Morgan v The Queen

[2016] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Morgan v R [2016] NSWCCA 25
Hearing dates:	2 February 2016
Decision date:	26 February 2016
Before:	Simpson JA at [1]; Johnson J at [45]; McCallum J at [46]
Decision:	Appeal against conviction dismissed.
Catchwords:	APPEAL – conviction – voice identification evidence – admissibility of opinion evidence – Evidence Act 1995 (NSW), ss 76, 79 – whether ad hoc expert evidence within s 79 – no objection raised at trial regarding characterisation of opinion as ad hoc expert evidence – no determination made by trial judge – no error found APPEAL – conviction – Criminal Appeal Rules (NSW), r 4 – no objection taken at trial – no basis for the grant of leave – appeal against conviction dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5 and 6 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), ss 76, 79
Cases Cited:	Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 Honeysett v The Queen [2014] HCA 29; 253 CLR 122 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Morgan v R [2011] NSWCCA 257; 215 A Crim R 33 R v Irani [2008] NSWCCA 217; 188 A Crim R 125 R v Leung and Wong [1999] NSWCCA 287; 47 NSWLR 405 R v Madigan [2005] NSWCCA 170
Category:	Principal judgment
Parties:	Raymond George Morgan (Appellant) Regina (Respondent)
Representation:	Counsel: J Stratton SC/M Curry (Appellant) N J Adams (Respondent)   Solicitors: Chayana Miers (Appellant) C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/226933
Decision under appeal	Court or tribunal: District Court Date of Decision: 07 March 2014 Before: Huggett DCJ File Number(s): 2012/226933

Judgment

1. SIMPSON JA: On 28 October 2013 the appellant was arraigned in the District Court on an indictment that charged eight offences (of which the second was pleaded as alternative to the first). The first and third counts were of attempted break, enter and steal, in each case of the same bank premises at Alexandria, and alleged to have been committed, respectively, in the early hours of 11 July 2012, and later in the same day. The jury found the appellant guilty on each of these counts, and was therefore not asked to return a verdict on the second count, the alternative to Count 1.

2. The fourth count was of break, enter and steal, of a hardware store at Annandale, alleged to have been committed on 19 July 2012; the fifth was also of break, enter and steal, of a machinery shop at Drummoyne, allegedly committed later that day. The sixth count was of robbery in company, of a Mr Jack Rabinowitz, alleged to have been committed at Double Bay the following day, 20 July 2012. The jury convicted the appellant of each of these counts.

3. The seventh count was of assault with intent to steal, and the eighth of possession of an offensive weapon with intent to prevent lawful apprehension, both allegedly committed on 20 July. The jury acquitted the appellant of these counts.

4. On 7 March 2014 the appellant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years.

5. He now appeals against the convictions. He has not sought leave to appeal against the sentence imposed.

The Crown case

6. Since the grounds of appeal are relatively narrowly focussed, it is possible to refer to the facts alleged by the Crown only briefly. The Crown allegation was that the appellant committed all offences in company with two co-offenders, John Carr and Cecil Honeysett.

7. It was not in dispute that, at Vaucluse, on the evening of 25 June 2012, Carr and Honeysett stole a white BMW from its owner, Mr Jonathan Yee. The Crown did not allege that the appellant was involved in this robbery. It did allege that the vehicle was used in the offences of which the appellant was convicted.

8. Put briefly, the Crown case was that, sometime before 4.30am on 11 July, the appellant, Carr and Honeysett travelled in the BMW to Alexandria, where they attempted, unsuccessfully, to gain entry to the ANZ bank via an adjacent café. They made a similar, also unsuccessful, attempt later in the same day. These attempts gave rise to Counts 1 and 3 on the indictment.

9. On 19 July, again in the early hours of the morning, the three men drove in the BMW to Annandale, where they broke into a hardware store and stole a variety of items, including two sledgehammers. This was the subject of Count 4 on the indictment. They then drove to a machinery store in Drummoyne, into which they broke, and from which they stole two chainsaws. This gave rise to Count 5 on the indictment.

10. The following day, 20 July, the same three men drove to Double Bay. At about 8.00am, using one of the stolen chainsaws and one of the stolen sledgehammers, they smashed the window of a jewellery store and entered the premises. They demanded access to “the expensive jewellery”, a large quantity of which they stole. This was the subject of Count 6 on the indictment.

11. Having regard to the acquittal of the appellant on the remaining counts, it is not necessary to detail the Crown allegations in respect of Counts 7 and 8.

12. The appellant and Carr were arrested on 20 July 2012. Honeysett was arrested 5 days later. Both Carr and Honeysett eventually entered pleas of guilty to charges identical, or similar to, those faced by the appellant. The appellant remained in custody until 2 August 2013, when he was released on bail.

13. A significant issue in the trial concerned the identification of the appellant as one of the perpetrators of the offences. No witness visually identified him; although there was, in the evidence, some footage from closed circuit television at or near some of the premises where the offences were committed, it was not suggested that any identified the appellant; and the appellant made no admissions. The case against the appellant was largely circumstantial. The Crown therefore sought to make the identification of the appellant as a participant by voice identification, from evidence outlined below.

14. It is this evidence that gives rise to the sole ground of appeal on which the appellant ultimately relied.

The evidence in the Crown case

15. Evidence of observations of the separate offences was given by various witnesses. However, the evidence of identification of the appellant’s voice was derived from a listening device that, together with a tracking device, had been installed in the stolen BMW, pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW), on or about 3 July 2012, after the BMW was located at an address in Leichhardt. From that date until 20 July, when the appellant and Carr were arrested, the tracking device and the listening device recorded the movements of the vehicle, and the conversations of its occupants.

16. The Crown relied upon the recordings of those conversations, in part, to establish that the appellant was one of the participants in the offences. For that to be achieved, it was necessary that the Crown prove that one of the voices recorded from the listening device was the voice of the appellant. It did this by opinion evidence given by Detective Sergeant Bradley Goodhart, in circumstances that will be explored more fully below.

17. Initially, objection was taken to the admission of the evidence, and a voir dire was conducted. Following the voir dire, and after some discussion between counsel and the trial judge, a compromise position was reached, and Detective Goodhart’s evidence was admitted.

The grounds of appeal

18. Initially, four grounds of appeal were pleaded. They were:

“1.  The learned trial judge erred in admitting the evidence of Detective Senior Constable Goodhart because it was unlawfully obtained and infected by impropriety.

2.  The learned trial judge erred in admitting the ad hoc expert evidence of Detective Senior Constable Goodhart in relation to voice similarity.

[Detective Goodhart’s statement was made as Detective Senior Constable; he gave oral evidence as Detective Sergeant Goodhart.]

3.  The failure of defence counsel at trial to follow the instructions of the Appellant constituted a miscarriage of justice.

4.  The defects of the trial cannot be remedied by a new trial, such that a verdict of acquittal should be entered.”

19. At the hearing of the appeal, Grounds 1, 3 and 4 were abandoned. Submissions were made only in respect of Ground 2, asserting wrongful admission of evidence.

The voice identification evidence

20. It is necessary to explain the circumstances in which the voice identification evidence was obtained.

21. As mentioned above, the stolen BMW was used in the offences of which the appellant was convicted, and an authorised listening device recorded conversations that took place in the vehicle between 3 July and 20 July 2012. Detective Goodhart copied the recordings onto nine computer/audio discs, to which he listened many times, replaying and repeating the recordings, commencing on 19 September 2012. He noted that there were three distinct voices on the recordings; these he nominated as “M1”, “M2” and “M3”. He paid particular attention to the pitch, tone, speed of speech and accent of the participants in the conversations, and to what he described as “certain voice habits”, and the use of particular language. He noted that the participants addressed each other as “John”, “Reg” or “Cec”.

22. The appellant was arrested on 20 July 2012, and was taken into custody. He remained in custody until granted bail on 2 August 2013. During that time, he engaged in many telephone conversations with his de facto partner, and with others. It seems that telephone calls made by inmates in the custody of Corrective Services NSW are routinely recorded, for obvious and predictable security reasons. (Although s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibits interception of communications passing over a telecommunication system, subject to exceptions set out in the legislation, and notwithstanding the formulation of Ground 1 as pleaded, it was never suggested that the evidence of Detective Goodhart was obtained in contravention of that legislation, or, indeed, of any law. The circumstances in which these recordings came to be made need not, therefore, be explored.)

23. From 26 October 2012 Detective Goodhart obtained access, and listened to, the recordings of telephone calls to which the appellant had been a party while in custody. In all, between that date in February 2013, he listened to as many as 55 such telephone conversations. He did this expressly for the purpose of familiarising himself with the appellant’s voice, and to enable him to make a comparison with the voices recorded on the listening device tapes. (This is an adaptation of the technique used, for example, to identify the author of a handwritten document.) Having done this, Detective Goodhart concluded that the voice on the listening device recordings he had nominated as that of “M2” was the voice of the appellant. He described the appellant’s voice (from the Corrective Services tapes) as:

“… a deep male voice, which is throaty, stentorian and gravely [sic – gravelly] … clear and relatively easy to understand … [with] an accent that I associate with Australian Aboriginal males.”

24. He noted a coincidence of a particular (somewhat unusual) word (“Gronk”) used by the appellant in the Corrective Services NSW recordings, and by “M2” in the listening device recordings.

25. The evidence the Crown proposed to call from Detective Goodhart was set out in a statement dated 22 February 2013. Counsel for the appellant indicated his objection to the admission of the evidence. Accordingly, during the course of the trial, a voir dire was conducted (on 12 November, about 2 weeks after the trial had commenced). Detective Goodhart gave oral evidence and was cross-examined during that proceeding. On 13 November 2013 Detective Goodhart provided a supplementary statement, which caused a deferral of the argument to enable counsel to consider the additional material.

The objection to the voice identification evidence

26. Given that the ground of appeal asserts error in the decision to admit the evidence, it is important to understand the manner in which the objection was articulated, and the course of the discussion that followed.

27. It is apparent from the transcript that counsel representing the Crown proposed to put Detective Goodhart forward as “an ad hoc expert” along the lines approved in previous authorities: see, for example, Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180; R v Leung and Wong [1999] NSWCCA 287; 47 NSWLR 405; R v Irani [2008] NSWCCA 217; 188 A Crim R 125; R v Madigan [2005] NSWCCA 170.

28. Counsel for the appellant raised no objection to the characterisation of Detective Goodhart as “an ad hoc expert”; rather, from the start, he framed his objection in terms of the principles stated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. Put shortly, his objection was based on the assertion that Detective Goodhart had failed to identify the material upon which he relied to form his opinion. The nearest he came at any stage to taking a point based on Detective Goodhart’s expertise occurred when, having told the judge that his concentration was on the Makita v Sprowles argument, he sought to “reserve my position in relation to ad hoc experts”. He never subsequently sought to advance any argument that the evidence was inadmissible by reason of lack of expertise on the part of Detective Goodhart. Indeed, after much discussion, he expressly accepted that Detective Goodhart could give evidence of similarity between the voices recorded on the two sets of tapes. (On appeal, senior counsel noted that this acceptance was in conflict with the decision of this Court in Morgan v R [2011] NSWCCA 257; 215 A Crim R 33, but recognised that the position adopted by counsel at trial precluded any argument on that basis.)

29. Detective Goodhart gave evidence in accordance with the agreement.

The argument on appeal

30. Notwithstanding the course of argument in the trial, senior counsel who appeared on the appeal valiantly sought to salvage an argument that the evidence of Detective Goodhart was inadmissible, not for Makita v Sprowles reasons, but by reason of s 76 of the Evidence Act 1995 (NSW) (see Morgan (supra)), and did not come within the exception provided by s 79.

31. Section 76(1) of the Evidence Act provides as follows:

“76(1)  Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

Section 79 relevantly provides as follows:

“(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.”

32. In support of his argument, senior counsel turned to the decision of the High Court in Honeysett v The Queen [2014] HCA 29; 253 CLR 122.

33. In Honeysett, the Crown had, at trial, relied upon evidence of an anatomist in order to identify the perpetrator of an offence by comparing closed circuit television images of the offender with known images of the suspect (Honeysett). It seems that the Crown sought to rely upon the anatomist’s evidence as coming within s 79 of the Evidence Act, and also (presumably, if that failed) as an ad hoc expert.

34. The High Court held that the evidence was wrongly admitted. The reason for the rejection was that, although the anatomist witness had relevant expertise (that is, specialised knowledge based on training, study or experience within the first limb of s 79(1)), the opinions he expressed in the trial were not based on that specialised knowledge so as to come within the second limb of that subsection. Accordingly, they did not come within the exception to the general rule stated in s 76 provided by s 79.

35. However, the witness’ evidence had also been tendered on the “ad hoc expert” principle. In the High Court, this position was not pressed by the Crown, and, accordingly, the High Court did not rule upon it. All the High Court said in this respect was:

“48  … 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 specialised knowledge based on the listener’s, or viewer’s, experience does not arise for determination in this appeal. The respondent acknowledged that [the witness] 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 [the witness’] opinion was admissible as that of an ad hoc expert.”

36. Senior counsel for the appellant contended that this was an expression of doubt by the High Court concerning the principles stated in the ad hoc expert authority. Implicit in this contention is the submission that this Court, as presently constituted, ought to depart from the established authority of the decisions mentioned above.

Resolution

37. The submission made on behalf of the appellant is untenable. Even had the point been taken at trial (which it was not) there is nothing in the High Court’s decision that “doubts” the propositions of law contained in the authorities. So far as can be gleaned from the report, the argument had been that the witness did not qualify as an ad hoc expert within those authorities – not that the principles stated in the authorities were wrong. The High Court is yet to rule upon the question of ad hoc expertise within s 79.

38. Moreover, even if the short observation of the High Court could be construed as an expression of doubt about the correctness of the “ad hoc expert” authorities, it is not now open to this Court, as presently constituted, to overrule those authorities. Prior to the hearing, no application was made for the convening of an enlarged bench to consider whether the Court should take that course. Although, at the hearing of the appeal there was some discussion about taking that course, given that the point under consideration had not been taken at trial, the issue was not pursued.

39. As is well known, appeals to this Court are limited by the provisions of ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). Section 6 relevantly provides as follows:

“6 Determination of appeals in ordinary cases

(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice …” (italics added)

40. The ground here relied upon pleads “the wrong decision of [a] question of law”. No question of law of the kind here sought to be raised was raised before the trial judge. It may be accepted that Detective Goodhart’s opinion was tendered under the principles relating to “ad hoc experts”. It cannot be the case that the judge wrongly decided a question of law that was not presented to her for determination. A ground asserting the wrongful admission of evidence is to be determined on the basis of the evidence and argument that was before the trial judge. A trial judge cannot be said to have erred in failing to determine an issue that was not put before him or her for decision.

41. Rule 4 of the Criminal Appeal Rules (NSW) provides as follows:

“4  Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

42. The point not having been taken at trial, the appellant needs leave to rely upon it. Given the clear position adopted on behalf of the appellant at trial, there is no basis for the grant of leave. In reaching that view, I have taken into account that there is no substance in the ground.

43. I would dismiss the appeal against conviction.

44. The order I propose is:

Appeal against conviction dismissed.

45. JOHNSON J: I agree with Simpson JA.

46. McCALLUM J: I agree with Simpson JA.

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Decision last updated: 26 February 2016