s 137 of the Evidence Act, the correctness standard applies.[10]
[9]See Criminal Procedure Act 2009 s 297(1).
[10][2024] HCA 30, [25] (Gageler CJ, Edelman, Steward, Gleeson, Beech-Jones JJ).
Anticipating that this may be the view of the High Court, the respondent sought to defend the trial judge’s decision to decline to exclude the evidence of Mr Horne and the evidence of Mr Utoh and Mr Okoli under s 137 of the Evidence Act both on the basis that it was open to the judge to do so, and on the basis that it was correct for the judge to do so.
We proceed on the basis that the ‘correctness standard’ applies to each of the grounds of appeal.

Evidence of Mr Horne: Grounds 1 and 3

We will commence by addressing the proposed grounds of appeal insofar as they relate to the evidence of Mr Horne, before turning to the proposed grounds that relate to the evidence of Mr Utoh and Mr Okoli.

Horne report

Mr Horne is an intelligence manager for intelligence operations within the AFP. His statement, which was tendered at the hearing of the application, records that at the time his report was produced in 2016, he was a criminal analyst with the AFP. He had been a member of the AFP since 2013 and had worked as a criminal analyst since 2003. Mr Horne had completed an Advanced Diploma of Public Safety (Police Intelligence). He said in his statement that he had undertaken ‘a number of complex analyses involving the interpretation of call charge records’.
The Horne report, which was annexed to Mr Horne’s statement, contains analysis based on information and documentation provided to Mr Horne by the informant and other members of the AFP, including Vodafone call charge records for the 549 number and Telstra call charge records for the 582 number. Those call charge records include a general description of the location of the cell tower that corresponds to the location where the telephone call was initiated.
The report records that Mr Horne reviewed the information on the call charge records for all of the calls made on the two phones over the six week period. He identified that the majority of occasions on which the 549 number was used to make calls were in the vicinity of a cell tower in Keilor Downs South, while the majority of occasions on which the 582 number was used were in the vicinity of a cell tower in Sunshine North. The majority of night time communication was also in the vicinity of these two cell towers. Mr Horne said that this suggested that the user(s) of the two services spent the majority of their time within the radius of these towers. He compared the radius of these cell towers with the applicant’s residence in St Albans and identified that the applicant’s residence fell within the radius of both cell towers.
As to the radius of the cell towers, the report records that Mr Horne made the following ‘assumption’:
Given the proximity of cell tower locations within Metropolitan Melbourne I have used a proximity radius of 3 kilometres for each cell tower. I acknowledge that telecommunications services can operate anywhere within 1 metre and up to 12 kilometres from a cell tower.
In the report, Mr Horne identified multiple occasions when calls were made using the two services at or around the same time, or in and around the same location in Melbourne. He also identified occasions where the two services were used in ‘geographically unique locations’, such as interstate. Both numbers were used on the Gold Coast between 10 and 15 December 2014, in circumstances where the evidence established the applicant had travelled to the Gold Coast on 10 December 2014. Both numbers were also used in Adelaide on 29 December 2014, in circumstances where the evidence established the applicant had travelled to Adelaide on that date.
Mr Horne annexed to his report various maps showing, for the identified occasions when calls were made using the two services at or around the same time, or in and around the same location, the overlap between the ‘3 kilometres proximity radius of the Vodafone cell tower [associated with the 549 number] based on Metropolitan coverage’ and the ‘3 kilometres proximity radius of the Telstra cell tower [associated with the 582 number] based on Metropolitan coverage’.
Mr Horne concluded that during the analysis period, the user(s) of each service consistently made calls in the same overlapping vicinity of each other. At no time did the user(s) of the services make calls from distinctly different locations at or around the same time. At no time was one of the services used to call the other service.
Mr Horne’s key conclusion was as follows:
Based on the consistency with which 0410552549 and 0470628582 were in the vicinity of each other, without any distinctly contrasting locations, over an extended period and the travel to distinct geographical locations it would suggest that the user of 0410552549 was also the user of 0470628582 or that the user of 0470628582 was consistently in close proximity to the user of 0410552549.
Mr Horne was cross-examined at the pre-trial hearing. As to his qualifications and experience, he said that in addition to his Advanced Diploma in intelligence, he holds a Bachelor of Science and had completed a number of intelligence courses. Prior to working at the AFP, he had worked in intelligence with Queensland Police and Victoria Police. He accepted that he was not a geographic information systems expert, but said he had done hundreds of ‘these sort of analyses’ over the period he had been working, particularly in Queensland.
He explained that a criminal analyst has a number of functions, but in simple terms, his job involved assessing large volumes of data and making them understandable to assist and inform investigations. He agreed that there was no ‘special skill or expertise’ involved in making large volumes of data manageable, this being something that he had ‘learned over the years’.
Mr Horne accepted that he had not referred to the expert code of conduct in his report, although he was aware of it. He said he had been asked to analyse the two telephone numbers and come to an opinion in relation to whether they could be used by the same individual.
Mr Horne also accepted that it was necessary to have a real understanding of how phone towers and mobile phones work to be able to express that opinion. He agreed that the location of phone calls as recorded on the call charge records was not a pinpoint location, and said that it was a ‘representation of the tower that the telephone was operating off’. He agreed that on occasion different telephone carriers have different cell towers. When a mobile phone is used to make a call, it connects to the strongest available cell tower within its range, not necessarily the closest. Which cell tower a mobile phone connects to is also affected by variables such as the surrounding terrain, the extent to which the area is built up and whether the phone is operating on the 3G, 4G or 5G network.
Mr Horne was questioned about his assumption that the proximity radius for each of the cell towers was 3 km. He agreed that in urban areas the range of cell towers could potentially be up to 15 km. He said he had used 3 km because it was ‘in terms of the analysis an acceptable range that allows you to move between cell tower and cell tower ... as overlapping cell towers’. He agreed that data could be obtained as to the specific range of individual cell towers, but said he did not have that data. Nor did he have information about matters such as the number of antennas each cell tower had, whether the coverage at each of the towers was ‘360 degree’ coverage, the coordinates of the location of each cell tower, or the beam width for each tower. He accepted that information on these matters would have increased the reliability and accuracy of the phone records he relied on.
Mr Horne also accepted that telephone calls could move from one cell tower to another during the course of a call. He agreed that there were some gaps in the phone records he had used in his analysis, where the location of the cell tower was not provided, but said he had excluded those calls from his consideration.

Harris statement

Evidence was also called at the pre-trial hearing from Mr James Harris, a geographic information systems specialist employed by the AFP, who had produced a statement on which the prosecution no longer sought to rely. In that statement, which was tendered at the pre-trial hearing, Mr Harris recorded that he had reviewed Mr Horne’s report and regarded the conclusions within it to be valid.
Mr Harris gave evidence that he was the most senior expert in the AFP for geographic information systems. Mr Harris was shown email correspondence containing a request that had been made on his behalf for further information that was necessary for the purpose of providing a geospatial expert opinion, namely the coordinates, azimuth (or antenna direction) and beam width for the cell towers and an indication of the time zone of the call charge records. He said this information was necessary because AFP processes had changed since 2016 when the report was done. It was now standard policy to require such information to be included in call charge records when attempting a mapping comparison of mobile phones.
Mr Harris said that because that information had not been provided, he had been unable to provide his own expert report. He had instead reviewed Mr Horne’s report. He had concluded that Mr Horne’s conclusions were sound, on the basis that Mr Horne had matched the cell towers from the available text description of their location on the call charge records and mapped a radius around the towers. He said the systems had changed and the AFP now worked to much higher thresholds, with call charge records now including additional information that allowed greater precision about where a call may have been made or received.

Ruling

The trial judge rejected the applicant’s submission that Mr Horne did not have specialised knowledge based on training, study or experience, so that his opinion was not admissible as expert opinion evidence under s 79 of the Evidence Act.
The trial judge held that Mr Horne had specialised knowledge based on his ‘prior experience in dealing with this type of data over a considerable period in his role as a criminal analyst’.[11] In reaching his conclusion, Mr Horne ‘was drawing an inference after synthesising a significant volume of data’.[12] The trial judge said that ‘[t]he fact that another expert would not be prepared to opine on the basis of this raw material does not disqualify Mr Horne from providing his conclusions for the jury to synthesise or digest a large volume of evidence’.[13]
[11]Reasons, [61], [69].
[12]Reasons, [62].
[13]Reasons, [69].

The trial judge also rejected the applicant’s submission that in the event the Horne report was admissible as an expert opinion, it should be excluded under s 137 of the Evidence Act.
The trial judge noted that Mr Horne had accepted that there were limitations in the data upon which he had relied and that he had frankly conceded ‘deficiencies’ in his evidence. He was not satisfied that any such deficiencies, which could be exposed in cross-examination, meant that a jury would use Mr Horne’s evidence in a way that made its admission unfairly prejudicial.[14]
[14]Reasons, [56], [58], [74].
The trial judge also considered the possibility that a jury may be overly impressed by Mr Horne’s title and experience and therefore give his evidence undue weight (the so-called ‘white coat effect’). Ultimately, he concluded that any risk that the jury would misuse the evidence was minimal and was strongly outweighed by the probative value of the evidence.[15]

Submissions

[15]Reasons, [74]–[75].

By ground 1, the applicant submitted that the trial judge erred in ‘mistaking the facts’ relating to Mr Horne’s qualifications (ground 1(a)) and in finding that Mr Horne was an expert witness with specialised knowledge based on his experience (ground 1(b)).
The applicant emphasised that Mr Horne himself had acknowledged that he was not drawing on any special skillset. The trial judge had ‘simply accepted that, because the witness had (on his own account) conducted “hundreds” of analyses, he must be an expert in them’.
The applicant submitted that there was no evidence of any training that Mr Horne had undertaken to acquire foundational knowledge, nor any evidence that his conclusions in previous analyses were correct or had been relied upon in any material way. The ‘nebulous description’ of Mr Horne’s experience in using call charge records during undefined investigations did not render him an expert.
Mr Horne’s lack of expertise was also said to be evident from his assumption of a 3 km proximity radius for the cell towers, which was without factual foundation, arbitrary and unscientific. The assumption was not itself based on specialised knowledge. The evidence Mr Horne purported to give was evidence of a technical nature, routinely given by experts who understand the scientific underpinning and flaws in the technology. It was a type of evidence for which general experience alone was insufficient.
By ground 3, insofar as it relates to the evidence of Mr Horne, the applicant submitted that the trial judge had failed to consider the unfair prejudice to the applicant that flowed from the risk that the limitations to Mr Horne’s evidence would not be properly identified and the jury would attach improper weight to his evidence. Mr Horne had also not complied with the expert evidence practice note. In those circumstances, the trial judge should have refused to admit Mr Horne’s evidence under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the applicant.

Analysis

We commence with ground 1(b), which alleges error in the judge’s determination that Mr Horne was qualified to give evidence as an expert witness. In our view, the judge was correct to conclude that Mr Horne had specialised knowledge based on his experience as a criminal analyst who had conducted hundreds of analyses based on call charge records over many years.
Over the course of conducting those analyses, Mr Horne had developed specialised knowledge about various matters, including about how mobile phones connect to cell towers, the way cell towers operate and the signal range of cell towers. That specialised knowledge was not acquired by virtue of any formal training Mr Horne had undertaken or any particular professional qualification he had attained, but from his considerable practical experience.
As the High Court has explained:
‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines ‘knowledge’ as ‘acquaintance with facts, truths or principles, as from study or investigation’ and it is in this sense that it is used in s 79(1).[16]
[16]Honeysett v The Queen (2014) 253 CLR 122, 131 [23] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2014] HCA 29 (emphasis in original) (citations omitted).
Mr Horne’s knowledge of the types of matters we have referred to in [47] above was specialised knowledge, in the sense that it resulted from experience that was outside that of other people who have not by training, study or experience acquired an understanding of those matters.
Mr Horne’s concession in his evidence that there is no ‘special skill or expertise’ involved in making large volumes of data manageable, does not stand in the way of this conclusion. Having made that (limited) concession, Mr Horne went on to agree with the proposition that his report went further than making large volumes of data manageable, by providing his opinion about what that data means.
To the extent that the applicant sought to demonstrate that Mr Horne lacked specialised knowledge because his assumption of a 3 km radius for the range of the relevant cell towers was not itself based on any specialised knowledge, we reject that submission. Mr Horne made clear in his report that he was making an assumption of a 3 km radius for the cell towers ‘given the proximity of cell tower locations within Metropolitan Melbourne’. He described the 3 km radius as depicted in the maps annexed to his report as ‘based on Metropolitan coverage’.
These references make clear that the assumption of a 3 km radius was a product of Mr Horne’s knowledge about the density of cell towers within Metropolitan Melbourne, as opposed to less built-up locations. While the density of cell towers within Metropolitan Melbourne may be a matter that a member of the public might be prepared to speculate about, it is a matter that Mr Horne was not required to speculate about. Based on his considerable experience analysing call charge records, it is a matter about which he had acquired knowledge. That knowledge was therefore specialised knowledge.
Finally, the trial judge did not mistake the facts relating to Mr Horne’s qualifications, as the applicant asserts by proposed ground 1(a). He correctly set out Mr Horne’s academic qualifications, and referred to the intelligence courses he had completed over the course of his career.
Ground 1 must therefore fail.
We turn to ground 3. Ground 3 challenges the trial judge’s refusal to exclude both Mr Horne’s evidence and the evidence of Mr Utoh and Mr Okoli, under s 137 of the Evidence Act. At this stage, we focus only on that part of the challenge that concerns Mr Horne’s evidence.
We consider that the trial judge was correct to decline to exclude that evidence. The trial judge considered the potentially prejudicial effect of admitting the evidence of Mr Horne. He was satisfied, as are we, that any limitations in the evidence could be exposed in cross-examination and that the risk of unfair prejudice was therefore minimal.
The observations of this Court in Moreno (a pseudonym) v The King are apt:
The relevant prejudice with which s 137 is concerned is the illegitimate use of the evidence including for example giving it a weight that is disproportionate to its true value. The fact that the evidence may have flaws … is not itself a prejudice. …. Potency and prejudice should not be conflated. Where the flaws in the evidence will be obvious to the jury or can clearly be identified by the judge then they are unlikely to give rise to any significant prejudice and such prejudice as may exist will be capable of being addressed by direction.[17]
[17][2023] VSCA 98, [96] (Priest AP, Niall and Kaye JJA) (citations omitted).
Ground 3, insofar as it relates to the evidence of Mr Horne, must fail.

Evidence of interpretations: Grounds 2 and 3

Mr Utoh’s interpretations

Mr Utoh was born in Kaduna, a state in the north of Nigeria. Mr Utoh’s evidence was that in Nigeria, English is the language of instruction; and accordingly, he was educated in English and spoke English at school. At home, he spoke Igbo with his family. There was a large Igbo-speaking population in Kaduna, although it was not the primary language spoken there. When Mr Utoh was 18, he moved to Abia, a state in the east of Nigeria, which was, Mr Utoh said, predominantly Igbo-speaking.
In 2014, when he was 26, Mr Utoh moved to Australia. In Australia, Igbo and English are still the most common languages he uses to speak with his family and peers. Indeed, his native tongue is Igbo. He has spoken Igbo for his whole life.
Upon arriving in Australia, Mr Utoh learned of a job availability at Polaron Language Services (‘Polaron’), and he subsequently signed up. Mr Utoh had no formal training as an interpreter, and he was not provided any by Polaron. The only time he ever worked as an interpreter was for this case.
From 18 May 2015, Mr Utoh was engaged by the AFP, through Polaron, to interpret recordings of telephone conversations conducted in Igbo, which he transcribed into English.
On 1 June 2015, Mr Utoh made a statement, to which he annexed those transcriptions.
The transcriptions are of telephone conversations that were intercepted between 24 December 2014 and 12 January 2015. Broadly speaking, they tend to show that the user of the 582 number: was planning for, and involved in, the receipt of the consignment; knew that the consignment contained illegal drugs; was named ‘[Jospeh]’ (the first name of the applicant); was concerned not to have his personal details mentioned over the telephone for fear that someone was listening to the call; and had paid money to someone in China.
A critical part of a transcription, which appeared to identify the user of the 582 number as the applicant, was as follows:
CALL RECEIVER: Hello, Udo what is happening my brother?
CALLER: (Noise and talking in the background)
CALL RECEIVER: [A name not the applicant’s],
CALLER: Hello
CALL RECEIVER: [Jospeh Jospeh], hello! [Jospeh]!
CALLER: Don’t call out my name again
CALL RECEIVER: Hello
CALLER: Why are you calling my name?
CALL RECEIVER: The network is poor
CALLER: Don’t call my name again
At the pre-trial hearing, Mr Utoh was cross-examined on this passage. Mr Utoh was played a recording of the call from which the transcription was made. He was asked what he had just heard. He said:
‘[Jospeh]’. ‘[Jospeh]’. These are native Igbo names. ‘Hello [Jospeh]. Whoever is calling this name, don’t call this name again.’
The applicant’s counsel put to Mr Utoh that that interpretation differed from that which he had given in his statement. In his statement, Mr Utoh had written ‘Don’t call out my name again’, whereas in his viva voce evidence, Mr Utoh had said ‘Don’t call this name again’.
To this, Mr Utoh said that in Nigeria, it is common practice for someone to say ‘don’t call that name again’ or ‘don’t do this again’ to refer to themselves. He said different words could be used to convey the same meaning. Rather than interpreting word for word, he had provided context in his interpretation to enable a better understanding of what was said. He agreed, however, that the precise words said were ‘anybody calling this name should stop it’.
Before turning to Mr Okoli’s interpretations, we mention the following additional matters. Mr Utoh’s evidence was that he spoke two dialects of Igbo: Ngwa and Owerri. He said that there were many different dialects of Igbo, but that speakers of different dialects could still understand one another. He could not say how many dialects of Igbo there were. Then, to illustrate, it appears, the tonal nature of the language, counsel asked Mr Utoh to translate four English words into Igbo: ‘cry’, ‘egg’, ‘cloth’ and ‘sew’. Mr Utoh translated each of these as ‘akwa’, but said the tone he used would change for each word. Finally, when asked how many letters were in the Igbo alphabet, Mr Okoli said he had no ‘formal knowledge’ of that.

Mr Okoli’s interpretations

Mr Okoli was born in Lagos, a city in Nigeria. He said that Lagos did not have a native language, but that there were Igbo speakers there. He grew up speaking Igbo, although he had had no formal education in the language. He completed his schooling, and a two-year nursing diploma, in Nigeria, both of which were conducted in English.
Mr Okoli moved to Australia in 2014, when he was 25. He immediately commenced studying a university degree to be a registered nurse. At the same time, he commenced working part-time for Polaron, to earn money for his living expenses. He worked about two to three days a week. He only ever interpreted from Igbo to English. Like Mr Utoh, Mr Okoli was not required to have, and received, no formal training in his employment by Polaron. He understood that he was employed because he was a native speaker in both Igbo and English.
From 18 May 2015, Mr Okoli was engaged by the AFP, through Polaron, to interpret recordings of telephone conversations conducted in Igbo, which he transcribed into English.
On 1 June 2015, Mr Okoli made a statement, to which he annexed those transcriptions.
The transcribed telephone conversations were intercepted between 10 and 13 January 2015. Broadly speaking, they tend to show that the user of the 582 number: was planning for, and involved in, the receipt of the consignment; knew that the consignment contained illegal drugs; wanted to ensure that no-one was following the consignment; wanted to ensure that there were 25 units of something in the consignment (the prosecution contends that there were about 25 kg gross of methylamphetamine in the consignment); and wanted to evade detection by the police.
Mr Okoli was cross-examined at the pre-trial hearing. He was asked to explain his understanding of his obligations as an interpreter. Mr Okoli said he was to translate from Igbo to English, ‘word for word’. Counsel asked Mr Okoli whether he was required to ‘add your own flavour or anything along those lines’. Mr Okoli said no.
Counsel then asked Mr Okoli what dialect of Igbo he spoke. Mr Okoli said there was only one dialect of Igbo. He said pronunciations could differ depending on region, akin to differing accents amongst speakers of English. He considered it confusing to refer to those differences as ‘dialects’, because ‘Igbo itself is a dialect’. Mr Okoli did not agree that speakers of Igbo from different locations would use different words to refer to the same object. Like Mr Utoh, Mr Okoli could not say how many letters were in the Igbo alphabet. He also could not say how many ‘known tones’ (as counsel put it) there were in Igbo.
Counsel also attempted to put the four English words he had put to Mr Utoh to Mr Okoli, to translate into Igbo. That exchange transpired as follows:
What is the Igbo word for ‘egg’?---Akwa.
All right. What is the Igbo word for cloth?---For what?
For cloth?---It depends on, um, what sort of cloth.
Well let’s say — the word cloth. Does that translate to Igbo?---Yeah. Um. We could — it depends, like, Igbo could say effie, so---
Is akwa another word for cloth?---Mmm?
Is the word that you said moments ago?---M’mm.
Akwa?---Akwa.
If I was to change the tone and say akwa, does that mean cloth?---Akwa. Akwa.
Akwa?---Akwa.
Akwa? It’s not a language education for me so that’s fine?---So if you say akwa, now because of the pronunciation then that could mean cloth.
All right?---Akwas. Then akwa is egg.
All right. How do we say the word cry, as in tears, cry?---Um. Ibapa.
All right. Is there another way of saying cry?---Not that I---
No?---No.
What about akwa? Could that mean cry? My tone might be wrong, I apologise.
[PROSECUTOR]: He doesn’t know what you’re saying.
[DEFENCE COUNSEL]: No, if you don’t — if what I’m saying doesn’t make sense, please tell me?---Yeah, I can — yeah, I can’t work out what you’re saying.
No, that’s all right. Do you know the word for sew, as in to sew fabric? Sew?
---Um. To sew. Um. No, no.
Finally, in re-examination, the prosecutor asked Mr Okoli why he had appeared puzzled when asked, in cross-examination, how many letters there were in Igbo. Mr Okoli said:
Yeah, the reason is, um, you know, English language you’re sort of, like, taught the basics from ground zero to the very top. But with [Igbo] language, predominantly, you learn from home, from talking to people. So, you generally don’t have to go to school for that, yeah, and except you take special interest in learning, you know, the [Igbo] language, like, academically and all of what you want to know. Because back in Nigeria, is actually — you are not taught in [Igbo] anything, like, even if you go to school, so it’s basically — the (indistinct) is English.
[PROSECUTOR:] So, it’s not formalised and structured in the same way?
---No, no.

Ruling

The trial judge rejected the applicant’s submission that Mr Utoh and Mr Okoli did not have specialised knowledge based on training, study or experience, so that their opinions about the content of the intercepted telephone calls were not admissible as expert opinion evidence under s 79 of the Evidence Act.
After setting out the ways in which the calls interpreted by Mr Utoh and Mr Okoli were sought to be relied upon by the prosecution,[18] the trial judge summarised the backgrounds of the two interpreters. In respect of Mr Utoh, the trial judge summarised the education he had received in English, the experience he had in speaking Igbo and English, and the various limitations in his knowledge of Igbo which the applicant’s counsel had pointed to in cross-examination, to which we have referred above.[19]
[18]Reasons, [2]–[3], [5]–[6].
[19]Reasons, [7]–[10].
The trial judge noted that the applicant’s counsel, in seeking to have the interpretations excluded, had focused upon what he submitted were inadequacies in the interpretation of the telephone call in which the applicant appeared to have been identified by name (excerpted at [65] above).[20] The trial judge noted that although Mr Utoh had in his statement transcribed the words ‘don’t call my name again’, in cross-examination, he agreed that the words spoken were in fact ‘anybody calling this name should stop it’. He observed that Mr Utoh did not accept that the interpretation he gave in his statement was incorrect. Rather, he said ‘it’s a thing in … Nigeria where you could say “Don’t call that name again” … but referring to yourself’.[21]
[20]Reasons, [11]–[12].
[21]Reasons, [13], [15]–[16].
The trial judge then summarised the submissions made by the applicant’s counsel. In brief compass, they were that: the prosecutor bore the onus of showing that Mr Utoh and Mr Okoli had the requisite specialised knowledge based on their training, study or experience; neither Mr Utoh nor Mr Okoli had experience, qualifications, accreditation or training in interpreting; and the fact that Mr Utoh and Mr Okoli had grown up speaking Igbo did not endow them with sufficient experience to justify the admission of their interpretations.[22]
[22]Reasons, [22]–[23].
The trial judge noted that the prosecution relied on a decision of the Supreme Court of Western Australia in R v Okoli.[23] In that case, an interpreter had been educated in both Igbo and English, and had studied in English at a tertiary level. He had provided interpretation services on a number of occasions, and also tendered references. Hall J, noting that a witness could be an expert ‘by virtue of nothing more than his or her practical experience in a given field’, considered that interpretation evidence given by the interpreter was admissible — notwithstanding that he did not hold an accreditation with the National Accreditation Authority for Translators and Interpreters (‘NAATI’).[24]
[23][2018] WASC 116 (‘Okoli’).
[24]Reasons, [24]–[28], quoting Okoli [2018] WASC 116, [12].

While there were differences between the experience of Mr Utoh and Mr Okoli on the one hand, and the interpreter in Okoli on the other, the trial judge said there was a ‘similarity’ in that each of them was brought up as an Igbo speaker and educated to a tertiary level in English before moving to Australia. The admissibility of the evidence in Okoli therefore supported the conclusion that Mr Utoh and Mr Okoli were qualified by their experience to give evidence of their interpretation of the intercepted conversations.[25]
[25]Reasons, [29]–[30].
The trial judge then considered whether the fact that an interpretation was the product of the first time a person had engaged in the task of interpreting leads to the conclusion that they are not qualified to do so. He concluded that it did not. In this regard, the trial judge referred to R v Yildiz, for the proposition that whether a witness was qualified to give the relevant evidence was ‘always relative to the matter at hand’, and a matter for the court to determine.[26] The trial judge also referred to the Scottish decision of Hopes v HM Advocate, where a stenographer, who had not previously undertaken the task of listening to and deciphering tape recordings, was held to have acquired an expertise by repeatedly playing, and attempting to decipher, a tape recording in which the speakers spoke in a heavy Glasgow accent.[27]
[26]Reasons, [31]–[34], quoting (1983) 11 A Crim R 115, 124 (Murray J, Southwell J agreeing at 126).
[27]Reasons, [35], citing (1960) JC 104.
‘Applying these cases’, the trial judge said, the knowledge and experience that Mr Utoh and Mr Okoli had gained in their lives qualified them to give opinion evidence as experts. And the interpretations they prepared relied upon that knowledge and experience.[28]
[28]Reasons, [36]-[37].
The trial judge also referred to a passage from a decision of the Court of Appeal of Western Australia in de la Espriella-Velasco v The Queen, which concerned the nature of the task undertaken by interpreters. It is useful to set this passage out:
[T]he interpreter must express, in the target language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the source language. The individual aspects of this expression of what is required, are important. The reference to the ‘idea or concept’ being expressed acknowledges that the process of interpretation is not merely the substitution of a word in one language for an equivalent word in the other and that there is often a lack of semantic equivalence. That, and social or cultural differences may mean that even the ‘idea or concept’ itself has no equivalent in both societies. … [L]anguage interpretation deals with units or ‘bundles’ of meanings, not words, or what is described as ‘literal’ interpretation. ‘The circumstances’ obviously include the pressures of time and lack of opportunity for the interpreter to consider, determine and convey precise meaning. The requirement that the idea or concept be interpreted as it has been expressed in the source language, includes the notion of appropriate register, or conservation of meaning. That is to say, the form and level of expression of what the interpreter says in the target language should reflect the form and expression used by the witness in the source language.[29]
[29](2006) 31 WAR 291, 313 [75] (Roberts-Smith JA, Pullin JA agreeing at 333–4 [164]); [2006] WASCA 31 (‘de la Espriella-Velasco’).
The trial judge said that both Mr Utoh and Mr Okoli had given evidence that they were attempting to convey the idea or context of the Igbo that was used. (In fact, only Mr Utoh had given such evidence. Mr Okoli’s evidence was that he interpreted ‘word for word’, without ‘add[ing] … flavour’.) The important consideration, the judge said, was that they were attempting to contextualise their interpretations, rather than interpreting what was said word for word.[30]
[30]Reasons, [40].
The trial judge rejected the applicant’s submission that the evidence should be excluded under s 137 of the Evidence Act because of a danger of unfair prejudice to the applicant that was said to arise from the addition of ‘context’ to the interpretations.[31] The evidence had strong probative value, including because the applicant’s name had been mentioned in one of the calls. The attempts by the two witnesses to give context to the words that they heard in the Igbo language was a matter that could be fully exposed in cross-examination. It ‘did not give rise to any unfair prejudice such that the evidence would be over weighed or misused by the jury’.[32]

Submissions

[31]Reasons, [41], [44].

[32]Reasons, [41], [45]–[46].

In support of ground 2, the applicant emphasised that neither Mr Utoh or Mr Okoli had completed any formal study in Igbo and nor did they have experience or training in interpretation. He said that ‘there must be a point’ at which, despite the suggested experience of a witness in more than one language, the lack of accreditation, training, experience in the task required in court, together with demonstrated limitations in the witness’s knowledge and command of at least one of the relevant languages, will mean that the witness is not sufficiently qualified to perform the task required of an interpreter in any fairly conducted trial.
In addition to Mr Utoh and Mr Okoli’s lack of formal qualifications, the applicant referred to Mr Okoli’s inability in cross-examination to identify the Igbo word for ‘sew’. Further, while Mr Okoli had said that there were no ‘dialects’ of Igbo, Mr Utoh had said that he spoke the Ngwa and Owerri dialects at home.
The applicant submitted that the case of Okoli could be distinguished from the present case because the interpreter in that case had extensive experience in Igbo interpreting work for various law enforcement agencies, was ‘recognised’ by NAATI as an Igbo interpreter and had demonstrated evident skill in Igbo and English during his examination. In contrast, Mr Utoh and Mr Igbo were ‘effectively taken from the street’ and asked to listen to recordings, with no validation (other than their word) that they were capable of doing so.
In support of ground 3, the applicant submitted that a jury depends upon the quality of interpretations. This was not a type of evidence where the jury might be able to draw its own conclusions. In circumstances where there is no evidence of the competence of the witnesses to interpret, the admission of the evidence of the transcriptions occasioned unfair prejudice to the applicant.

Analysis

We commence with ground 2, which alleges error in the judge’s determination that Mr Utoh and Mr Okoli are each expert witnesses, qualified to interpret the intercepted telephone conversations from Igbo to English.
As we have explained above in addressing ground 1 in relation to the evidence of Mr Horne, it is not necessary for the specialised knowledge of an expert witness to be gained as a result of formal qualifications or study. Specialised knowledge can be acquired as a result of a person’s experience, including their experience in speaking both their native tongue and the language in which they have been educated.
The telephone conversations that were the subject of the interpretations appear to have been conducted using basic, conversational language. Both Mr Utoh and Mr Okoli, on their evidence, grew up speaking Igbo. They were also formally educated in English. They are native speakers of both languages. Although Mr Utoh had not, until the present case, completed interpretation tasks for Polaron, his evidence was that he continued to speak in Igbo to his family and peers. Mr Okoli, meanwhile, had, for about a year, worked consistently as a translator and interpreter for Polaron, for about two to three days a week. In our view, the experience of Mr Utoh and Mr Okoli equipped them to provide interpretations of the intercepted telephone conversations. They had hardly been ‘taken from the street’ to undertake this task — they had been formally engaged by the AFP to undertake their task as employees of Polaron.
That Mr Utoh and Mr Okoli may not have been able to say how many ‘letters’ there were in the Igbo ‘alphabet’, or how many ‘known tones’ (as counsel put it) there were in the Igbo language, is of little moment. Their task, as native speakers in both Igbo and English, who conversed in both languages regularly, was to listen to conversations in Igbo and interpret them into English. The task did not require knowledge of technical aspects of the language. Indeed, Mr Okoli’s evidence was that Igbo was predominantly learned from talking to people. To suggest that Mr Utoh and Mr Okoli’s inability to say how many letters there were in the Igbo alphabet or how many ‘known tones’ there were meant that they were incompetent in their own native tongue was to draw undue assumptions about how the Igbo language is typically learned and used. It was also to demand a level of knowledge on the part of Mr Utoh and Mr Okoli beyond that necessary to perform the task to which their expertise was to be applied.
The same is true of the complaint, effectively, that Mr Okoli did not know of the existence of various dialects in Igbo. To the points made above we would add that Mr Okoli nevertheless recognised that speakers of Igbo from different regions might pronounce words differently — albeit they would not use different words. He said, for example, that the word ‘Ibo’ in one dialect might be pronounced ‘Abor’ in another. In other words, like Mr Utoh, Mr Okoli recognised the existence of regional differences in the language, notwithstanding that he eschewed the terminology of ‘dialect’ to describe those differences.
For completeness, we do not regard Mr Okoli’s inability to identify the Igbo word for ‘sew’ as of any moment. The question was put to Mr Okoli in the context of an exchange which was evidently confusing for him, in which counsel had unsuccessfully sought to pronounce a word in Igbo. In that context, Mr Okoli’s inability to interpret one word, where the evidence otherwise established that he was a native speaker of Igbo and English, did not deprive him of the knowledge necessary to interpret the telephone conversations.
Ground 2 must therefore fail.
We turn to the remainder of ground 3, which challenges the trial judge’s refusal to exclude the evidence of Mr Utoh and Mr Okoli under s 137 of the Evidence Act.
It is clear from the trial judge’s reasons that he considered the applicant’s submission that admitting the evidence of Mr Utoh and Mr Okoli gave rise to a risk of unfair prejudice to the applicant. We agree with the trial judge that any weaknesses in the interpretations can be exposed in cross-examination. The same can be said for any more general lack of competence on the part of Mr Utoh and Mr Okoli to conduct the task of interpreting the intercepted calls. The extent to which either witness has included ‘context’ in their interpretations can also be drawn out in cross-examination.
We do not consider that the inclusion of ‘context’ in the interpretations necessarily gives rise to an unfair risk of prejudice to the applicant. We adopt the observations made in de la Espriella-Velasco: that interpretation involves the conversion of ‘units’ or ‘bundles’ of meanings as expressed in one language, so that they may be understood by a listener in another language.[33] Clearly, words and phrases may carry meanings — meanings that may differ from their literal denotations — which may only be properly understood with an appreciation of the culture and context in which they are spoken, which includes how they are commonly used.
[33](2006) 31 WAR 291, 313 [75] (Roberts-Smith JA, Pullin JA agreeing at 333–4 [164]); [2006] WASCA 31.
We agree with the trial judge that the evidence of Mr Utoh and Mr Okoli was of very significant probative value. Any danger of unfair prejudice to the applicant does not outweigh its significant probative value. The trial judge’s decision to decline to exclude the evidence was correct.
The remainder of ground 3, which relates to the evidence of Mr Utoh and Mr Okoli, must fail.

Conclusion

The proposed grounds are without merit. It is not in the interests of justice to grant leave to appeal. Leave to appeal will be refused.

[2024] VSCA 225

10 October 2024