Kheir v The Queen

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.