Kheir v The Queen - [2015] HCATrans 236

[2015] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M65 of 2015

B e t w e e n -
ALI KHEIR
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 12.58 PM

MR N. PAPAS, QC: May it please the Court, I appear for the applicant. (instructed by Access Law)

MR D.A. TRAPNELL, QC: May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

NETTLE J: Yes, Mr Papas – by the way, Mr Trapnell, do you oppose the extension of time application?

MR TRAPNELL: Yes, your Honour.

NETTLE J: Yes, very well, thank you. Yes, Mr Papas.

MR PAPAS: Maintain that but rely on material within the brief – sorry, within the paperwork to set out the factual circumstances. In the end, if it is a matter of sufficient importance or a case that has any, if we can use the vernacular “legs”, then, with respect, there is nothing in the material to suggest that the applicant himself has sat on his hands. He gave instructions in a timely manner. The lawyers unfortunately took their time and for various reasons and in my submission this would be – if there is a proper basis to consider that this is a matter of importance that justifies a grant then the application for leave to appeal out of time should fly, if it please your Honours, and unless you want me to take that any further that seems to be the principles.

NETTLE J: Let us get to the substance of it, Mr Papas.

MR PAPAS: Your Honours, it is an unusual case and I hesitate to suggest there is very little between the parties but when one looks at the reply of the respondent, when one looks at the judgment of the Court of Appeal and then one looks at the cases that deal with questions, both with section 78 but specifically with section 79 dealing with sections 78 and 79 of the Evidence Act, there is a case that will very soon need to go to the Full Court to be given leave to clarify whether Honeysett, which has reserved the question – I will not necessarily say that it has reserved the question but Honeysett has effectively confirmed that right now judges around the country are permitting ad hoc evidence to be given as section 79 evidence, relying on Butera and Menzies which are common law cases. I hope I have not butchered that point by going around it but your Honours will understand that ‑ ‑ ‑

NETTLE J: Yes, I think we get the thrust of it, Mr Papas.

MR PAPAS: So, in other words, it is there. Is this the right case? In my submission,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCATrans 236
Decision Date

CaseChat Overview and Summary

The applicant, Mr Kheir, sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal of Victoria. The dispute concerned the admissibility of evidence, specifically voice identification evidence, in Mr Kheir's trial. The Court of Appeal had upheld the admissibility of this evidence, and Mr Kheir sought to challenge that decision.

The primary legal issue before the High Court was whether the Court of Appeal erred in its determination that the voice identification evidence was admissible under either section 78 or section 79 of the *Evidence Act 2008* (Vic). This involved considering whether a police officer, through repeated listening to recordings, could qualify as an "ad hoc expert" for the purposes of section 79, or whether the evidence fell within the scope of section 78, which deals with the admissibility of evidence of familiarity with a person's voice. The applicant also contended that the Court of Appeal's reasoning created a risk of miscarriage of justice.

The applicant argued that the Court of Appeal had erred in finding section 78 applicable and that, more fundamentally, repeated listening to telephone calls could not constitute ad hoc expert evidence under section 79. The applicant's counsel submitted that the common law, as discussed in cases like *Butera* and *Menzies*, and as considered but not definitively resolved in *Honeysett v The Queen*, did not permit such evidence to be admitted under section 79. The respondent, conversely, argued that the Court of Appeal's analysis of section 78 was correct, asserting that the police officer's familiarity with the voice was akin to any other person who can identify a voice based on repeated exposure, and that therefore the evidence was admissible regardless of whether section 79 applied.

The High Court ultimately granted special leave to appeal, indicating that the case presented a significant question of law regarding the interpretation and application of sections 78 and 79 of the *Evidence Act 2008* (Vic) in the context of voice identification evidence, particularly concerning the concept of ad hoc expertise. The Court indicated it would hear arguments on the reformulated grounds of appeal.

Orders