Korgbara v The Queen

[2007] HCATrans 485

[2007] HCATrans 485

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 2007

B e t w e e n -

OZONE EMEKA KORGBARA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 12.23 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR H.K. DHANJI.  (instructed by Jeffreys & Associates)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS C. DOBRASZCZYK, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  May I commence by taking your Honours to the judgment in dissent of Justice Grove at page 111 of the application book where his Honour makes in paragraph 118 what we would say is a telling point, namely, that:

It is self evidently not a commonplace human experience to recognise a speaker’s voice in a language other than that which one is otherwise familiar -

Now, what happened in this case was that there were a number of phone calls in a Nigerian language called Igbo.  The jury were invited, in fact it became essentially an indispensable part of their case, to make a comparison between what they heard of this language, Igbo, and one telephone call in which Mr Korgbara spoke in English and after he had given evidence, his evidence. 

Now, when one looks at Justice Grove’s judgment at paragraph 119, we see what, in my submission, is clearly an accurate statement of what is occurring here, which is the jury are being invited to engage in what is mere guesswork and they are being ‑ ‑ ‑

GLEESON CJ:   It must depend on the circumstances of a particular case, must it not?   I mean, I can imagine some circumstances in which a person had such a distinctive method of speaking, perhaps to take an extreme example, a person might have an impediment, a defect that you would have no trouble recognising in whatever language they were speaking in.  On the other hand, there are some African languages where people speak with clicking noise and glottal stops and other things that might make it very difficult.

MR GAME:   Yes, but you would have no way of knowing what Mr Korgbara’s voice sounded in Igbo compared with any of the other 15 to 20 million Igbo speakers.

GLEESON CJ:   No, but there cannot be a general rule, can there, that it is always inadmissible?

MR GAME:   No, not at all, your Honour.  May I say that – and I will take your Honours to this shortly – but in England and Northern Ireland and the whole of Europe, in cases like this there is an insistence on both auditory and acoustic evidence.  Auditory evidence is like the sound “hallo” or “hello” or “deh-mand” and “dee-mand” and acoustic is measuring what comes out of the mouth, the shape of the sound and its frequency and so forth.  They insist on both in these sorts of cases.

Now, your Honour, there is a very basic question in this case.  It can be seen if one goes back to a page in Justice Grove’s judgment.  In the last line on the bottom of page 109 he says:

is not to establish a prescriptive rule but, to the contrary, to extend the scope of what is permissible beyond recognised boundaries.

That is just after he has picked up the points that are made by Dr Nolan that are picked up in the Lord Nicholson’s judgment in O’Doherty.  Now, one goes back to Justice McColl’s judgment and all it says on the subject really is at paragraph 74:

In my view, it is not open to this Court to establish a prescriptive rule -

Then her Honour referred to three cases, Bulejcik, Nguyen and Leung and we have explained in our written submissions why those three cases have nothing to do with the kind of exercise which is being – I say nothing to do with.  Maybe that is an exaggeration, but they provide no support for the exercise that the jury was invited to do in this case.

HEYDON J:   Your argument is that the English part was irrelevant.  Is that right?

MR GAME:   Sorry?

HEYDON J:   Is your argument that – leaving aside his testimony, are you saying the evidence of him speaking in English is inadmissible, or the evidence of him or someone speaking in Igbo is inadmissible?

MR GAME:   No, it is the use that the evidence is put to.

HEYDON J:   So both categories of evidence are receivable?

MR GAME:   Yes, except ‑ ‑ ‑

HEYDON J:   In that case, we are talking about some direction, are we, to the jury?

MR GAME:   No, we are talking about limiting the use of the evidence under section 136.

HEYDON J:   Let me just ask this question.  Was that requested?

MR GAME:   Yes, your Honour.

HEYDON J:   Right.

MR GAME:   Can I say this?  It went like this.  When the tapes were to be tendered of Igbo language, an objection was taken to them being played because this would invite an exercise in comparison, and the Crown, in effect, foreshadowed that that was the exercise that they were intending to conduct.  Her Honour admitted them for that purpose.  When the English call came to be tendered, the one English call made on 14 October to the NRMA, that call was objected to on the same basis, namely this exercise in comparison - no foundation had been laid for it to be done.

When it came to the end of the case, defence counsel reasserted his objection that the material should be used for the purpose of comparison.  It had come in now and he was saying under section 136 it should be limited.  That exchange is in the supplementary appeal book.  There is no need to go to it, but those other two passages of evidence - I could provide them if required.  So that is what happened.

GLEESON CJ:   Were these conversations that emanated from a mobile telephone or came to it?

MR GAME:   Both, but more to than from.

GLEESON CJ:   Who was the owner of the mobile phone?

MR GAME:   My client, but there were 9,000 phone calls on this telephone service ‑ ‑ ‑

GLEESON CJ:   But there was not much doubt about them getting in.

MR GAME:   No.  Sorry, I left out one thing.  Her Honour said at the very end of the exchange before the summing‑up that she would not have allowed the tapes to be played at all if she did not have in mind the comparison exercise, because that would, as it were, invite a comparison where no inferences could be drawn from it.

GLEESON CJ:   That would mean excluding them on discretionary grounds, would it not?

MR GAME:   No, it would involve the ‑ ‑ ‑

GLEESON CJ:   They were plainly relevant, were they not?

MR GAME:   Absolutely, your Honour.  What I am saying is this.  The transcripts would go in at the least or the tapes could go in, but the jury would be directed not to engage in a comparison exercise beyond knowing that it was a man’s voice who could speak Igbo and it was Mr Korgbara’s service.  But when you come to what happened in this case, you will see, if I might take your Honours – sorry, my point, before turning to the summing‑up, is this case raises an important question because the only prescriptive rule is relevance in this situation.  How could it be that ‑ ‑ ‑

GLEESON CJ:   Relevance of what?

MR GAME:   The relevance of the comparison exercise, that is to say, whether the comparison exercise can be carried out by the jury of the kind that the jury was invited to do.  Relevance applies to section 136 just as it applies to any - relevance applies, if one limits the use, and it did not require section 136 to operate in that way, at common law there is a decision of this Court called B v The Queen about 10 or 12 years ago where it was held that the use of evidence could be limited to relevant and non‑relevant purposes.

The first question is this.  May I take, shall I say, a homely example?  If one has a friend, partner or relative who speaks a foreign language, even a foreign language with which one has some familiarity, like French or Italian or Spanish, there is no way that one could say that one could recognise that person speaking in the foreign language.

GLEESON CJ:   On the subject of relevance, what about distinguishing between a male and a female voice?

MR GAME:   That is fine, your Honour.  There is no problem with that.

GLEESON CJ:   So at least it was a man.

MR GAME:   Yes, of course.  But may I take you to how it was used, because the jury were, as it were, armed as experts in voice identification.  If one goes to the summing‑up - and this is what was intended, and the exchange before the summing‑up discloses that this is what the judge had in mind.  The jury would in fact become experts in analysing the sounds to determine whether or not Mr Korgbara was the person talking in Igbo.  One looks to the bottom of page 20 of the application book:

In this case, as judges of the facts . . . to make your own comparison of the voice of the accused recorded in the call of 14 October 2002, the NRMA call -

There are 27 calls.  Then we see at the top of the next page, 21:

All of which are in IGBO except for the occasional word in English.

Then her Honour gives some direction.  Then her Honour on the following page says at line 20 and following:

therefore when you performing that task of voice comparison you should keep in mind that you are really comparing sounds of voices only.

Now, there are real and serious questions as to whether or not a jury could do such a thing.  There are questions of voice quality, pitch, intonation and the kind and such learning as there is on the topic, which was alluded to briefly by Justice Grove referring to Lord Nicholson’s decision, would suggest that that is a completely speculative exercise.  Even people with trained ears have great difficulty in doing so.  Now then we come to the bottom of the following page:

The Crown says that when you listen to the calls and hear the pitch or tone or the level –

Who knows anything about how Igbo is spoken - what pitch, tone or level it is spoken at?  You see the top of the next page:

Prosecutor described as “a relaxed, laid back voice” -

Now, this becomes a voice line up with a line up of one, which is Mr Korgbara, and the voice.  Then we see at line 32 her Honour actually puts to the jury that:

if you were relying on the voice comparison alone –

you would have to be satisfied of X, Y and Z.  So the jury are being told that one means by which they can reach a verdict is on the voice comparison alone.  Then the second way is “sounds like”.  That is in the next paragraph.  That then goes in as part of the prosecution’s evidence.  Again, you would have to know a good deal about the Igbo language to even make that assessment.  It is pure speculation that a jury could do so.  It is not a question of a prescriptive rule.  It is a question of establishing a foundation for the jury to do this exercise.

Then on the following page, and this is what Justice Grove is alluding to when the possibility of, as it were, an acquittal arises from the way the Crown conducted its case, this is the matter he is alluding to in the last paragraph - he says:

On the other hand if you came to the view that the voice on the IGBO calls nominated . . . didn’t sound anything like the accused’s voice ‑ ‑ ‑

GLEESON CJ:   Sorry, what page?

MR GAME:   Page 25, line 12.

GLEESON CJ:   Thank you.

MR GAME:  

didn’t sound anything like the accused’s voice, well then you would put the calls to one side.  On the way this case has been run the Crown Case would fail and the accused would be acquitted because the other evidence standing alone would not be sufficient to satisfy you beyond reasonable doubt -

So the way this case was conducted is that he was to be acquitted if the jury could not engage in this exercise, that is to say, if the voice comparison was put to one side.  So this case does raise a question of general importance and it raises a case of general importance beyond the issue of the specific issue raised in this case ‑ ‑ ‑

GLEESON CJ:   I am looking at page 111, paragraph 120.

MR GAME:   Yes, your Honour.

GLEESON CJ:   Justice Grove.

MR GAME:   Yes.

GLEESON CJ:   I am trying to relate that.

MR GAME:   Third sentence:

I note the existence of possible issue as to whether the conduct of the case ‑ ‑ ‑

GLEESON CJ:   No, he said:

I record my opinion however that, absent the voice comparison which was permitted, there remains a strong Crown case.

I am trying to relate that to what you drew attention to on page 25, line 20.

MR GAME:   The next sentence, “such as to permit the order of a new trial”.  The critical word is “permit”, ie, he is saying, “Well, though it was a strong case, the way the Crown” – I did not mean to mislead you.  I am confident that that is what it meant, and that is why I said what I said.  It is the word “permit.”  His Honour is clearly alluding to the fact which was obviously argued before the court that the way the Crown conducted its case it needed this comparison.

GLEESON CJ:   That is running you into your next case.

MR GAME:   One folly at a time, your Honour.  I wanted to take your Honours to a couple of the English and the Northern Irish cases just to make a couple of points.  They are points, in my submission, which are significant when one asks oneself what is the common experience of people in respect of drawing inferences of this kind.  The first is O’Doherty [2003] 1 Cr App R 5. Now, you will see on page 80, paragraph 12, that is an extract from Dr Nolan’s evidence. Then on page 82, paragraph 17, we are talking about same language comparison here, not the quite extraordinary activity that took place in this case:

He was not aware of any country in continental Europe –

this is Dr Nolan –

where expert opinions on voice identification were based exclusively on auditory techniques and the standard method involved a combination of both methods. 

Then there is a lengthy discussion of it and you see a passage at page 85, in paragraph 33, about two thirds of the way through, speaking of the jury: 

They were not able to hear again and again.  They had no training as to voice quality, pitch and intonation.

GLEESON CJ:   This was about the admissibility of expert evidence.  Is that right?

MR GAME:   No, this was an issue about the safeness of a verdict where there was auditory but not acoustic expert evidence.  Now, if you turn to page 90, you will see a reference to Robb and auditory analysis.  In paragraph 57, the sufficiency of auditory analysis, his Honour says:

Time has moved on -

that is, one needs both auditory and acoustic analysis.  The point of this is to show that there is no such thing as a common experience of human nature or human abilities that enables an exercise of this kind to be conducted.  What was being spoken about in Bulejcik and the judgment of Chief Justice Brennan, which was in dissent actually, is a case where there was a man who spoke English with a European accent and he was being compared in tapes with the same person in English and the question according to the joint judgment of Justices Gummow and Gaudron was whether or not the evidence was of sufficient quantity and quality for the jury to make that much simpler comparison than the one we are talking about here.

The other case I wanted to refer to is Chenia.  Chenia is a similar case, but I just wanted to take your Honours to Lord Justice Clarke’s judgment at paragraph 106:

The other aspect of this part of the case about which we have some concern is whether it was appropriate to invite the jury to make their own judgment . . . 

However, we do not think that a jury should, as it were, be asked to be their own voice expert.

Now, that is the exercise that was conducted in this case.  When one goes back to – I have taken your Honours to the relevant passage – to Justice McColl’s judgment, her Honour thought that Australian authority was somehow different than this, that Bulejcik, Nguyen and Leung demanded some different kind of result.

GLEESON CJ:   All right.  Thank you, Mr Game.  We will adjourn now, Ms Abraham, and we will hear you when we come back at 2 o’clock.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, in my submission, there is no question about the admissibility of the telephone calls in Igbo, or indeed the English telephone call.  The issue was whether the use would be limited under section 136 of the Evidence Act.  The learned trial judge in this instance made that decision at the end of all the evidence.  It was clear at the outset that she was going to do that.  Prior to the trial commencing ‑ ‑ ‑

GLEESON CJ:   Was there a ruling?  Do we see her ruling on that?

MS ABRAHAM:   It is not a ruling.  The transcript is not in the application book, but shortly before the jury were empanelled, her Honour, when dealing with the issue of whether the Crown would say that one could compare with the other, her Honour in effect said:

I don’t know.  I haven’t heard them.  I don’t know whether that’s possible or not possible that’s why I raised it with you yesterday.  That’s not a matter for me at this stage.

SPENCER:   All right well I’ve said what I want to say.

HER HONOUR:   Unless there’s something that you need me to rule on, as I say, no material’s been placed before me, as you understand what the Crown case is -

Basically it was to be at the end of the trial.  No material had been put before her on the issue of comparing voices.  By the stage that her Honour made the ruling, the application was under 136 to limit the use and/or stay the proceedings pending, and the defence had an opportunity to obtain some evidence to say this cannot be done.  That was refused and that was not challenged on appeal.  So it is simply the limiting ‑ ‑ ‑

GLEESON CJ:   Does the precise limit appear?

MS ABRAHAM:   The evidence was not limited.

GLEESON CJ:   No, but what was the application?  Limited to what?

MS ABRAHAM:   Limited, in effect, so that the jury were told they could not compare – they were not allowed to compare the voice on the tapes in Igbo with the English recording.  Her Honour declined to do that, but she did that not in a vacuum, of course, because she had heard by that stage all 26 calls in Igbo, the call in English, and of course the accused gave evidence for the better part of a day in English.  Her Honour had that material when she refused the application. 

In my submission, it is important that this case is not looked at in a vacuum, because my friend’s submissions so far are focused on - there is the English call, one English call, there are the Igbo calls, and that is what the Crown relied on.  The case was a circumstantial case.  Your Honour, the telephone that was being tapped was a telephone in the name of the applicant.  It was his phone.  The call in English was during the course of the other calls. 

The telephone was found in his possession at the time of his arrest.  Contents of some of those telephone calls are linked to the applicant.  For example, in one of the telephone calls there is a reference to the tracking number for the package said to be the package of drugs.  That number is recorded on a piece of paper inside a notebook that was in a bag in the accused’s possession at the time of his arrest.  In the notebook also were other entries that are referred to in the telephone conversations.  There is reference to a fax number that was provided over the telephone to the receiver.  That is written in the notebook.  There is reference to some names and telephone numbers and again they are listed in the notebook that is in the bag in his possession. 

The telephone number is on his business card as his telephone number.  The letter or the drugs were sent to a post box that was his post box.  He had the key to it.  He was the one that collected the letter, which the police had placed, the police having intercepted the drugs, a letter had been sent through.  They are just some examples of the evidence that the jury were entitled to take into account in determining whether or not the applicant was a participant in these telephone calls.

So when my friend made the submission at the outset that voice comparison is indispensable to the Crown case, in the Crown’s submission, that is not so.  When making that submission, my friend took your Honours to a passage at page 25 of the application book which was said to be that was the way the Crown ran its case.  Your Honours will remember the first full paragraph on page 25.  My friend said from that, well, that means voice comparison is indispensable and without that, in effect, the telephone calls are to one side.  That is not correct, in my submission.  What her Honour was saying was that if it does not sound anything like the accused’s voice then put it to one side, because the Crown case was it was the accused as a participant in these calls.

GLEESON CJ:   What she actually says on page 25 is the Crown case would fail if you conclude that it excludes the possibility of it being the accused.

MS ABRAHAM:   Absolutely, which is my point.  It was a circumstantial case ‑ ‑ ‑

GLEESON CJ:   Which makes what she said on page 25 perfectly consistent with what Justice Grove said on page 111.

MS ABRAHAM:   Yes, and so, in my submission, it is incorrect to characterise this or the voice comparison as being indispensable as my friend has put.  In my submission, it is also incorrect to focus any argument simply on the telephone call in English and the telephone calls in Igbo because, in my submission, that is not how the jury were required to approach the task.

Having said that, in my submission, the inevitable consequence of my friend’s submissions, although he disavowed it when your Honour the Chief Justice put it to him earlier, is that expert evidence is required in all these cases.  Your Honour asked a question and he said no, he was not saying it was in every case, but the consequence of what he has put to the Court is exactly that.  His reliance on Chenia and O’Doherty are to support that proposition.

Can I make two points about that?  The first is, if he is saying it is not a general proposition this is required, then it is purely factual and turns on the facts of the case and, in my submission, clearly not a matter of general importance in those circumstances.  If it does result in an argument that one must have expert evidence in these cases, then, in my submission, that is contrary to the law in this country and, indeed, it is contrary to the Evidence Act in this State, because it changes what was occurring from voice comparison to voice identification.  Voice identification has no threshold test of admissibility in this State under the Evidence Act and, to succeed in his argument, my friend would have to get to change that.

In my submission, the two cases that my friend has relied on, namely Chenia and O’Doherty, do not stand for the propositions that have been suggested.  In my submission, neither case stands for the proposition that you must have expert evidence in this area, quite to the contrary.  In my submission, for example, in O’Doherty there is a passage that appears at page 98 of the application book that is cited in the judgment of the Court of Criminal Appeal.  It is the passage in italics in the middle of the quote, beginning at about point 4, which in effect says that:

the jury may listen to a tape-recording of the voice of the suspect in order to assists them in evaluating expert evidence and in making up their own minds -

O’Doherty is saying that.  The point in O’Doherty was that some expert evidence was led and the issue became, if you are going to lead expert evidence as there are two sorts, auditory and acoustic, you need to lead both, not one.  The issue was not the point.

GLEESON CJ:   Ms Abraham, is there a typographical error on page 24 in the summing‑up?  In the last paragraph on the page commencing with the word “Ultimately” in line 3 should the word “can” be “cannot?”  It does not seem to me to make sense the way it is.  She is talking about the possibility that they cannot be satisfied by voice comparison alone.  I would take that to mean they cannot positively identify that it is the accused speaking on the Igbo calls.

MS ABRAHAM:   Yes.

GLEESON CJ:   That looks like a typographical error.

MS ABRAHAM:   Yes, it does now that your Honour has raised it.  Yes, that is correct.  Her Honour then goes on, and it follows naturally:

come to the view that it sounds like the accused’s ‑ ‑ ‑

GLEESON CJ:   She seems to be considering three possibilities.  In the paragraph beginning “I should say this,” she is considering the possibility that relying on voice comparison alone, they could be satisfied beyond reasonable doubt.  Next paragraph, the possibility is that they “cannot be satisfied beyond reasonable doubt by voice comparison”, but they are saying it “sounds like” his voice, could be him.  Then they put that together with other evidence.  Then the third possibility, she deals with in the next paragraph, is they can positively exclude it ‑ ‑ ‑

MS ABRAHAM:   That is correct.

GLEESON CJ:   ‑ ‑ ‑ because it is so unlike him.

MS ABRAHAM:   Yes.  In the context obviously of what were, in my submission, very thorough directions or caution as to how one would approach the issue of comparing voices, in the circumstances of this particular case, directions very much tailored to this particular case.  Your Honours, I mentioned a moment ago, talking of O’Doherty, that, in my submission, that does not stand for the proposition that my friend suggests, that is, that one needs expert evidence in this field and, indeed, the suggestion was as large as “This is what happens in Europe”.  That very case indicates that juries can compare.  When one thinks about it, that is quite right, because I am not quite sure what my friend suggests the expert evidence is in this case.

GLEESON CJ:   There is a matter that has been discussed in a number of the cases.  It is about an ambiguity involved in the word “identification”.  Sometimes identification can mean, “Yes, I recognise that person as John Smith”, but another form of identification, which is sometimes significant when taken with other evidence is “It could be John Smith.  It is a large, middle‑aged man and the person who did this to me was a large, middle‑aged man.  That is all I can say.”  But it may be saying a lot if there is other evidence in the case that points to John Smith.

MS ABRAHAM:   Absolutely.  In my submission, what my friend is trying to do here is in fact argue that what one needs ultimately in this scenario, foreign language because it has been asserted – I am not quite sure on what basis – that you could not possibly do any comparison, what my friend is doing is saying you cannot have that.  You must have voices attributed and they must be attributed by an expert.  So it even takes it out of the realms of the voice comparison and takes it into what is voice identification; a slightly different category of evidence, as I indicated earlier, which does not have a threshold test in this State, under the Evidence Act.

GLEESON CJ:   She has actually left to the jury the possibility that they could use the evidence to exclude the applicant.

MS ABRAHAM:   Absolutely.  Yes.  With respect, as I said, I am not quite sure what my friend is suggesting the expert evidence is, because what is talked about in Chenia, the other case, there is talk of police officers identifying or attributing voices and, if that is going to happen, the court needs to know in advance what the basis of that is.  Chenia is very much a case of, as the Court of Appeal observed, decided on the facts - that on the facts of that case where there were brothers talking.  So, in my submission, my friend has not identified what it is that is said to occur.  I am not quite sure, with respect to my friend, what the logical consequence is. 

Does it mean if the Crown did call an expert then the jury would not be able to test what the expert said by saying, “Hold on a second.  I have listened to this.  They sound nothing alike”, or is the jury bound by what this expert says?  Clearly that is not what these cases are saying; quite to the contrary.  But again, it seems to be the logical consequence of my friend’s argument that you cannot possibly compare in these circumstances.

So, in my submission, it is not correct to say that the position in Europe is different from here on the basis of those two cases which, in my submission, do not stand for those propositions, in fact give rise to the possibility of doing exactly what occurred in this particular instance.  In any event, in this country there are cases of Bulejcik of this Court, and indeed a number of other cases, Wong and Leung and the like, where indeed this has

occurred.  The issue, of course, when…..on the facts of this case, in the Crown submission appropriately so, directions are given.

GLEESON CJ:   I am not saying this is the correct outcome in this case, but at least it is a theoretical possibility that she could have partially limited the use.  She could have said, “You cannot use this for the first of the three purposes I have identified, that is, you cannot use it to say, ‘Yes, it is him.’  You could use it to say, ‘It might be him.’”

MS ABRAHAM:   Yes.  It would be open to a judge to do that.  There does not seem to be any reason why that could not be given in a circumstance where a judge thought that appropriate.

GLEESON CJ:   I mean, to take the example I gave earlier, if it had been a woman’s voice, you could use it, for example, to exclude him.

MS ABRAHAM:   Yes.  So, in the Crown’s submission, whether or not it ought to have been limited depends on the facts of the particular case.  In my submission, one cannot make the bold assertion simply because one is dealing with a foreign language, on the one hand, and English on the other, that is the end of the matter, as my friend seems to suggest.  There is indeed, as the Court of Appeal has observed, a number of cases in this country where there have been comparisons, either foreign to foreign or foreign to English, but of course it would depend on the circumstances of the case.  In those cases, one is talking about interpreters that had been described as “ad hoc” experts. 

The important thing, with respect, is that in this case when the learned trial judge did make the decision she did, she did have the benefit of all that material, by that I mean, having heard the calls, having heard the call in English, having heard the call in Igbo, and it is not insignificant, having heard him give evidence for the better part of the day.  One cannot, with respect, just brush that to one side. 

In the Crown’s submission, the context in which this occurred, it is not voice comparison in isolation or in a vacuum as my friend seems to suggest.  It is in the context of what, in the Crown submission, is a compelling case that he was the participant of those conversations because of the material in those conversations, as I said, and in his notebook and the like.  Those are my submissions.

GLEESON CJ:   Yes, thank you.  Yes, Mr Game.

MR GAME:   Your Honour, at page 25, if that is an exclusionary category then there is no “cannot say” category.  In my submission, that is a “cannot say” category because “you would put the calls to one side” are the words that her Honour uses ‑ ‑ ‑

GLEESON CJ:   She does seem to go through three possibilities, does she not?  Logically, what she has done, on the bottom of 23 to the top of 24, she has recited the Crown argument.

MR GAME:   Yes.

GLEESON CJ:   Then following that on page 24 she recites the defence argument and then she seems to say there are three possibilities.  Either you could accept the Crown argument, which is possibility number one.  Then there is the intermediate possibility, which has not been mentioned by either the Crown or the defence, which is possibility number two.  Then there is possibility number three, which is the defence possibility.

MR GAME:   Yes, the defence possibility is you cannot draw anything from it, not that they were exclusionary.  That is not how he put his case.  He said you cannot use them.  If your Honour the Chief Justice’s reading of the third category was an exclusionary category, as I say, there would be no “cannot say” category.

GLEESON CJ:   She says:

didn’t sound anything like the accused’s voice, well then you would put the calls to one side.

MR GAME:   Yes, your Honour, but you would not put them to one side if it was exclusionary.  You just would not do that.  Nor would you look at the other evidence if you ‑ ‑ ‑

GLEESON CJ:   You would not put them to one side in any circumstances.

MR GAME:   Yes, you would.

GLEESON CJ:   I mean, it is significant, is it not, that these calls were made to his telephone number?

MR GAME:   Yes, your Honour, but you would put aside the comparison exercise.  You would not put it aside if they were exclusionary.  The other evidence would not be, as she says three lines down, “standing alone”.

GLEESON CJ:   It is a bit confusing because she says “you would put the calls to one side”.

MR GAME:   Yes, but this is all in the context of this directions about this comparison ‑ ‑ ‑

GLEESON CJ:   Yes.  I do not think that can be meant to be taken literally, because the calls were an important part of the Crown case, because they were calls about drugs to his telephone.

MR GAME:   Yes.  Your Honour, my submission about that category is that that category is put forward as a “cannot say” category and that is how Justice Grove read it.  Now, it is also said that there is no voice identification in this case, but the first category is definitely that and the second category has the Crown case being moved forwards by this comparison that the prosecutor invited.  It is not as though it is just restricted to:  is he a man, does he speak with a deep voice?  It is not restricted in that way at all.  It has the Crown case being carried forward, so it is not as though I have to succeed on the third category in order to succeed.  The first or second, their presence is enough.

I do not know if I made this clear enough before, but my point about Chenia and O’Doherty is that they show what common experience is.  Common experience is that there is now a whole scientific body of evidence about this which says one has to be terribly cautious ‑ ‑ ‑

GLEESON CJ:   Did the Court of Criminal Appeal hear these tapes played?

MR GAME:   I do not think they did.  I cannot remember whether they had them.  I am pretty sure that they did not.  Now, could I also mention – I see the yellow light has gone on, but there is one other thing I wanted to mention, which is that at the beginning defence counsel sought exclusion of the comparison exercise and her Honour did not give a specific ruling at this place, but it is apparent that she admitted it for that purpose.  That was before arraignment and empanelment.  Then shortly into the trial there was an objection to the English call.  At the end of the evidence, defence counsel in explicit terms sought an order limiting the use of the evidence.  That is in the supplementary book.  Her Honour refused the application and at ‑ ‑ ‑

GLEESON CJ:   Where do we find the application most conveniently?

MR GAME:   It is called a supplementary application book.

GLEESON CJ:   I have the book, but what page?

MR GAME:   Page 1.  Then there is a long debate about it, which I do not have time to go through, but it is rejected and then ‑ ‑ ‑

GLEESON CJ:   Did anybody at any stage of the trial argue for an intermediate situation, that is to say you could not use the evidence for the purpose of positively identifying the accused as the person, but you could use the evidence for saying it could be him?

MR GAME:   No, that is not how the case was put, but ‑ ‑ ‑

GLEESON CJ:   That is what I was trying to find out.

MR GAME:   No, your Honour.  That is not how the case was put.  Your Honour, that would require very careful directions and I did say before that her Honour had said that if the jury could not make the comparison she would not have, as it were, allowed the tapes to be played.  I do not know whether that is correct, but that is what she did say.  The red light is on, but could I just take you to page 22 in this supplementary book?  He asks for reasons at line 39.  Her Honour has never given any reasons and her Honour declines to give them and he does not get the reasons that he requested.

HEYDON J:   Is this a ground of appeal?

MR GAME:   No, your Honour, but it is an answer to a question that was asked before, which was were there any reasons.  That is all I wanted to say.

GLEESON CJ:   Thank you, Mr Game.

Having regard to the basis on which the application to limit the use of the relevant material was made at trial, we think there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed.

AT 2.26 PM THE MATTER WAS CONCLUDED