Kheir v The Queen
[2014] VSCA 200
•5 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0170 | |
| ALI KHEIR | Applicant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | MAXWELL P, REDLICH and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 June 2014 | |
DATE OF JUDGMENT: | 5 September 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 200 | |
JUDGMENT APPEALED FROM: | R v Kheir (Unreported, County Court of Victoria, Judge Chettle, Conviction 7 June 2013, Sentence 27 June 2013) | |
---
CRIMINAL LAW – Conviction – Evidence – Opinion evidence – Lay opinion – Expert evidence – Ad hoc expert – Specialised knowledge based on training, study or experience – Basis rule – Identification – Identification evidence – Voice identification – Jury directions – Conduct of trial – Application for leave to appeal against conviction refused – Evidence Act 2008, ss 76, 78 and 79.
CRIMINAL LAW – Sentence – Blackmail – Aggravated burglary – Armed robbery – Recklessly causing injury – Whether sentences manifestly excessive – Totality – Whether orders for cumulation excessive – Application for leave to appeal against sentence refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Dickinson QC with Mr J J Lavery | C D Traill Lawyers |
| For the Respondent | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
BEACH JA:
Introduction
After a 17 day trial, the applicant was found guilty by a jury of one charge of aggravated burglary, two charges of armed robbery, one charge of recklessly causing injury and one charge of blackmail. Following a plea, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary 25y 6y Base 2 Armed robbery 25y 4y 1y 4 Recklessly causing injury 10y 1y 5 Armed robbery 25y 3y 6m 12 Blackmail 4y 2y Total Effective Sentence: 9y 6m Non-Parole Period: 7y
The applicant was tried with two co-accused, George Maghrabi and Ramsen Joseph, each of whom was convicted of one charge of aggravated burglary, two charges of armed robbery, one charge of recklessly causing injury, one charge of kidnapping, one charge of intentionally causing serious injury and one charge of blackmail. Maghrabi was sentenced to a total effective sentence of 11 years’ imprisonment with a non-parole period of seven years and six months, and Joseph to a total effective sentence of 14 years and six months’ imprisonment with a non-parole period of 11 years.
The applicant seeks leave to appeal against conviction and sentence. The proposed grounds in relation to the applicant’s conviction are as follows:
1The trial miscarried in circumstances where the prosecution led hearsay evidence as to the identity of the applicant in that they led evidence of his name from the witness Memisevic.
2Alternatively, the trial judge erred in failing to give any direction to the jury as to what use they could or could not make of the evidence of that applicant’s identity.
4The trial miscarried in circumstances where the prosecution asserted that various intercepted telephone conversations and call charge records could be attributed to the applicant by virtue of a telephone being said to be found in his possession in circumstances that did not establish that the telephone was in fact used to make the intercepted calls.
5As an alternative to ground 4, the trial judge erred in failing to correctly charge the jury in respect of the evidence that a telephone found at the applicant’s address had no apparent IMEI[1] number marked on it at the stage when it was produced and tendered at the trial.
6The trial miscarried in circumstances where the prosecution led evidence as to the IMEI number that had been located on the telephone said to be in the applicant’s possession, and evidence of the IMEI number of a telephone able to be related to the intercepted telephone conversations and the call charge records, and the trial judge advanced a hypothesis for the discrepancy which had not been established by evidence from the prosecution.
8The trial judge erred in permitting the informant, Bray, to give evidence as to his identification of the applicant’s voice in various intercepted telephone conversations.
9The trial judge’s directions in respect of the informant Bray’s evidence of voice identification failed to adequately direct the jury as to the evidence said to be capable of supporting the opinion of the witness being (a) that he adequately and sufficiently had the opportunity to qualify himself as an expert in identification of the applicant’s voice and (b) that he applied that expertise to the relevant telephone intercepts.[2]
[1]International Mobile Equipment Identity.
[2]Grounds 3 and 7 were abandoned by the applicant in his revised written case.
The proposed grounds in respect of the applicant’s application for leave to appeal against sentence are as follows:
1The sentence imposed on the charge of blackmail is excessive in that the sentencing judge sentenced the applicant on the basis that his involvement was protracted and took place over a number of days.
2The sentences on the individual charges were manifestly excessive.
3The orders for cumulation did not give sufficient weight to the principles of totality.
Particulars
(i) The effect of the orders for cumulation on charges 2 and 5 on the base sentence in Charge 1 results in a sentence of 7 years and 6 months for events which were all closely connected.
(ii) The order cumulating two years of the sentence on charge 12 resulted in a disproportionately heavy sentence.
For reasons which follow, we would refuse both applications.
The prosecution case
The prosecution case against the applicant may be summarised as follows. On 17 January 2011, Ly Phi Ho Phu[3] was staying the night at the home of his friend, Osman Memisevic — a garage attached to a house in St Albans. At about 1.30 to 2.00am, five men entered the garage, one of them holding a sawn-off shotgun (charge 1 — aggravated burglary). The men were alleged to be Maghrabi, Ramsen Joseph, the applicant, an unknown man and another man alleged by the Crown to be Michael McDonald. One of the men, identified by Mr Memisevic and Mr Phu as the applicant, said ‘That’s them. Go for it boys’ and left the premises.
[3]Also referred to as Mr Ho in the applicant’s written case and some of the trial transcript.
The remaining men robbed Mr Memisevic (charge 2 – armed robbery) and Mr Phu (charge 5 — armed robbery) and forced Mr Memisevic to open his safe. Mr Memisevic was beaten and struck with an iron bar during the course of the robbery. He suffered pain, bruising and swelling (charge 4 — recklessly cause injury). Mr Phu was taken from the house by the remaining three men (Joseph, Maghrabi and allegedly McDonald) and over the course of the next three days was moved to a number of motels. Mr Phu was told he would be released if he provided $100,000 to the men. Mr Phu called his cousin and his uncle in an attempt to obtain the money (charge 12 — blackmail). During this time the applicant was said to be in contact with the men who were with Mr Phu. Telephone intercepts of telephone calls alleged to relate to these matters were obtained. Mr Phu was released on 19 January 2011 and went to his uncle’s house where police were waiting.
The prosecution case was that the applicant was one of the men who entered Mr Memisevic’s garage and was identified by Mr Memisevic. Mr Memisevic gave evidence that he knew the applicant, having met him before. The applicant and his co-offenders were alleged to have been acting in concert in relation to the offending at the garage, and therefore the prosecution case was that the applicant was criminally responsible for offences that occurred after he left. The telephone calls between a telephone found at the applicant’s house and the other participants, while Mr Phu was being held prisoner, meant it was possible for the jury to infer the applicant was a party to the blackmail.
The applicant, when arrested, was found with foreign currency — namely US Dollars and Vietnamese Dong. This currency matched the description of money Mr Phu claimed was taken from his wallet. The prosecution also relied upon intercepted telephone calls as evidence that the applicant was in contact with his co-offenders while Mr Phu was being held, and was aware of, and complicit in, the offending. The prosecution further relied on identification evidence from the informant, Sergeant Bray (who had listened to all the telephone intercepts). Sergeant Bray identified the applicant’s voice as being one he heard during the intercept calls.
The applicant’s case at trial
The applicant’s case at trial was that he was not involved in any offending against the victims and had not made any of the alleged telephone calls. His case was that he was wrongly identified by Mr Memisevic as having been at the garage, and then wrongly identified by the informant as having participated in the relevant telephone intercept calls.
The main issue at trial
The main issue for the jury, so far as the applicant was concerned, was identification: that is, first, whether the applicant was correctly identified as being present at the break-in at Mr Memisevic’s garage; and secondly, whether the applicant was the person on the telephone intercepts said to be discussing the plans to blackmail Mr Phu’s relatives.
The evidence at trial
In examination in chief, Mr Memisevic gave evidence that, on 16 January 2011, he went to sleep at around midnight in his workshop. A friend of his, whom he knew as Ho (Mr Phu), was asleep on the couch. At 2.30am Mr Memisevic woke up to the rattling sounds of a sliding door being opened. He got out of bed and heard someone say ‘Where’s Oz?’ or ‘Is Oz here?’. Mr Memisevic recognised the voice as belonging to someone he considered to be a friend, Ali Kheir.
Mr Memisevic walked into the room and saw five or six men standing in his garage. He recognised one of these men as Ali Kheir. He also recognised Michael McDonald whom he had met two days earlier when he was with Ali Kheir. He knew Michael McDonald as ‘Mick’. He did not know any of the other people. Mr Memisevic noticed that one of the men standing beside Ali was carrying a shotgun. Mr Memisevic remembered Ali saying something like ‘That’s them. Go for it boys.’ After he said that, Ali Kheir turned around and left immediately. One of the other men followed him out.
McDonald hit Mr Memisevic with a crowbar. One of the other men then told Mr Memisevic to open the safe. Mr Memisevic failed twice to open the safe and was hit on the head with the shotgun. He opened the safe on his third attempt. The men then attacked Mr Memisevic. Later Mr Memisevic went into the main house with McDonald and gave him his wallet, which had $1,210 in it. When they got back to the garage, Mr Memisevic saw Mr Phu, who looked grey and afraid. His hands were tied with duct tape.
The men took items from the garage, including a laptop, a guitar in a soft black guitar case, photographic and video equipment and old mobile phones. McDonald gave instructions that Mr Phu was going to the boot of a car and that Mr Memisevic was to follow instructions very carefully and precisely.
In cross-examination Mr Memisevic conceded that he never knew Ali’s real surname. He said he had known the ‘Ali’ who had been at his house on 17 January 2011 for about four weeks. He agreed he thought Ali’s name was Ali Al Kheir. He denied that that name had been mentioned to him by people who came to his house on the morning of 17 January 2011. Mr Memisevic agreed he had said he heard the surname mentioned by people who came and visited him after the incident. He thought that he had also heard the surname before the incident.
Mr Memisevic agreed that Ali was an acquaintance. He just knew him as ‘Ali’. He thought he knew his surname but would have just referred to him as ‘Ali’. He had Ali’s telephone number, but did not call him after the offending. In re-examination Mr Memisevic agreed that he had met Ali Kheir about a month before the incident. He had seen him about five or six times in that month. He had been introduced as ‘Ali’.
Mr Phu gave evidence of being held over three days by Joseph, Maghrabi and McDonald. Mr Phu was extensively cross-examined, and was later recalled at the request of the applicant’s counsel.
Mr Phu gave evidence that $2,000 was stolen from his wallet during the incident. He also identified foreign currency, including $1, $2 and $5 notes in US currency and some Vietnamese currency. Mr Phu said he recognised one of the men from the garage, a person called ‘Ali’ whom he had met once before. Ali was the first person to enter the garage. He was tall, slim and bald. Ali was older than himself and Mr Memisevic.
When recalled, Mr Phu said in cross-examination that he had met the fifth man involved in the incident once before, at Mr Memisevic’s garage at the same time he had met ‘Ali’. He thought the fifth man might have been Ali’s son. He could not pick the fifth man from a photoboard.
Detective Senior Constable John Bakas took the applicant into custody on 17 February 2011 at about 4.35am. The applicant’s wallet was searched and foreign currency found inside. DSC Bakas checked the telephone found at the applicant’s residence (Exhibit R) and recorded the IMEI number of 351876014845133[4] as being applicable to that phone. (For ease of reference we will refer to this exhibit as ‘the R phone’). The evidence was that the IMEI number (a number unique to each telephone) was usually to be found by opening the back of the telephone and removing the battery.
[4]Although the transcript records DSC Bakas as giving evidence that the number he recorded was 351776014745133, the original post-it sticker (on which the number was written by DSC Bakas), and which was provided to the jury and attached to Exhibit R, was 351876014845133.
Senior Sergeant Pixie Furhmeister was part of the search at the applicant’s residence. She had found the R phone in a handbag, with identification belonging to a Ms Kulinski. In cross-examination, Senior Sergeant Furhmeister agreed that there were six people at that address when she was there. One of the people at the address identified herself as Rachel Kulinski.
Detective Senior Constable Tomislav Ivanovski took a brief statement from Mr Phu on 19 January 2011. Mr Phu attempted to give descriptions of his attackers, but DSC Ivanovski did not believe Mr Phu mentioned that he knew or had previously met any of his attackers.
Sergeant Bray was the informant in the case. He gave evidence that he listened to the telephone calls obtained through a telephone intercept warrant. He had spent approximately four weeks, in eight hour shifts, listening to the over 1,000 calls. He had become quite familiar with the voices on the intercepts and, as a result, believed he could identify the various speakers.
The telephone number ending in 006 was the number for the R phone. The informant identified the voice on calls made to and from that telephone as being the applicant’s voice.
The identification of the applicant by Memisevic
In proposed grounds 1 and 2, the applicant makes complaint about the evidence given by Mr Memisevic, that he recognised Ali Kheir as one of the men in his garage in the early hours of 17 January 2011. It had been expected that Mr Memisevic would give evidence of having recognised a man he had met before, named Ali, but whose surname he did not then know. From the evidence, it appears that at some time after the relevant events, Mr Memisevic was told by someone that the name of the person he recognised as Ali was in fact Ali Kheir.
In argument, it was suggested to counsel for the applicant that, since Mr Memisevic had identified the applicant as one of the individuals in his garage in the early hours of 17 January 2011, and had recognised him at the time as Ali, it was of no moment that he named him as ‘Ali Kheir’ in evidence in chief (rather than simply as a man named Ali whom he had met before). In response, counsel submitted that the applicant’s real complaint under grounds 1 and 2 was that Mr Memisevic never in fact identified the applicant, during the course of the trial, as the Ali he had recognised in his garage on 17 January 2011.
There is no substance to this complaint. An examination of the whole of the transcript confirms that the trial below was conducted on the basis that the applicant was the person Mr Memisevic was referring to when he said in evidence that he had recognised him as Ali. Indeed, Mr Memisevic was cross-examined by the applicant’s counsel as follows:
COUNSEL: You didn’t know him much better than that at that stage, just an acquaintance called Ali? - - - Yeah.
Is that true? - - - No.
No? - - - I knew him as Ali something in (scil, along) the lines of El Kheir or Kheir but - - -
I put to you that - - - ? - - - because of my answer I probably would have asked – answered Ali – I knew him as Ali, and he is Ali.
(It is not, of course, possible for this court to know whether the last three words of Mr Memisevic’s last answer (‘and he is Ali’) represented an identification in court by Mr Memisevic of the applicant as a person who was present in the garage at the relevant time.)
During the course of the trial, reference was made on occasions to the fact that Mr Memisevic had not yet been asked specifically whether he saw in court the person he had recognised as Ali in the early hours of 17 January 2011. The issue was put beyond doubt when Mr Memisevic, at a later point in the trial, gave the following answers to the prosecutor:
COUNSEL: Finally, sir, you were asked a number of questions relating to the third accused man in these proceedings, that’s Mr Ali Kheir? - - - Hmm.
Did you meet the third accused before the incident with the shotgun? - - - Are we talking about Ali Kheir?
Yes? - - - Yeah, I’ve met him. I’ve [met] him about a month before the incident.
As we have said, Mr Memisevic gave evidence that he recognised the applicant as one of the men in his garage in the early hours of 17 January 2011. He had met the applicant on a number of occasions before 17 January 2011, and was in a position to give that evidence. It is immaterial that, when giving evidence, he referred to the applicant as Ali Kheir, rather than as a man named Ali whose surname he did not know. Proposed grounds 1 and 2 must be rejected.
The telephone attributed to the applicant
In proposed grounds 4, 5 and 6, complaint is made about the basis on which the Crown case linked the applicant to the R phone and linked that telephone to the telephone intercept records tendered at trial. The applicant advanced two contentions. The first was that, as the R phone was found in a handbag belonging to someone else, it could not be tied to him. The second was that, while 14 digits of the IMEI number noted to be applicable to the R phone were identical to those on the Vodaphone records tendered for the telephone bearing the same telephone number, the 15th digit was different. It followed, so it was said, that the Vodaphone records relating to the tendered telephone intercepts must relate to some other telephone.
The R phone was found at the applicant’s residence, but in someone else’s handbag. The question was whether it had been used by the applicant and, more particularly, whether the telephone intercepts relating to that phone involved calls to which the applicant was a party. While it was certainly relevant that the R phone was found in another person’s handbag, that fact alone did not defeat the Crown case. What was in issue was whether the jury could infer on the whole of the evidence that calls intercepted in relation to that phone were made or received by the applicant. That is, whether the applicant was one of the parties involved in a telephone call that was alleged to be incriminating.
As already mentioned, the evidence at trial was that each telephone has a unique 15 digit IMEI number. The evidence was that an IMEI number can usually be found by opening the back of a telephone and removing the battery. Detective Senior Constable Bakas recorded the IMEI number of the R phone on a ‘Post-it’ sticker, as 351876014845133.[5] The ‘Post-it’ sticker was tendered at trial.
[5]Although, as we have already noted, the transcript records the two eights in this number as sevens, the original post-it note tendered at trial contains the number set out, being the number actually written by DSC Bakas.
At trial, the IMEI number on the R phone could not be located, but the prosecution tendered transcripts of telephone intercepts relating to the telephone number of that phone and Vodafone records for the same telephone number. The Vodafone records contained the IMEI number recorded by Detective Senior Constable Bakas, save that the 15th and last digit in the Vodafone records was a zero rather than a three.
In his final address, counsel for the applicant sought to make something of this apparent discrepancy. It had not previously been suggested that the IMEI number recorded on the ‘Post-it’ sticker was not the same as the IMEI number in the Vodafone records. In his charge, the judge pointed out to the jury that the IMEI numbers for each of the telephones for which Vodafone records had been tendered corresponded with the IMEI numbers recorded for the telephones, save that in each case the final digit was a zero rather than the digit actually recorded for each telephone.
We see no error in the approach taken by the judge. The judge was merely directing the jury’s attention to the evidence relevant to the issues in the trial.[6] If the defence were seriously contending that the Vodafone records did not relate to the R phone because the IMEI numbers were different, counsel would surely have objected to the tendering of the Vodafone records on the ground that they were irrelevant — that is, they did not relate to any telephone that might, on the evidence, be connected to the applicant.
[6]AJS v The Queen (2005) 12 VR 563, 577 [55].
As the judge said to the jury, it was for them to determine whether or not they accepted that the Vodafone records, tendered as being the records relating to Exhibit R, in fact related to the R phone. There is nothing in proposed grounds 4, 5 and 6.
The real question at trial, so far as the telephone intercept evidence was concerned, was whether the applicant was identified as a person who participated in those calls and said something that implicated him in respect of the criminal conduct for which he was facing trial.
The voice identification of the applicant by the informant
Proposed grounds 8 and 9 make complaint about the purported voice identification of the applicant by the informant, Sergeant Bray. Specifically, in proposed ground 8, complaint is made about the judge having permitted Sergeant Bray to give evidence as to his identification of the applicant’s voice in the various intercepted telephone conversations that were capable of establishing that the applicant was a party to the blackmail offence charged. In proposed ground 9, complaint is made about the judge’s directions in respect of Sergeant Bray’s voice identification evidence.
Examined on the voir dire, Sergeant Bray said that he had listened to approximately 1,000 telephone calls over the space of about a month. He had listened to the calls ‘over and over again’. After the arrest of the applicant and his co-accused, Sergeant Bray said he was able to attribute the various voices in the telephone intercepts to the respective accused. On one of the telephone intercepts tendered at trial, one of the speakers — said by Sergeant Bray to be the applicant — identified himself by the name Ali.
Questions were asked by the prosecutor on the voir dire which appear to have been directed at establishing the admissibility of Sergeant Bray’s evidence under s 78 of the Evidence Act — as a lay opinion, based upon what he had heard, and as being necessary to obtain an adequate account or understanding of his perception of what he had heard. Ultimately, however, the Crown seems not to have relied upon s 78 as a basis for admitting Sergeant Bray’s opinion evidence.[7]
[7]See further, Patrick v The Queen [2014] VSCA 89, [22]–[50].
In the course of argument about the admissibility of Sergeant Bray’s evidence, the trial judge asked counsel whether the records of interview of the accused (including the applicant) were going to be put in evidence. Counsel for all accused were in agreement that the records of interview (being ‘no comment’ records of interview) were not to be put before the jury. While it appears that the judge had access to transcripts of the records of interview, no counsel invited the judge to listen to any of the tapes.
At trial, it was submitted on behalf of counsel for the applicant that the opinion evidence of Sergeant Bray should not be admitted because the jury would not be able to test his opinion for themselves. The basis of this submission was that the applicant’s record of interview could not be played to the jury.
The judge rejected this submission, saying that it was always open to have the ‘no comment’ records of interview played to the jury for the purpose of testing the underlying facts upon which Sergeant Bray’s opinion evidence was based. As the judge noted, if that were done the jury would be directed that the accused had — as was their lawful right — declined to answer questions put to them in their records of interview. The exercise by the accused of their rights to silence could not be used against them. It would have been explained to the jury that the records of interview were only being played to permit the testing of the basis of Sergeant Bray’s oral identification opinion. As to the danger of unfair prejudice (s 137 of the Evidence Act), the judge held that any such risk could be addressed by the giving of appropriate directions as to the dangers of voice identification evidence.
Sergeant Bray gave evidence before the jury, consistently with the evidence he gave on the voir dire. At the time he gave his evidence, the judge directed the jury as follows:
Ladies and gentlemen, what is going to occur is Mr Bray, because he’s had more experience or exposure, I think, to these calls, than you and I have, he’s going to be allowed to express an opinion as to who he says are the voices in the various calls we are going to hear. That is just his opinion. Without any disrespect to him, it’s your opinion that matters. You are entitled to have regard to his opinion, and if you want to you can accept it.
I’ll be giving you some directions about that at the end, but bear in mind you are not bound by his opinion and you’ll have to consider, in the light of all the evidence, whether you accept he’s right when he says certain people are speaking. If you don’t know — if you are not sure, well, of course you’ll ignore this opinion. Yes.
During the course of Sergeant Bray’s evidence, the jury had an opportunity to hear the applicant’s voice. The trial transcript records the accused interrupting as follows:
Accused Kheir: It’s not my voice there.
His Honour: Mr Kheir, be quiet.
Accused Kheir: Sorry, sorry.
In his evidence in chief, Sergeant Bray identified the applicant as one of the speakers in the relevant telephone intercepts. He was briefly cross-examined by counsel for the applicant. It was not put to him, however, that his identification of the applicant in the telephone intercepts was incorrect or mistaken.
In his charge, the judge gave the following directions about Sergeant Bray’s voice identification evidence:
Mr Bray was only able to give that identification of voices because he told you that he listened to a lot of calls, up to 1000 calls and he heard conversations that the men had had with police that you have not heard and he was in a position to make a voice comparison that you are not.
Now you are not — as I said to you at the time he gave his evidence, it is opinion and you are not bound by that. Like any evidence you can accept it or reject it. You are able to do, to at least part, of what he was able to do. You are able to compare the voices on the various calls and ask yourself whether you think they are the same.
But he was able to give his opinion because he had a broader experience with the calls than you did. He had heard a lot more calls than you have got. So when I talk about Mr Bray's opinion or when I describe somebody's voice is said to be Maghrabi's I am only giving him the opinion evidence in that regard and you can accept or reject it if you want to.
…
You would have to be satisfied beyond reasonable doubt that the voices you are relying on are the voices said to be, by Mr Bray, to be the voice and that that what they're talking about, relates to the offence. This is an example where you could not use them unless you were satisfied of the fact you are relying upon to draw a conclusion against them beyond reasonable doubt.
…
I want to turn now to a topic that is important, it looms large in this case, and it is the topic of identification evidence, and there are two aspects to the identification evidence I want to give you directions about. The first is the voice identification or comparison evidence that was given by Mr Bray in relation to the voices of Kheir, Joseph and Maghrabi on those calls that you listened to.
The prosecution says that you should accept Mr Bray's evidence that the voices he attributes to the names are the voices of the accused men. Now, it is for you to determine whether these voices, as set out by Mr Bray are the voices of the accused men, and I should give you the following warning. The experience of the law has shown that the task of voice identification must be performed with great care. That is because it can be very difficult to make an accurate identification of voices. There may be problems in clearly hearing the voices, particularly if the recordings are of poor quality, or are of short length.
In addition, the relevant people may have been talking in very different circumstances and at different times about various matters, using different words and tones of voice.
It can make it difficult to ensure that any of the identification comparison evidence is accurate. It is important that you undertake any comparison of voices with special care, and you would be especially cautious before relying upon Mr Bray's evidence in relation to that comparison.
I want to look now, having given you that general warning about the dangers or difficulties of voice comparison, to look at specific factors that can affect the reliability of such evidence. There are two main factors that you must examine when making a comparison of voices; the quality of the material, and the nature of the voices to be compared. You should consider both these factors carefully, along with any other relevant factor when making a comparison.
Now, you will recall in this case Mr Bray was comparing voices that he heard on tapes, some of it in a foreign language. He was comparing it to voices that he heard when the particular accused spoke to police officers during the course of the investigation. Mr Lavery in his address to you this morning pointed to a number of factors that he submitted were relevant to this voice identification issue.
He pointed out, and I will just find the notation, you would need to look at whether or not the way in which people spoke when they spoke to the police was different to the way they would speak to each other in conversation on a telephone, and if that's the case, would you expect there to be a difference in the way their voices sounded when they were involved in such conversation. People speak differently on the phone to the way they do in, perhaps in more formal circumstances like talking to a police officer.
You consider whether the issue of speaking in a foreign language, because some of the language spoken here appears to be Arabic, and whether that makes the comparison task difficult. You would also consider the quality of the recording, how good was the recorded message when you are comparing that to voice to voice, actual live voice that he heard when he was listening to the people speak to police.
All of these things are factors you need to consider in determining whether or not you accept Mr Bray's voice identification. But as I say, the experience of the law is such that you need to take special care with voice identification, because people can be quite honest and quite convinced that they're right, but quite wrong.
So bear those factors in mind when you come to look at the voice identification, and indeed when you come to compare the voices yourself if you do so, which you are entitled to do, compare the words being used, the nature of the voices compared, and the quality of the material that records the voices.
Defence counsel took no exception to any of these directions.
Whether s 78 or s 79 was the relevant section
In what follows, reference will be made to ss 78 and 79 of the Evidence Act, which provide as follows:
78 Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
79 Exception—opinions based on specialised knowledge
(1)If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1)—
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following—
(i)the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
The applicant now contends that Sergeant Bray’s evidence contravened the opinion evidence rule under s 76 of the Evidence Act and should have been ruled inadmissible. The requirements of the expert evidence exception in s 79 were not met, it is said, as the ‘expertise’ which the witness possessed related not to the ability to identify the applicant’s voice, but only to his ability to distinguish between the various voices heard on the recorded intercepts. Moreover, it was argued, the opinion evidence lacked a sufficient factual foundation, as the record of interview which had formed part of the basis of the voice comparison was not tendered in evidence by the Crown.
The respondent relies upon R v Leung[8] and other authorities as establishing that an ‘ad hoc expert’ may fall within the s 79 exception for expert evidence. According to the submission, an ad hoc expert on voices contained in tape recordings can properly identify the subsequently–encountered voice of an accused as the same as one of those in the recordings.[9]
[8](1999) 47 NSWLR 405 (‘Leung’).
[9]Citing R v Li (2003) 139 A Crim R 281, 287 [42]; Irani v The Queen (2008) 188 A Crim R 125, 128.
In Leung, the trial judge had ruled as admissible the evidence of an interpreter who identified the voices he had heard on tapes as those of the two appellants. He had made the identification by comparing tapes of surreptitious recordings, which he had translated, with taped police interviews that took place entirely in English. It was argued that the interpreter was not sufficiently qualified to give expert opinion evidence concerning voice identification and voice comparison. The trial judge had admitted this evidence on the basis that it was an expression of a lay opinion, as provided by s 78 of the Evidence Act 1995 (NSW).[10]
[10]Section 78 of the NSW Act is identical to s 78 of the Victorian Evidence Act, and provides that the opinion rule (i.e. that evidence of an opinion is not generally admissible to prove the existence of a fact about the existence of which the opinion is expressed) does not apply to evidence of an opinion expressed by a person if (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter of event, and (b) the evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
On appeal to the New South Wales Court of Criminal Appeal, Simpson J disagreed with the judge’s characterization of the evidence as a lay opinion falling within s 78. In her Honour’s view, s 78 did not apply unless the ‘matter or event’ perceived by the witness was itself relevant, and evidence of the witness’s opinion was necessary for the jury to understand the witness’s perception of that matter or event. Her Honour stated that:
[T]he relevant matter was the identity of the speakers on the DAT tapes. [The interpreter]’s perception of that matter did not become relevant until he had formed his opinion as to that identity. Evidence of his opinion was therefore not necessary to obtain an adequate account or understanding of his perception. It was his opinion evidence that was said to render his perception of the matter or event relevant and admissible. Without his opinion, there was no ‘matter or event’ perceived by him, understanding of which would be facilitated by evidence of his opinion. His opinion was the primary, not the incidental, evidence.[11]
[11]Leung (1999) 47 NSWLR 405, 412 [34].
Her Honour concluded, however, that the evidence in question was admissible under s 79, on the basis that the witness possessed a particular expertise, that is, ‘specialized knowledge based on [his] training, study or experience’. She accepted the Crown’s argument that the interpreter fell within the section by virtue of his being an ‘ad hoc expert’. Both Spigelman CJ and Sperling J agreed with her Honour’s view that s 79 applied to the evidence in question.[12]
[12]Ibid 406 [1], 418 [66]–[67].
The category of ‘ad hoc’ expert was first recognised by the New Zealand Court of Appeal, in R v Menzies.[13] In that case, the ad hoc expertise was the capacity to decipher tape-recordings which were largely unintelligible to anyone who had not played them repeatedly. A transcript of tape-recordings was made by a police officer who had, by listening to the tapes many times, acquired such expertise. The transcript was held to have been properly put before the jury. The Court (Cooke, McMullin and Somers JJ, and Sir Clifford Richmond) said:
If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.[14]
[13][1982] 1 NZLR 40 (‘Menzies’).
[14]Ibid 49 (emphasis added).
The approach adopted in Menzies was endorsed by the High Court in Butera v Director of Public Prosecutions (Vic).[15]That case also involved the admissibility of transcripts of translated tape-recordings which were indistinct, and could only be made out after being listened to repeatedly by a person familiar with the various languages spoken on them. Dawson J accepted that the concept of an ad hoc expert could apply in such a case, to allow a transcript prepared by such an expert to be used as an aid to understanding, while emphasising that the original tape should still be produced. Gaudron J said that extrinsic evidence of the contents of a tape recorded conversation should not be admitted if an audible and intelligible tape recording was in evidence.
[15](1987) 164 CLR 180 (‘Butera’).
The High Court returned to this topic recently, in Honeysett v The Queen[16] but did not need to express a concluded view. In that case, the prosecution had led evidence from an anatomist as to physical characteristics said to be common as between the appellant and one of the robbers seen on CCTV footage. The ‘specialised knowledge’ of the witness was said to be biological anthropology and anatomy, as well as ‘forensic identification’, which was described as ‘the comparison of individuals based on the inspection of images’. The witness’s opinion was based on viewing the CCTV images of the robbery, and images of the appellant taken while he was in custody. The High Court held that the evidence was incorrectly admitted, as the anatomist’s opinion was not based on specialised knowledge but on observations of a kind which the jury could make for themselves.[17]
[16][2014] HCA 29.
[17]Ibid [2].
The Court of Criminal Appeal had upheld an alternative basis of admissibility, namely that the repeated viewing of the images had rendered the anatomist an ‘ad hoc expert’. In the High Court, the Crown did not seek to maintain this proposition and, as a result, the Court was not required to rule on its correctness:
In Butera v Director of Public Prosecutions this Court endorsed the statement of Cooke J in R v Menzies that a person may ‘be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc’. In issue was the admission of the transcript of a tape recording as an aid to assist the jury in its understanding of an indistinct recording. Butera and Menzies concerned the common law of evidence. The particular problem that they addressed is the subject of provision under the Evidence Act. Whether the New South Wales Court of Criminal Appeal is right to consider that the repeated listening to an indistinct tape recording or viewing of videotape or film may qualify as an area of specialized knowledge based on the listener’s, or viewer’s, experience does not arise for determination in this appeal. The respondent acknowledged that Professor Henneberg had not examined the CCTV footage over a lengthy period before forming his opinion. In this Court, the respondent does not maintain the submission that Professor Hanneberg’s opinion was admissible as that of an ad hoc expert.[18]
[18]Ibid [48].
Menzies and Butera were both cases in which expert evidence was admitted in order to interpret or explain relevant conversations that the jury would find unintelligible or incomprehensible. Several New South Wales cases adopt and accept the ‘ad hoc expert’ as a category of expert under s 79,[19] and there are also decisions of this Court which adopt the concept. These cases, like Menzies and Butera, concerned transcript of an otherwise unintelligible tape recording prepared by somebody who had listened to it repeatedly. The transcript was held to be an appropriate aid for the jury in their understanding of the evidence constituted by the recording itself.[20]
[19]See Li v The Queen (2003) 139 A Crim R 281; R v Madigan [2005] NSWCCA 170, [107].
[20]O’Neill v The Queen [2001] VSCA 227.
Such cases do involve some degree of expertise, in the sense in which that the term is generally understood. The same is true of an expert who prepares a transcript of a tape recording based on familiarity with the language or languages spoken in that recording — as in Leung and Li v The Queen.[21]
[21](2003) 139 A Crim R 281.
In the present case, Sergeant Bray had no special language or interpretation skills. He said nothing as to the content of any conversation. He produced no secondary material to assist the jury in comprehending the tape recorded evidence. Rather, he gave evidence that he identified the voice of the accused in telephone intercepts and in an interview, based on many hours of listening to the intercepts in question. Sergeant Bray’s evidence was directed only to the identity of the person speaking in them.
In Leung, Simpson J said that a person who had ‘specialized experience of the person of whom [an] identification is made’ might be a ‘familiar example of an ad hoc expert’.[22] This statement has received tentative assent in several subsequent New South Wales cases.[23] In Victoria, however, identity evidence has never been treated as a matter of expertise. Authority in this jurisdiction establishes that voice recognition is not to be regarded as a field of expertise about which only experts may give evidence.
[22]Leung (1999) 47 NSWLR 405, 414 [43].
[23]See R v Marsh [2005] NSWCCA 331, [32] (in which a woman identified her brother in photographs taken by a bank security camera), and R v Drollett [2005] NSWCCA 356, [63].
In R v Harris (No 3),[24] Ormiston J examined the issue of the admissibility of a police officer’s voice identification evidence based upon tape recording and said:
[A]lthough a trained person might more readily describe the characteristics of a voice, a friend or relative, or any person who had prolonged familiarity with a voice, could recognize it accurately without being able to analyse his reasons for doing so, although he himself has some qualifications as to the certainty which any person could reach on the subject.
It follows, in my opinion, that nothing in this evidence persuades me that voice recognition is a field of expertise about which only experts may give evidence. Such a conclusion would not only be wrong, but it would also be impractical … the process of identifying a voice is a matter of everyday experience and one which is normally incapable of precise analysis … this is clearly a field in which non-expert opinion may be received, even if it were to involve opinion rather than observation in the widest sense.[25]
[24][1990] VR 310 (‘Harris’); see also Latorre v The Queen (2012) 226 A Crim R 319, [68]. Latorre, along with other cases referring to Harris such as Callaghan (2001) 4 VR 79, is concerned primarily with the question whether familiarity/distinctiveness are required for voice identification.
[25]Harris [1990] VR 310, 318.
This conclusion is reinforced by the approach of the High Court in Lithgow City Council v Jackson,[26] where French CJ, Heydon and Bell JJ approached s 78 as being consistent with the common law exception to lay opinion evidence:
The common law permitted the reception of non-expert evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state … [I]n many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
…
The function of the law in relation to that category [s 78(b)] is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated … For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed.[27]
[26](2011) 244 CLR 352.
[27]Ibid [45], [48] (emphasis added).
In our view, the evidence of Sergeant Bray was more appropriately viewed as falling within s 78 than s 79. The ‘matter’ of which Sergeant Bray had a ‘perception’ was the audio recordings of the telephone intercepts, the recordings of the applicant’s record of interview and a comparison of the two. His perception of that comparison met the test of relevance because he was in a better position to make that comparison than the jurors were.[28] Whether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. Sergeant Bray’s opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices’ similarities.[29]
[28]Cf Smith v The Queen (2001) 206 CLR 650, 654–5 [9].
[29]Cf Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2010) at [1.3.4180] where reasoning in R v Leung (1999) 47 NSWLR 405, 412 [34] is criticised as follows: ‘It was a fact in issue whether the two accused were the persons recorded speaking on the DAT tapes. Evidence of their voices recorded on another occasion was relevant to that fact in issue since a comparison between the voices on the two sets of tape recordings could rationally affect the assessment of the probability of the existence of the fact in issue. That comparison was a relevant ‘matter or event’ in the proceeding although … it is not necessary that the ‘matter or event’ must itself be relevant. The interpreter’s opinion was based on what he heard when he listened to the two sets of tape recordings and engaged in such a comparison. In addition, evidence of that opinion was arguably necessary to obtain an adequate account or understanding of his perception of the similarities between the two sets of voices’.
The present case was not one in which an expert was asked to give an opinion on facts provided to him for that purpose. It is difficult to see how a scenario such as this one can be meaningfully distinguished from one of long-held personal familiarity with an individual’s voice, such as might arise out of a friendship or a long-term neighbourly acquaintance. It is not, we think, correct to say that repeated exposure to the voice of a friend or neighbour makes a person an ‘expert’ in that voice.
As recognized in Lithgow, s 78 overcomes the difficulties with the Makita requirement that an expert witness ‘either prove by admissible means the facts on which [their] opinion is based, or state explicitly the assumptions as to fact on which the opinion was based.’[30] The High Court’s comments in Lithgow and those of Ormiston J in Harris refer to the fact that identity evidence — including voice identification — will not always have a factual basis which is capable of clear explanation. There would be obvious evidentiary difficulties if the requirements of Makita were to be fulfilled in the case of recognition identification, as the facts upon which recognition identification rests may be too numerous or nebulous for the witness to enumerate.
[30]Makita v Sprowles (2001) 52 NSWLR 705, 731 [64].
It follows from what we have said that we have reservations about the reasoning in Leung regarding s 78 of the Evidence Act. In one sense, the evidence which any witness gives as to the occurrence of an event is no more than that witness’s opinion. If, however, the giving of identification evidence were to be regarded as an expression of opinion, we doubt that such evidence would need to satisfy the requirements of s 79, rather than the exception in s 78.
But, proceeding on the assumption that the admissibility of Sergeant Bray’s evidence was governed by s 79, we would reject the applicant’s complaint about the failure to tender the tape recording — over his objection — and therefore to provide an adequate factual foundation for the identification evidence. The principle in Makita — that the facts on which the expert evidence is based be proven — did not require that the audio of the record of interview be tendered in evidence.
The sound of the applicant’s recorded voice in the record of interview was not a fact on the basis of which Sergeant Bray was expressing his opinion. The relevant facts were that he had listened to the telephone intercepts for many hours, and that he had listened to a record of interview with the applicant. He testified as to those facts before the jury. If the jury accepted his evidence as to those facts, they were then proved.
The specialized knowledge which Sergeant Bray possessed, based upon those facts, was a high degree of familiarity with the voices of the people on the recorded intercepts. As a result, he was able, when he heard the applicant’s voice elsewhere, to identify his as one of those voices on the intercepts. The fact that the interview was not tendered as evidence was no barrier to the acceptance of that opinion. Moreover, as mentioned earlier, defence counsel resisted having the tapes of the records of interview put before the jury. Having done so, the applicant can hardly complain now that the jury was deprived of material from which it could test Sergeant Bray’s opinion.
The applicant argues further that, even if Sergeant Bray’s voice identification evidence was admissible, it ought to be have been excluded under ss 135 or 137 of the Evidence Act. In our view, the judge was right not to exclude it. Its probative value was high. The evidence identified the applicant as a party to conversations which incriminated him in the offending.
The prejudice relied on by the applicant was that he could only test the opinion by introducing the fact that the applicant had made a ‘no comment’ record of interview. That contention cannot be sustained. First, it was the defence’s choice to seek the exclusion of the record of interview. Second, had the interview been tendered, the trial judge would have directed the jury in conventional terms that no adverse inference could be drawn from the fact that the applicant chose to make no comment.
Third, as the trial judge said to defence counsel, if the defence maintained their objection to the tender of the interview but wished to assert that the record of interview provided only a very limited opportunity to hear the applicant’s voice, that was a point that could have been made during cross examination without reference to the content of the conversation although it would likely have resulted in the prosecution seeking to tender the interview in re-examination. Instead the defence maintained its objection to the production of the record of interview and chose not to demonstrate the asserted limitations of the record of interview in cross examination. None of these considerations required the exclusion of the record of interview. If there were any shortcomings in the identification made by Sergeant Bray’s evidence, they were a matter for the jury.
Finally, it was submitted for the applicant that the jury could not assess the probative value of the evidence without hearing the tape-recordings upon which it was based.[31] We reject this argument. As we have said, the defence made forensic decisions as to the means by which it would seek to challenge Sergeant Bray’s evidence. Defence counsel did cross-examine the witness on matters such as his familiarity with the telephone intercepts at the time he first heard the applicant’s voice, or whether that voice had any identifiable distinctive characteristics. In final address, counsel raised several issues for the jury, namely, the way that people speak in different contexts; the possibility of unconscious bias; and the lack of complete contemporaneity in Sergeant Bray’s experience of the voices he heard. The judge clearly warned the jury about the dangers associated with voice identification evidence. No exception was taken to the charge. There was no appreciable risk that the evidence would be given undue weight by the jury.
[31]This complaint arose under cover of Ground 9.
Sentence
In his application for leave to appeal against sentence, the applicant makes three complaints: first, that the sentence imposed on the charge of blackmail (four years) is excessive, and attended with specific error in that the judge sentenced the applicant on the basis that his involvement was protracted and took place over a number of days; secondly, that the sentences on the individual charges were manifestly excessive; and thirdly, that the orders for cumulation did not give sufficient weight to the principle of totality, as the events giving rise to the charges were ‘all closely connected’. Further, cumulating two years of the sentence for blackmail was said to have produced a sentence which was disproportionately heavy.
In argument, the applicant’s counsel said that his ‘major complaint’ concerned the orders for cumulation, although the blackmail sentence was said to be too high — having been affected by the judge’s failure to deal with the applicant as a ‘relative late-comer’ to the events comprising the blackmail.
We see no error in the sentence. Having regard to the applicant’s involvement in the initial offending in the early hours of 17 January 2011, it was well open to the judge to sentence the applicant on the basis that his involvement in the offences with which he was convicted ‘was protracted and took place over a number of days’.
As to totality, in sentencing the applicant and his co-accused the judge said:
Clearly, principles of totality are highly relevant to sentencing each of you. Each of you should be sentenced not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identified conviction, but for what, during the circumstances broadly and reasonably, can be characterised as your criminal conduct. It is for that reason that I have identified the three separate sets of criminal conduct from the total convictions recorded in this case.[32]
[32]DPP v Kheir (Unreported, County Court of Victoria, Judge Chettle, 27 June 2013) [59].
The three separate sets of criminal conduct identified by the judge were: first, the conduct involving the aggravated burglary, armed robberies and recklessly causing injury; secondly, the kidnapping and intentionally causing serious injury; and thirdly, the blackmail.
As the judge said, the maximum penalties for each of the offences demonstrated what serious offences they were. Moreover, the applicant had 43 prior convictions from 12 separate court appearances between 1991 and 2009. While these prior convictions were predominantly for drug and dishonesty offences, there was a conviction in 1997 for possessing a regulated weapon, a conviction in 2004 (resulting in a sentence of 12 months’ imprisonment) for intentionally causing injury, and convictions and terms of imprisonment in 2008 and 2009 on charges of possession of a controlled weapon.
Taking all relevant matters into account (and specifically those referred to by the judge in his sentencing remarks), we see no error in any of the sentences imposed, nor in any of the orders for cumulation. In our view, the sentences and orders for cumulation were well within the range reasonably open to the judge. The application for leave to appeal against sentence must be refused.
Conclusion
The applications for leave to appeal against conviction and sentence will be refused.
- - -
11
14
0