Nguyen v The Queen

[2002] WASCA 181

NGUYEN -v- THE QUEEN [2002] WASCA 181

Reported Decision:	(2002) 26 WAR 59
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 181
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:53/2001	Heard:	14 FEBRUARY 2002
Coram:	MALCOLM CJ ANDERSON J STEYTLER J	Delivered:	27/06/02
No of pages:	51	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed and application for leave to appeal against sentence granted but appeal dismissed
Category:	A
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Parties:	HUY DUC NGUYEN THE QUEEN
Catchwords:	Criminal law Evidence Identification Voice recognition Circumstantial evidence and evidence of intercepted telephone calls in Vietnamese language Admissibility of evidence of interpreter that the voice of a person identified as "Huy" was heard on nine telephone calls of which six incriminated the appellant Voice comparison based on interception of some 600 calls to and from the appellant's mobile telephone Whether direction to the jury adequate Criminal law and procedure Sentencing Drug importation Appellant knowingly concerned in importation of heroin equivalent to 134.8 grams pure Appellant also attempted to obtain possession after importation Concurrent sentences of 12 years with parole not manifestly excessive
Legislation:	Customs Act 1901 (Cth), s 233B(1)(c), (d)
Case References:	Osland v The Queen [1998] HCA 316 HG v The Queen [1999] HCA 2 Ryan v The Queen (2001) 75 ALJR 815 Aconi v The Queen [2001] WASCA 211 Barker v The Queen [2002] WASCA 127 Bulejcik v The Queen (1995) 185 CLR 375 Bulejcik v The Queen (1996) 185 CLR 375 Clark v Ryan (1960) 103 CLR 486 Domican v The Queen (1992) 173 CLR 555 Farich v The Queen (1998) 72 ALJR 1292 Festa v The Queen [2001] HCA 72; (2001) 185 ALR 394 Milirrpum v Nabalco Ltd (1971) 17 FLR 141 Murphy v The Queen (1989) 167 CLR 94 Quach v R [1999] WASCA 210 R v Bonython (1984) 38 SASR 45 R v Brownlowe (1986) 7 NSWLR 461 R v Foster and D'Anna (1992) 59 A Crim R 14 R v Harris (No 3) [1990] VR 310 R v Leung (1999) 47 NSWLR 405 R v Leunig (1999) 47 NSWLR 405 R v Morgillo, unreported; SCt of NSW; 28 July 1992 R v Smith (1986) 7 NSWLR 444 R v Smith [1984] 1 NSWLR 462 R v Smith, Ashford and Schevella (1990) 50 A Crim R 434 R v Turner [1975] QB 834 Radebe v The Queen [2001] WASCA 254 Roser v The Queen (2001) 24 WAR 254 Ryan v The Queen [2001] HCA 21 Smith v The Queen (1990) 64 ALJR 588 The Queen v Olbrich (1999) 199 CLR 270 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NGUYEN -v- THE QUEEN [2002] WASCA 181 CORAM : MALCOLM CJ

ANDERSON J
STEYTLER J

HEARD : 14 FEBRUARY 2002 DELIVERED : 27 JUNE 2002 FILE NO/S : CCA 53 of 2001

CCA 73 of 2001

BETWEEN : HUY DUC NGUYEN

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Evidence - Identification - Voice recognition - Circumstantial evidence and evidence of intercepted telephone calls in Vietnamese language - Admissibility of evidence of interpreter that the voice of a person identified as "Huy" was heard on nine telephone calls of which six incriminated the appellant - Voice comparison based on interception of some 600 calls to and from the appellant's mobile telephone - Whether direction to the jury adequate

Criminal law and procedure - Sentencing - Drug importation - Appellant knowingly concerned in importation of heroin equivalent to 134.8 grams pure - Appellant also attempted to obtain possession after importation - Concurrent sentences of 12 years with parole not manifestly excessive

(Page 2)

Legislation:

Customs Act1901 (Cth), s 233B(1)(c), (d)

Result:

Appeal against conviction dismissed and application for leave to appeal against sentence granted but appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr R A Mazza
Respondent : Mr D N Adsett

Solicitors:

Appellant : Alex Palumbo
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Aconi v The Queen [2001] WASCA 211
Barker v The Queen [2002] WASCA 127
Bulejcik v The Queen (1996) 185 CLR 375
Clark v Ryan (1960) 103 CLR 486
Domican v The Queen (1992) 173 CLR 555
Farich v The Queen (1998) 72 ALJR 1292
Festa v The Queen [2001] HCA 72; (2001) 185 ALR 394
HG v The Queen [1999] HCA 2
Milirrpum v Nabalco Ltd (1971) 17 FLR 141
Murphy v The Queen (1989) 167 CLR 94
Osland v The Queen [1998] HCA 316
Quach v R [1999] WASCA 210
R v Bonython (1984) 38 SASR 45
R v Brownlowe (1986) 7 NSWLR 461
R v Foster and D'Anna (1992) 59 A Crim R 14


(Page 3)

R v Harris (No 3) [1990] VR 310
R v Leung (1999) 47 NSWLR 405
R v Morgillo, unreported; SCt of NSW; 28 July 1992
R v Smith (1986) 7 NSWLR 444
R v Smith [1984] 1 NSWLR 462
R v Smith, Ashford and Schevella (1990) 50 A Crim R 434
R v Turner [1975] QB 834
Radebe v The Queen [2001] WASCA 254
Roser v The Queen (2001) 24 WAR 254
Ryan v The Queen (2001) 75 ALJR 815; (2001) HCA 21
Smith v The Queen (1990) 64 ALJR 588
The Queen v Olbrich (1999) 199 CLR 270

Case(s) also cited:

Nil

(Page 4)

1 MALCOLM CJ: On 15 February 2001 the appellant was convicted after a trial before Viol DCJ in the District Court at Perth on two counts, namely that:

(1) Between 16 and 18 November 1999 at Perth in the State of Western Australia and elsewhere the appellant was knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 (Cth) applies, namely, narcotic goods consisting of a quantity of Heroin being not less than the trafficable quantity applicable to that substance, contrary to par 233B(1)(d) of the said Act.

(2) And further or in the alternative that on 24 November 1999 at Perth in the said State the appellant did without reasonable excuse attempt to obtain possession of a prohibited import to which s 233B applies, namely narcotic goods consisting of a quantity of Heroin.

2 The appellant sought leave to appeal against his conviction on two grounds, but the second ground was abandoned at the hearing and deleted from the grounds of appeal by way of amendment. The appeal is on the single ground that:

"The learned trial Judge erred in law in failing to give to the jury a direction as to voice identification and voice comparison with respect to recordings of intercept telephone calls allegedly made by the appellant."

3 The appellant also applied for leave to appeal against the sentence imposed upon him by the learned trial Judge who sentenced the appellant to imprisonment for 12 years in each count with a minimum non-parole term of 7 years. The sentences were directed to be served concurrently.

The prosecution case

4 On 18 November 1999 a package was received at the Perth Mail Exchange. The package was addressed to Elizabeth Lisa, 4B, 72 Alexander Drive, Dianella. The parcel was x-rayed and police were alerted. The parcel was examined by Agent Taylor of the Australian Federal Police. He discovered in two Henna hair conditioner bottles two packages that contained Heroin. Later analysis showed that the combined weight of the packages of pure Heroin was 134.8 grams. The Heroin was then substituted by an inert substance and the parcel put back together again for a controlled delivery.

(Page 5)

5 There was no Unit 4B at 72 Alexander Drive, Dianella, but there was a Unit 4B at 92 Alexander Drive. On the morning of 24 November 1999 at 10.00 o'clock, Detective Price, impersonating an Australia Post delivery man, delivered the parcel to the premises at 4B, 92 Alexander Drive. It had earlier been discovered that 72 Alexander Drive was a single residential house and not a block of units. Detective Price went to the front door of Unit 4B and gave the parcel to the appellant. The appellant received the parcel and put it on a shelf in the kitchen at the unit. Early in the evening of 24 November 1999 police executed a search warrant at the unit and seized the parcel. They had found the package in a box on top of a cupboard in the kitchen of the premises. The appellant was arrested the same day and interviewed by police. He denied any knowledge of the package.

6 Police had earlier obtained telephone interception warrants and, on the basis of these, had intercepted in excess of 600 telephone calls. Nine of these calls were played to the jury. The Crown case against the appellant was that he had spoken by telephone from Hong Kong to a person in Australia to make arrangements to send the parcel containing the Heroin to Australia. The appellant had then taken delivery of the Heroin once it had arrived in Australia.

7 Evidence was led on behalf of the prosecution which established that the appellant was in Hong Kong between 4 and 18 November 1999. It was during this period that the package containing the Heroin was sent from Hong Kong. On the same day that it was sent, while the appellant was still in Hong Kong, a telephone call was made to his mobile telephone. The call was made from a telephone number in Perth. The appellant had his mobile telephone with him in Hong Kong. The telephone conversation was recorded. During the course of the telephone conversation the address at 4B, 92 Alexander Drive was discussed.

8 After returning to Australia, the appellant said he attended the premises at 4B, 92 Alexander Drive, Dianella. Prior to attending at the address, he contacted a real estate agent about the possibility of buying a unit at 92 Alexander Drive. On 23 November 1999 the appellant attended at Unit 4B, 92 Alexander Drive. While he was there he asked the occupant of that unit, one Mr Chan, if something had been delivered. He told Mr Chan that he was waiting for something. The appellant told Mr Chan that he should accept a delivery. The following day, 24 November 1999, the appellant went again to Unit 4B at 92 Alexander Drive. It was while he was there on that occasion that he accepted delivery of the package.

(Page 6)

9 The prosecution case at the trial was that the appellant was one of the speakers recorded on the tapes of nine intercepted telephone calls. The appellant admitted in evidence that he was the caller who made three of the telephone calls. The prosecution case was also that the appellant was involved in sending the parcel from Hong Kong to Australia and that he took delivery of it once it had arrived here.

10 The appellant denied that he had any involvement with the importation of the parcel containing the Heroin. While he admitted that he had been in Hong Kong in November 1999, he said his visit was for the purpose of seeing friends and relatives. He said that on 24 November 1999 he had gone to the address at Unit 4B, 92 Alexander Drive, Dianella to visit a friend. While there the parcel was delivered to him. He did not regard the parcel as having anything to do with him. He placed it on the bench in the kitchen, presumably for someone else to deal with.

11 On 20 November 1999 Detective Price received the parcel from Federal Agent Paynter and went to the address at Unit 4B, 92 Alexander Drive, Dianella. Mr Price had discovered there was no block of units at 72 Alexander Drive. Mr Price then went to Unit 4B and knocked on the door, but there was no answer. He left an Australia Post calling card. This card did not result in the package being collected. On 24 November 1999 Mr Price again went to Unit 4B to deliver the package. He arrived at about 10.00 am. He knocked on the door. After a few minutes an Asian male identified as the appellant opened the door. Detective Price said that he had a package for Elizabeth Lisa or Lisa Elizabeth. The appellant did not reply. Detective Price said the package was addressed to 4B, 72 Alexander Drive, to which the appellant replied, "4B here". The Detective said, "There's no units at number 72 Alexander Drive". Detective Price then said, "This is 92" to which the appellant said, "Yes 92". Mr Price asked "Is this your package?" and the accused said, "Yes, yes". In cross-examination Mr Price said he stood at the door talking to the appellant for no longer than four or five minutes.

12 Mr Chan was a student studying at Curtin University. He was residing at 4B, 92 Alexander Drive, Dianella. He said that he lived at that address with three friends named Kuan, Chai and Gu. On 23 November 1999 Mr Chan stayed at home from university because he was sick. He said he was visited that day by a man who he referred to as "Uncle". He had met this man previously. "Uncle" asked him if something had been delivered. He told Chan he was waiting for something. He also told Chan that he wanted to buy a house near his unit. The man told Chan that, if there was a delivery, he should accept it and he should put the package on

(Page 7)

top of a cupboard in the kitchen. On 24 November 1999 Mr Chan went to university in the morning and came home at about 5.00 pm. After 5.00 pm the man arrived. At about 6.00 pm the man left. Subsequently, the police arrived and took possession of a parcel within a kettle box that was in the kitchen on top of a cupboard. Mr Chan identified the man referred to as "Uncle" as the appellant.

13 A Ms Davis, who was a property manager employed by the real estate agency, was the manager of the property at 4B, 92 Alexander Drive, Dianella. Her evidence was that in May 1999 the premises were leased for six months to a Mr Bui. Ms Davis undertook inspections of the premises three months into the lease and again on 9 November 1999. On that day she noticed that there were mattresses all over the floor. The premises were vacated on 4 and 5 December 1999. In cross-examination she estimated that there were six or seven mattresses on the floor.

14 Mr Stephen John Perejmibida was a Detective Senior Constable with the Western Australian Police Service. He was on duty on 24 November 1999 and executed a search warrant issued pursuant to the Misuse of Drugs Act 1981 (WA) at Unit 4B, 92 Alexander Drive, Dianella. A video recording was made of the search. He found a Tiffany kettle box on top of a cupboard in the kitchen and inside that box was a parcel. Detective Senior Constable Boult gave evidence that on 24 November 1999 he assisted in the search of the premises at Unit 4B as exhibits officer. He compiled an exhibits log of things found at the premises that day. Detective Senior Constable Sean Anthony Miller interviewed the appellant at a Shell Garage in Thomas Road, Kwinana on 24 November 1999 and later conducted a search of the appellant's house at 6 Monterey Crescent, Warnbro.

15 Evidence was given by Surveillance Operative 35, a member of the Western Australian Police Service. On 22 November 1999 he performed surveillance duties outside Unit 4B, 92 Alexander Drive. At 9.40 am on that day he observed the appellant standing at the front of the units at that address. On 22 November 1999 at 11.07 am he observed the appellant enter the Commonwealth Bank at the corner of Walter Road and Grand Promenade, Dianella. Photographs were taken of the appellant leaving the bank. On 24 November 1999 he conducted surveillance duties outside the units at 92 Alexander Drive. At 10.04 am he observed a white Ford wagon bearing Australia Post markings enter the premises. Later that evening he observed the appellant on Brisbane Street in a red coloured Hyundai.

(Page 8)

16 Surveillance Operative 37 was a member of the Western Australian Police Service. On 22 November 1999 he undertook surveillance of the units at 92 Alexander Drive and observed the appellant standing on a grassed area outside the unit. On the following day he observed the appellant leave 92 Alexander Drive in a burgundy coloured Hyundai sedan. On 24 November 1999 he observed the appellant's vehicle arrive at the units at 92 Alexander Drive and park in a rear car parking bay. At 10.08 am he observed a white Ford Falcon enter 92 Alexander Drive and observed a male go to the door of Unit 4B. At 10.09 am the male person who went to the door departed.

17 Surveillance Operative 39 was also a member of the Western Australian Police Service. On 24 November 1999 he was undertaking surveillance at 4B, 92 Alexander Drive, Dianella. At 12.35 pm he observed a burgundy coloured Hyundai sedan leave that address.

18 Surveillance Operative 34 was a member of the Western Australian Police Service. On 24 November 1999 he was conducting surveillance on what he described as No 90 Alexander Drive. At 6.15 pm he observed a burgundy coloured Hyundai enter the units and at 6.55 pm he observed the same vehicle leave the units. Later in examination in chief he gave the address at either 92 or 90 Alexander Drive.

19 Surveillance Operative 4 was a member of the Western Australian Police Service. On 24 November 1999 he was on duty in the vicinity of Unit 4B, 92 Alexander Drive. Later that day at 5.00 pm he located a burgundy coloured Hyundai sedan parked on a verge in Brisbane Street, Northbridge. At 6.14 pm he observed the same vehicle arrive and park at 92 Alexander Drive, Dianella.

20 Evidence was given by Kenneth George Nicholson, the officer in charge of the Telecommunications Interception Unit of the Western Australian Police Service. Two telephone interception warrants were obtained. The first, Warrant H99057, was to intercept mobile telephone number 0409 593 301 and Warrant H99055 was to intercept mobile telephone number 0415 205 621. Compact discs were made of recordings of telephone conversations and these compact discs were tendered in evidence. The first of these telephone numbers was the number of the appellant's mobile telephone which was connected to the Telstra mobile telephone service. The second was the number of a mobile telephone used by a co-accused who was identified in conversations by the name of "Tran". The intercepts on the appellant's mobile telephone were made between 19 November 1999 and 3 January 2000. The intercepts on Tran's

(Page 9)

mobile service began on 11 November 1999 and were continued until 6 January 2000.

Evidence of Mr Colin Nguyen

21 The main witness for the prosecution was Mr Colin Nguyen, a Vietnamese Liaison Officer, employed by the Western Australian Police Service. Mr Nguyen has a Diploma of Interpreting and is an Accredited Level 3 Translator in English and Vietnamese languages. In 1999 he was requested to listen to telephone conversations recorded as a result of the two telephone interception warrants. He listened to more than 600 telephone calls. The most frequent callers were identified as "Mr Huy" and "Mr Tran". Mr Nguyen translated a certain number of calls which were transcribed. Altogether nine telephone calls were played to the jury and translated from the Vietnamese language into the English language by Mr Nguyen. Mr Nguyen also gave evidence that the voice he called "Huy" on the nine telephone calls played to the jury was the same voice he called "Huy" in the other approximately 600 telephone calls that he had listened to. When cross-examined Mr Nguyen agreed that he had never spoken to the appellant personally and that he was not purporting to identify the voice of the appellant as the voice of "Huy". The effect of his evidence was that he recognised the voice of the person, who identified himself as "Huy" in a number of the conversations, as a party to each of the telephone conversations about which he gave evidence.

22 Anderson J has given a full account of the substance and effect of Mr Nguyen's evidence and the evidence of the conversations captured on the electronic discs which were received in evidence and played to the jury, namely, exhibits Z1, Z2 and Y. I agree with his Honour's assessment of that evidence.

The appellant's evidence

23 The appellant gave evidence that he lived at 6 Monterey Crescent, Warnbro with his family. He was born in Vietnam and came to Australia in 1989. In 1993 he came to Perth and opened a bakery. He agreed that he went to Hong Kong on 4 November 1999 and returned to Perth on 18 November 1999. He said he went to Hong Kong to visit relatives and friends. In particular, he wanted to see a friend of his called Hai. He wanted to try and sponsor Hai to emigrate to Australia. Initially, he could not find Hai but ultimately he found him at a village out of the city.

(Page 10)

24 He denied sending any parcel to Australia from Hong Kong. On 22 November 1999 the appellant went to Perth to see a friend of his named John Huong. He went to see Mr Huong to help him with the forms required to sponsor Mr Hai to Australia. Mr Huong was too busy and, so, after that, the appellant went to 92 Alexander Drive, Dianella. He said he had seen a "for sale" sign outside 92 Alexander Drive. He telephoned the agent, using his mobile telephone. The agent was a Mr Sam Bazra. The telephone call was made from the street outside the unit. After that he saw a person that he knew come from one of the units. The person told him that he could come into his house to wait for the real estate agent. The person lived at Unit 4B and his name was Chan. While in the unit the appellant said he watched movies. Eventually, Mr Bazra called back and the appellant looked at the unit which was for sale, No 5B. After that, he went back to 4B and then he went back to John Huong's place.

25 The next day, 23 November 1999, the appellant went again to Mr Huong's place and then to Unit 4B, 92 Alexander Drive to watch movies. Mr Chan was at home that day because he was sick. The appellant denied that he had had any conversation with Mr Chan concerning the delivery of a parcel or package. He left the unit at about 2.00 pm. The following day, 24 November 1999, the appellant spoke to Mr Huong, who told him that he could do something for him in the afternoon. Mr Huong lives in Brisbane Street, Northbridge. The appellant said that, initially, he went to visit a cousin at 4 McCoy Street, Morley, but he did not see his cousin and so went back to 4B, 92 Alexander Drive. He went there at about 10.00 am and asked for Mr Chan. Mr Chan was not at home. While he was at the house a delivery person knocked at the door. The appellant said that the person asked him, "Is it No 4B?" to which the appellant replied, "Yes, No 4B". He took the parcel from the person and put it on a shelf. The appellant said he was not expecting a package or parcel. He said that after the package was delivered he went to sleep. He then went to Mr Huong's place where he picked up the forms. Later that day, the appellant went back to 4B, 92 Alexander Drive to see Mr Chan.

26 The appellant agreed that he had a mobile telephone, the number of which was 0409 593 301. He said that when he was in Hong Kong he did not always have that telephone in his possession and that others used the telephone. Of the nine telephone calls played to the jury, he admitted being involved in three of them, namely, two calls to one Sam Bazra, a real estate agent, and one call to his wife. He denied that he was involved in the six other telephone calls.

(Page 11)

Critical nature of evidence of Colin Nguyen

27 It is apparent that the evidence of Mr Colin Nguyen was critical to the prosecution case. Mr Nguyen was born in Vietnam and came to Australia in 1985 when he was aged 38. In Vietnam he was a qualified teacher of English as a second language. Following his arrival in Australia he completed a course of study in interpreting and translating at Technical College and had worked as an interpreter since then. He has a Diploma in Interpreting and had been accredited as a Level 3 Translator in the English and Vietnamese languages. He commenced work as a court interpreter in 1990 and acted in that capacity for some three years. After that he was employed as an interpreter by the Police Service. At the time he gave his evidence, he had given evidence in court on approximately 1,000 previous occasions in his capacity as an interpreter. In September 1999 he was seconded to the Telecommunications Interception Unit of the Police Service. The procedure adopted was that a police officer would monitor the calls and pass them on to him. He would then re-monitor all the calls and do summaries of the translation at the request of investigators.

28 In relation to the two warrants in the present case, he listened to all of the calls and provided summaries of them to the investigating officer. After reading the summaries, the investigating officer would ask for certain calls to be translated. He listened to approximately 330 calls pursuant to each of the two warrants, so that the total number of calls monitored was over 600. There was no challenge to Mr Nguyen's expertise or the procedure which he adopted.

Voice identification and voice comparison or recognition

29 In Bulejcik v The Queen (1996) 185 CLR 375, Toohey and Gaudron JJ at 393 – 395 distinguished between "voice identification", on the one hand, and "voice comparison" on the other. At 393 their Honours said that the leading New South Wales authority on voice identification was the decision of O'Brien CJ of Cr Div in R v Smith [1984] 1 NSWLR 462. In that case a murder took place during an armed robbery. The daughter of the victim heard the events taking place. When she heard the accused conducting his own defence nine months later in other proceedings, she identified him as one of the perpetrators. In a voir dire to determine whether the evidence of voice identification was admissible, O'Brien CJ reviewed the Canadian and United States authorities and some of the problems with voice identification. His conclusion at 477 was that:

(Page 12)

"… evidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime, or that the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the same very distinctive features as had the voice at the crime."

30 Toohey and Gaudron JJ commented on this decision as follows:

"O'Brien CJ admitted the evidence of the victim's daughter on the basis that, using their own recollection of how the accused conducted his own defence, the jury would be entitled to find that the accused's voice had 'highly distinctive features' which could 'leave an indelible mental impression' (R v Smith at 482). While the Court of Criminal Appeal (at 482) approved O'Brien CJ's statement of the law, it allowed an appeal on the basis that he had not adequately emphasised the need for the jury to be satisfied that the circumstances under which the witness subsequently heard the accused speak (as disclosed by a tape recording of the portion of the other proceedings the witness heard) were sufficiently similar to the circumstances in which she originally heard the voice. The Court said that it was for the jury to decide whether the voice in question demonstrated characteristics 'so unique and distinctive as to make acceptable the witness's claim that she could not be mistaken' (R v Smith at 457).

Smith was approved in R v Brownlowe ((1986) 7 NSWLR 461) and R v Corke ((1989) 41 A Crim R 292) (but distinguished because the voice identification was in conjunction with visual identification) and R v Brotherton ((1992) 29 NSWLR 95) (where ten minutes conversation two days prior to the crime would not have been regarded as sufficient to render voice identification admissible had there not been some visual identification also). However, courts in Tasmania (Greaves v Aikman (1994) 74 A Crim R 370 at 378 – 379) and Victoria (R v Hentschel [1988] VR 362 at 364, 369; R v Jones and Harris (1989) 41 A Crim R 1 at 7; R v Harris [No 3] [1990] VR 310 at 317. See also Miladinovic v The Queen (1993) 47 FCR 190, where Gallop J discusses the conflicting authorities but finds on

(Page 13)

the facts there was prior familiarity.) have declined to follow Smith, holding that lack of such distinctiveness as will have left an indelible mental impression goes to weight rather than admissibility (see generally Cross on Evidence, Aust ed, vol 1, par 1445). In R v Harris [No 3] ([1990] VR 310 at 318 – 323) Ormiston J examined the discretion of the trial judge to exclude evidence of voice identification where it was insufficiently probative."

31 As I have indicated, this was not a case of voice identification as such, but a case of voice comparison. As to voice comparison, Toohey and Gaudron JJ said at 394 – 395:

"The significance of these decisions lies in the use the jury were permitted to make of the accused's voice as heard by them in order to accept or reject the evidence of a witness that a voice heard at the scene of an offence was that of the accused. The present case is of course different because the jury had access to the voice itself, by means of the tape recording Ex D. The question is whether the jury might make a comparison of that voice with the voice of the accused as heard making an unsworn statement, together with the tape recording of that statement, in order to determine whether it was the appellant's voice on Ex D.

Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness.

Where two voices are being heard side-by-side, as occurred in the present case, the concern is not with familiarity or distinctiveness but whether the quality and quantity of the material is sufficient to enable a useful comparison to be made. By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a

(Page 14)

robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery. It is in this sense that counsel for the respondent stressed that, notwithstanding that the aim is still to identify the voice on the tape, the exercise is one of voice comparison rather than identification from memory.

As to the quality and quantity of the material being compared, clearly the greater the amount of material, the greater the similarity in the circumstances in which the voices were spoken or recorded and the greater the number of similar words used, the more useful the comparison. A jury would also benefit from hearing the material more than once so as to enable them to concentrate on both similarities and dissimilarities. Counsel for each side should have the opportunity to point out or emphasise particular similarities or dissimilarities to the jury. The defence may wish to call expert evidence where the jury may have difficulty in drawing a distinction between two voices of a particular nationality or dialect."

32 In the present case the jury were not asked to compare the appellant's voice as they heard it in the courtroom with another voice recorded in a different context and come to their own conclusion. They were asked to accept the evidence of a person familiar, both with the Vietnamese language and by listening to some 600 telephone conversations giving him experience with voices on numerous tapes, nine of which were exhibits, who identified the voice of the person referred to as Mr Huy on the tapes as being the voice of one and the same person, namely, the appellant, whose mobile telephone was used in all of the 600 or more telephone calls which had been intercepted, nine of which were telephone conversations with Mr Tran: cf R v Leung (1999) 47 NSWLR 405.

Directions to the jury

33 In Domican v The Queen (1992) 173 CLR 555 at 561 - 562, it was held that, where evidence by way of identification represents any significant part of the proof of guilt, the trial Judge must warn the jury regarding the dangers of convicting on evidence, the reliability of which is disputed. It was made clear that the jury must be instructed regarding the factors that may affect their consideration of identification evidence in the circumstances of the particular case. In addition, the jury's attention should be drawn to any weaknesses in the identification evidence.

(Page 15)

34 In the present case, the learned trial Judge, having reviewed the evidence, said:

"There are a number of questions for you to decide, but I have listed some which I think it will be important for you to consider. These are by no means a complete list, but some things which I think you should consider and will be part of your consideration. Firstly, obviously, was the accused the speaker Mr Huy on the phone in all those conversations, not only the three he admitted being involved in, but the other six. Do you accept the evidence of Mr Kuan to the required degree? Do you accept the evidence of Mr Price to the required degree? What do you make of the conversations and some of the things which were said?"

35 In the above passage the reference to "Mr Kuan" is a reference to the witness Mr Kien Chan who resided at 4B, 92 Alexander Drive, Dianella, who related his conversation with the accused (whom he referred to as "Uncle") regarding the delivery of the package to 4B, 92 Alexander Drive.

36 As to the telephone conversations, the learned trial Judge said:

"Various comments were made by counsel as to, for example, phone call 77, 'I'll come back on Thursday'; on number 91 the question of sending a letter; on 116 the details of 4B, the expression, 'Send it' and the expression, 'No need to sign for it'. Those things are matters for you to consider and give some meaning to; the reasons for the [appellant's] presence at 4B Alexander Drive and the number of coincidences that occurred.

Both counsel commented on this. Firstly, on the one hand, the defence counsel said they happen in life and they don't necessarily point to the guilt of the accused. On the other hand, the Crown Prosecutor said that there are too many and they're too significant to be overlooked by you. They are matters for you to consider plus the other matters that you obviously – but they are some questions, I think, which go to the root of your inquiry."

37 The learned trial Judge gave to the jury very detailed directions regarding circumstantial evidence and the inferences to be drawn from such evidence. It was made clear that before the jury could convict on circumstantial evidence, or reach any conclusion adverse to the accused on such evidence, the circumstances must not only be consistent with the

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guilt of the accused but must be inconsistent with any other reasonable conclusion. The jury were clearly directed that if the circumstances did not exclude a hypothesis which was consistent with the innocence of the accused or pointed to his innocence, then the jury could not draw an inference of guilt against him. Alternatively, the jury were directed that if they found circumstances proved and, taken alone or together in the manner he had described, they excluded any other reasonable conclusion, the jury were entitled to draw an inference from the circumstances that the evidence pointed to the guilt of the accused.

38 The learned Judge then continued:

"What are some of the circumstances that counsel have referred to and have been raised in evidence? One can make a list of some of them: firstly, the presence of the accused in Hong Kong from 4 to 18 November; secondly, that a parcel containing heroin was posted on 16 November; third, that the accused returned on 18 November – these are facts which are not in dispute and which are circumstances, it seems, that both counsel have commented on – next, the interaction of calls to and from mobile phones; next, calls from Hong Kong to Perth and vice versa; next, the accused's links with 4B before and during the relevant period; next, the arrival of the accused at the house on several occasions several days after the posting of the parcel in Hong Kong; next, the acceptance of delivery of the parcel by the accused and the putting of the parcel on top of the cupboard.

They are some matters which both counsel have commented on which are circumstances which exist. They are the sort of circumstances which you will consider and you will look at in the course of your deliberation, bearing in mind the process and the rules that I have mentioned. What you are required to do, Mr Foreman, Ladies and Gentlemen, is to consider the evidence and in particular whether you are satisfied beyond reasonable doubt that the accused committed the offence in count 1. If you are so satisfied then you will find the accused man guilty. If you are not satisfied you would find him not guilty, and the same process would be adopted in relation to count 2. Obviously, in relation to the two counts, although separate consideration is required and a separate verdict is required, there are matters which you will deal with in the course of dealing with the first which will flow over to the second,

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findings on credibility, findings on the phone calls, etc, etc, but nevertheless you must do so in the manner I have described."

39 The learned trial Judge directed the jury that the case against the accused was that, however the Heroin was obtained, his part in the importation was the arranging for it to be posted and delivered to a certain address in Australia. As the learned Judge directed the jury:

"So far as the Crown is concerned what the Crown says is, simply put, the accused was in Hong Kong at the relevant times between 4 November and 18 November; that certain relevant phone calls were made by the [appellant], or he was involved in them; that the content of the phone calls is relevant in that they give pointers to the arranging of the delivery, in particular call 116 where an address was given; that the [appellant] was home on 18 November; that 3 days later, that is, giving time for the delivery to take place in the normal postal time, the [appellant] began visiting the address and there were discussions with Mr [Chan] as to what was to be done with the parcel, if a parcel arrived; that there was a telling of the arrival by the [appellant] on the 24th and the acceptance of a package and the telling of Mr Price that it was his package, namely, the [appellant]; the placing of the parcel on the top of the kitchen cupboard, namely, the same place, the Crown says, that had been spoken to in those terms to Mr [Chan]; that the [appellant] didn't tell anyone else apparently of the arrival of the parcel; that therefore – and the clear ability of the [appellant] to deal with it.

The Crown says, in simple terms, that the [appellant] was involved in the arranging of the delivery of the parcel; namely, including the heroin to Australia, and was knowingly concerned in it and also attempted to possess that heroin by taking delivery of it knowing or believing it to be heroin. The expression of the Crown Prosecutor was that it was an overwhelming case against the [appellant].

So far as the [appellant] is concerned, he said he was in Hong Kong during those dates; that he was there for several purposes, including seeing friends and also to arrange some sponsorship arrangement or to look into that on behalf of a friend; that certain phone calls were made by him, but also his phone was available to be used by any number of other people who did in

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fact use the phone; that he was not involved in the six calls of which you have details and of which there are tapes, but was involved in three calls which were involved, as you know, when he was back in Australia. He said he had nothing to do with the sending of any drug from Hong Kong whilst he was there.

He agrees that he was at 4B Alexander Drive on various occasions for a variety of reasons: on the one hand to look at a house nearby; to see friends, on occasions to have a sleep there, etc, and you will remember the reasons he gave. He denies the evidence of Mr [Chan] and the evidence of Mr Price, saying he just didn't say those things that they said he said. He received the parcel, he said, simply because it was delivered there and he was the only person there. He was sleepy, received the parcel and then put it into the kitchen where he said he put it not on the table or on the floor but where it was out of harm's way on top of the cupboard.

He did not know what was in the parcel. He didn't have any belief that it was heroin and there was simply a coincidence, it is said I think by his counsel, that he was there at the relevant time and such coincidences would be quite normal. It is said on behalf of the [appellant] that there is not a sufficient basis upon which you could find beyond reasonable doubt, firstly, that he was knowingly concerned in the importation and/or, secondly, that he attempted to obtain possession of the parcel, including its contents."

40 It was in this context that the learned trial Judge then listed some questions which the jury should consider. His Honour said:

"These are by no means a complete list but some things you should consider and will be part of your consideration. Firstly, obviously, was the [appellant] the speaker Mr Huy on the phone in all of these conversations; namely, not only the three he admitted being involved in, but the other six. Do you accept the evidence of Mr [Chan] to the required degree? Do you accept the evidence of Mr Price to the required degree? What do you make of the conversations and some of the things which were said.

Various comments were made by counsel as to, for example, phone call 77, 'I'll come back on Thursday', on number 91 the

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question of sending the letter; on 116 the details of 4B, the expression 'Send it' and the expression, 'No need to sign for it'. Those things are matters for you to consider and give some meaning to; the reasons for the [appellant's] presence at 4B Alexander Drive and the number of coincidences that occurred."

41 His Honour then noted a submission by defence counsel that coincidences happen in life and did not necessarily point to the accused. On the other hand, counsel for the prosecution had submitted that there were too many coincidences which were too significant to be overlooked and pointed to the appellant's guilt.

42 The jury retired to consider their verdict at 10.54 am on 15 February 2001 and returned at 12.45 pm and found the appellant guilty on both counts.

Content of the telephone calls

43 The critical telephone calls were said to be those designated 77, 91 and 116, the texts of which were exhibited to an affidavit sworn by Alyson Ann Bradley on 4 October 2001. These were described by counsel for the Crown in his closing address as "the crunch calls". The "Huy" referred to in those telephone calls was said to be the appellant. There was evidence that these telephone conversations took place while the appellant was in Hong Kong on 15 and 16 November 1999. This was shortly before he returned to Australia on 18 November 1999 and about the time that the relevant parcel was sent to Australia. It was conceded by counsel for the appellant that if it was the appellant who was speaking on those calls, they were "particularly incriminating".

44 It is apparent from conversation 77 on 15 November 1999 that male 2, who answered the call, is referred to as "Huy". Male 1 who made the call told Huy, "Don't do anything else". A person referred to as "Khuynh" is said to have "just phoned". Huy said, "It has been done completely". The caller said it is "pretty bad" and suggested to Huy that he "… call Vietnam to talk to Khuynh to find out" and "He has just said, it is currently dangerous". Huy agreed to call back on Thursday.

45 In conversation 91 on 15 November 1999 a male called on the appellant's mobile telephone. The recipient of the call was identified as Tran. The two were possibly brothers or cousins because of the manner in which they addressed each other. The caller wanted to send a letter to Tran. Tran suggested that the letter be sent by fax. The caller said he

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"will plug the fax in". Tran said, "There is no fax here, I am not in the shop. It must be tomorrow morning". Tran gave the caller the telephone number and the fax number.

46 It is apparent from conversation 116 on 16 November 1999 that one party to the conversation gave to the other the address at 4B, 92 Alexander Drive, Dianella, WA, 6059. It is clear that the speaker from Hong Kong is going to "send it" and said, "You understand? There is no need to sign for it?". The recipient said, "Yes" and the speaker from Hong Kong said, "Is it okay?" and the other party said, "Yes".

47 In conversation 151 on 18 November 1999 Huy called Tran on the appellant's mobile telephone saying "Brother Huy here". He said that, "Today, someone is 'moving house', see if you can move house for me, okay?". According to the interpreter, Mr Nguyen, "moving house" is a Vietnamese expression which means "moving all furniture and belongings to a new place to live". Huy said he is at home. Tran said words to the effect that he will have to "check and see if … is it down there?". Huy said, "It is definitely today". This call commenced at 10.37 am.

48 Conversation 152 was between two unknown male persons on 18 November 1999 at 10.30 am. The caller asked the recipient if he is doing anything. The latter said he is "in the shop". He is asked when he will go home. He said only after he has finished making "banh". "Banh" can mean bread, cake or a pie. He is told to go home soon "or it would be too late".

49 Conversation 153 on 18 November 1999 was between Tran and an unknown male person at 10.40 am. Tran said, "… there is no-one now …". The caller said:

"Can any guy who … transports the goods … who comes to mow the lawn … at the door … the doorframe … place at the door … the doorframe is dirty … move it away … OK?"

50 Tran said, "What?". The caller said:

"Place at the door of the house … Yes, move it away, no need to pay any money, I will pay when it is finished."

51 Tran said, "That's OK". The caller said, "Nothing will happen … Is that OK?". Tran said, "Yes".
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52 These telephone conversations were on 18 November 1999 and all took place on the day the appellant arrived back in Perth from Hong Kong. There was nothing which directly incriminated the appellant in these telephone calls. They were, however, all made to or from his mobile telephone. It is very significant that the three calls made on 18 November 1999 were made after the appellant returned to Perth. It is apparent that they were a continuation of the conversations the subject of telephone calls between "Huy" and "Tran" when the appellant was in Hong Kong. They strongly pointed to the conclusion that the appellant was not only a party to the telephone calls made in Perth, but was also a party to the relevant telephone calls made in Hong Kong.

53 There were three further telephone calls, namely calls 30, 32 and 48. The first two calls involved the appellant telephoning a real estate agent, one Bazra. Both were made on 22 November 1999. The third call was made by the appellant to his wife on 24 November 1999. The content of these calls was not incriminating.

54 While the appellant denied that he was a party to the first six calls and, in particular, the first three, he admitted that he was a party to the last three. Those three calls constituted the comparison material. The evidence of Mr Nguyen was that the person identified as "Huy" was a party to each of the six telephone calls and by voice comparison was the same person who was a party to the last three calls admittedly made by the appellant. All the telephone calls relied upon were either made from or to the appellant's mobile telephone.

55 The appellant said that when he went to Hong Kong between 4 and 18 November 1999 he took his mobile telephone with him, but he said that it was used by a lot of people, including friends and relatives, who had free access to his telephone in Hong Kong. His evidence was that while he was in Hong Kong some $700 worth of calls had been made. There was no specific identification by him of any of the persons who had used the telephone.

56 The recordings of the telephone conversations relied upon by the Crown were played to the jury at the request of counsel for the appellant at the trial. A transcript of the translation of the conversations into English was put into evidence through the interpreter, Mr Nguyen. There was no objection taken at the trial in respect of Mr Nguyen's ability, qualifications, experience or otherwise to give the evidence which he gave, including the evidence of opinion that the person who admittedly made the last three telephone calls was one and the same persons who was

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identified as "Huy" and a participant in the incriminating telephone calls. In my opinion, Mr Nguyen's qualifications and experience as an interpreter in the Vietnamese language, which is his native language, coupled with the volume of material available from all the telephone conversations to which he had listened, appear to have provided a very sound basis upon which to make the comparisons which he in fact made. There was cross-examination directed to the issue whether he was right or whether he was wrong, but no objection or challenge to his expertise or qualifications to make the comparison was made, nor was there any other objection made to the relevance or admissibility of his evidence.

57 I agree with Anderson J that a submission by counsel for the appellant that the jury should have been warned that they should not themselves attempt a comparison of the voices should be rejected. There is no reason why the jury should not have done so, aided by the translation of their content provided by Mr Colin Nguyen. Recognition of a speaker by the sound of his or her voice is, as Brennan CJ said in Bulejcik at 381, "a commonplace of human experience". As such, the authorities cited by Anderson J make it clear that the members of the jury were entitled to make their own comparison.

Competence or ability of Mr Nguyen to make comparison

58 It was against this background that counsel for the appellant submitted in support of the ground of appeal that, while there had been no error in the admission of the evidence, it did not follow that the issue regarding Mr Nguyen's competence or ability to make the comparison was closed. That submission was made in the context that Mr Nguyen had listened to more than 600 telephone calls made to or from the appellant's mobile telephone. The tape recordings of the telephone calls relied upon by the prosecution in the Vietnamese language were played to the jury on the basis that the callers had identified themselves as "Tran" and "Huy" respectively. An English translation of the relevant telephone calls was provided to the jury.

59 In relation to telephone call 152, Mr Nguyen's evidence was that the caller was Huy and the receiver was Tran. When Mr Nguyen was cross-examined by counsel for the appellant, the following interchange occurred:

"Why do you say that? Let's just take the example of the person called Huy. The person speaking is always Huy. What particular characteristics identify him as Huy?---Well, sir, if you

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listen to the same voice every day for 2 or 3 months, I think you have some guts feeling. I don't have to be an expert, sir, but I know that's him."

60 It was suggested on behalf of the appellant that in this answer Mr Nguyen may have conceded that he was not a formal expert in voice comparison. This raises the question whether voice comparison is a recognised field of expertise and, if so, whether there was any evidence about it at the trial. In my opinion, in the absence of any such evidence and the absence of any objection to the evidence itself or to the qualifications or experience of Mr Nguyen to give it, it is too late to take this point. The evidence of Mr Nguyen was to the effect that, Vietnamese being his native language and having listened to all of the telephone conversations which he did, he became very familiar with the voices of the persons identified as Huy and Tran in the telephone conversations to which they were the respective parties.

61 In the light of that evidence, coupled with other evidence including the fact that "Huy" was using the appellant's telephone and the appellant's movements and other behaviour in relation to informing the person in the house at Dianella of the anticipated arrival of the package, etc, the foundation was laid for an inference that the appellant was "Huy" and implicated in making arrangements for the importation of the heroin and in attempting to obtain possession of it once it had arrived in Australia.

62 In my opinion, the evidence of the relevant telephone calls was relevant and admissible as voice comparison evidence. The jury were in a position to make their own comparison assisted by Mr Nguyen's expert translation of the telephone calls and his opinion, given in the context I have outlined, as a result of listening to the more than 600 telephone calls. In particular, he was qualified to give evidence that the person identified as "Huy" was a participant in the critical telephone calls, taking into account the amount of evidence available from other telephone calls, and in particular, the three telephone calls specifically relied upon by him for the purposes of comparison, which were admitted to be made by the appellant. In my opinion, contrary to the submission of counsel for the appellant, it was open to the jury, aided by the evidence of Mr Nguyen, to compare the voice of "Huy" with the admitted voice of the appellant in the last three calls.

63 In Bulejcik at 395 – 398, Toohey and Gaudron JJ referred to R v Smith, Ashford and Schevella (1990) 50 A Crim R 434. In that case, the jury were directed by the trial Judge to compare how Ashford sounded in

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an unsworn statement made from the dock with a tape recording alleged to have been made of his voice in order to decide whether it was his voice on the tape. The Court of Appeal in Victoria upheld the direction saying at 454:

"… in the present case the Judge gave carefully framed and detailed warnings to the jury as to any dangers in voice identification."

64 In this respect, Toohey and Gaudron JJ commented in Bulejcik at 396 that:

"… this was not truly a case of voice identification, but rather of voice comparison."

65 Their Honours also referred to R v Morgillo, unreported; SCt of NSW; 28 July 1992. In that case, Campbell J had directed the jury that they could not compare their memory of how the accused spoke for 35 minutes, when making an unsworn statement from the dock, with what was said to be the voice of the accused recorded on tape. The Judge adopted that approach on the basis of R v Smith, supra, namely, either the voice needed to be distinctive or there needed to be prior familiarity. The Crown contended that 36 minutes was not enough to generate prior familiarity, but Campbell J considered that the voices were not sufficiently distinctive for the issue of distinctiveness to be left to the jury. In Bulejcik, in the Court of Appeal, Carruthers J (with whom Hunt CJ at CL and Bruce J agreed) doubted whether the ruling by Campbell J was correct and suggested that a 40 minute unsworn statement plus replay would amount to prior familiarity. Carruthers J said in a passage quoted by Toohey and Gaudron JJ at 396:

"It was only a question of whether the appropriate comparison could be made. Of course, in making that comparison, it was necessary for the jury to be satisfied that they had heard sufficient to consider that they were familiar with the appellant's voice, bearing in mind that it is common ground that there is no distinctive quality in his voice …

I would have absolutely no doubt, having read the entire transcript and the entirety of his Honour's summing up, that the jury would have approached their task upon the basis that they would not have made a finding adverse to the appellant on the issue of voice identification without having been satisfied to the

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requisite standard that they had acquired sufficient familiarity with his voice."

66 Toohey and Gaudron JJ said in Bulejcik at 396 that the issue in that case was not whether Bulejcik's voice was so distinctive as to be embedded in the listener's memory, or whether the jury had prior familiarity. The question was whether there was enough material of sufficient quality to make the comparison and whether the jury were properly warned of the difficulties involved.

67 In the present case, the jury had the benefit of themselves listening to the relevant tapes as well as having the translation into English and the expert evidence given by Mr Nguyen of the comparison between the appellant's voice in the telephone conversations on his mobile telephone to which he admitted he was a party and the disputed telephone conversations involving the same telephone. Mr Nguyen was qualified to make that comparison both by his familiarity with the Vietnamese language and his study of the 600 intercepted telephone calls: R v Leung (1999) 47 NSWLR 405. That case was concerned with the Evidence Act 1995 (NSW) s 79 which provided that:

"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."

68 Whether expert evidence is admissible depends on the answer to two questions. The first is whether the field or subject is one on which expert evidence can be called. The significance of this is that the courts have sought to exclude evidence where the subject matter in question is one on which an ordinary person is as capable of forming a correct view as anyone else. The second question is whether the opinion in question is one based upon an organised body of knowledge or experience: cf R v Bonython (1984) 38 SASR 45 at 46 – 47 per King CJ; Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon CJ; R v Turner [1975] QB 834 at 841; Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ and Toohey J, and at 130 per Dawson J; Farich v The Queen (1998) 72 ALJR 1292 at 1295 per Gaudron J; Osland v The Queen [1998] HCA 316; (1998) 197 CLR 315; and HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 420 – 428 per Gleeson CJ.

69 While Osland and HG were decided in the context of s 79 of the Evidence Act (NSW), it would seem that the decision reflects the position

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at common law: cf R v Bonython, supra, although there can be no precise rules: Cross on Evidence (6th Aust Ed) at 813; and see Milirrpum v Nabalco Ltd (1971) 17 FLR 141 at 160 per Blackburn J.

70 I well understand and appreciate that in a case of voice identification, similar questions arise which need to be addressed as in the case of evidence of a physical identification. In my opinion, this case is not a case of that kind. In Bulejcik at 397 Toohey and Gaudron JJ made it clear that an appellate court would be "slow to depart from the trial Judge's assessment that material was of sufficient quality and quantity for the jury to make the necessary comparison". In that case their Honours said at 397 that the question was "whether the jury were given sufficient warning of the difficulties involved".

71 It was in this context that their Honours set out at 397 – 398 the passage in the joint judgment in Domican v The Queen, supra, at 561 – 562 in which Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stressed the need for a warning in cogent and effective terms of the dangers of convicting on identification evidence, which represents a significant part of the proof of guilt of an offence. Their Honours said that, while the terms of the warning need not follow any particular formula, it must be appropriate to the circumstances of the particular case. Specifically, "the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of that case' ". Attention must be drawn to any weaknesses in the evidence. Reference to counsel's arguments is not sufficient. The direction must have the authority of the trial Judge behind it. Further, their Honours said at 362:

"It follows that the trial Judge should isolate and identify for the benefit of the jury any matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

72 Their Honours went on to say finally:

"Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for. It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert (Cross on Evidence, Aust ed, vol 1, par 39,105, citing R v Tilley [1961] 1 WLR 1309; [1961] 3 All ER 406. In R v O'Sullivan [1969] 1 WLR

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497; [1969] 2 All ER 237, the Court of Appeal agreed with R v Tilley but recognised that, in practical terms, it may not be possible to prevent the jury from making a handwriting comparison. See also R v Smith (1968) 52 Cr App R 648). It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make comparison difficult and without a strong warning as to the dangers involved in making the comparison. This was not done in the present case."

73 The present case can be distinguished from Bulejcik in which the jury were invited to compare recordings of what was alleged to be the voice of the accused with the voice of the accused when he made an unsworn statement from the dock at his trial. In this case, the jury were directed that they would have to decide whether the speaker who identified himself as "Huy" was the accused (i.e. the appellant) in all of the nine recorded conversations in evidence, taking into account that the appellant admitted being the speaker in three of the calls which were not themselves incriminating. The jury were warned about drawing inferences and that they could only draw an adverse inference against the accused if they were satisfied that it was the only inference to be drawn. His Honour warned the jury that any circumstantial evidence must be consistent with guilt and inconsistent with any other conclusion. The trial Judge gave directions regarding the interception of the telehone calls to and from mobile telephones and the context in which they were made as follows:

"What are some of the circumstances that counsel have referred to and have been raised in the evidence? One can make a list of some of them: firstly, the presence of the accused in Hong Kong from 4 to 18 November; secondly, that a parcel containing heroin was posted on 16 November; third, that the accused returned on 18 November – these are facts which are not in dispute and which are circumstances, it seems, that both counsel have commented on – next, the interaction of calls to and from mobile phones; next, calls from Hong Kong to Perth and vice versa; next, the accused's links with 4B before and during the relevant period; next, the arrival of the accused at the house on several occasions several days after the posting of the parcel in Hong Kong; next, the acceptance of delivery of the parcel by the accused and the putting of the parcel on top of the cupboard.

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They are some matters which both counsel have commented on which are circumstances which exist. They are the sort of circumstances which you will consider and you will look at in the course of your deliberation, bearing in mind the process and the rules that I have mentioned."

74 No objection was raised by counsel at the trial to the summing up or the directions given to the jury.

75 The jury was not specifically asked to compare the appellant's voice as they heard it in Court with the voice identified as that of "Huy" in the intercepted telephone conversations. As a result of listening to all 600 calls over a period of about four months, Mr Nguyen became extremely familiar with the voices on the recordings and gave evidence that the same voice or speaker could be heard on all relevant recordings. The evidence at the trial consisted of a comparison of recordings to a known sample of the three recordings which the appellant admitted were recordings of his voice. The position at the trial was that the contested six recordings were being compared with a known sample of three recordings.

76 In my opinion, there was overwhelming evidence by way of comparison that the voice on the relevant and critical telephone calls was that of the appellant. This evidence was coupled with the fact that the appellant accepted delivery in Australia of the package, having been in Hong Kong and communicating with someone in Australia regarding a package being sent from Hong Kong. It was significant that the appellant admitted being a speaker on three of the nine calls; all of the calls were made on the appellant's mobile telephone; the intercepted telephone calls including arranging an address in Alexander Drive, Dianella; the voice on one of the intercepted telephone calls relied upon used the name "Huy" which the appellant's first name; the same voice called himself "May Ha" which is the name of the appellant's bakery created from the names of his children; the voice which used the name "Huy" said on the telephone, "I'll come back on Thursday". The following Thursday was 18 November 1999 when the appellant arrived back in Australia from Hong Kong; references were made in the intercepted telephone calls to the making of bread and pies, which was the appellant's occupation; the voice attributed to the appellant on the recorded calls leaves his mobile telephone number on an answering machine; and the relevant mobile telephone was seized from the appellant on 24 November 1999.

77 It was submitted on behalf of the appellant that the warning which should have been given should have included a general warning regarding

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the potential unreliability of this type of evidence and to also comment on specific aspects of the evidence in accordance with Domican v The Queen, supra, at 561 – 562 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. First, it was said that the jury should have been warned that voice comparison by reference to telephone calls is inherently less reliable than comparison made by reference to "live" conversations. It was said that this was so because the sound of a voice on the telephone was not the same as when the conversation is "face to face". This point may be of some validity in a case where face to face conversation was being compared with the voice on a recorded telephone call: cf Bulejcik, supra, at 394 per Toohey and Gaudron JJ. That is not the case here. The evidence was that the voice on the telephone in the disputed calls was the same voice as the voice on the telephone calls which the appellant admittedly made. In my opinion there is no substance in this contention.

78 Secondly, it was contended that the jury should have been directed to consider the quantity and quality of the recordings. As Toohey and Gaudron JJ said in Bulejcik at 395, the question is "whether the quantity and quality of the material is sufficient to enable a suitable comparison to be made". In this case, Mr Nguyen had listened to more than 600 calls on the appellant's mobile telephone. He compared the voices on the telephone and by comparison was able to identify the voice used by the person who identified himself as "Huy" as the same as the voice in both the admitted calls made by the appellant and the relevant disputed calls. The jury themselves had the opportunity to listen to the nine relevant telephone conversations. It was not suggested at the trial that the amount of material was insufficient to enable a comparison to be made. It was not suggested that the jury did not have ample opportunity to listen to the recordings of the relevant calls. Counsel for each side had the opportunity to point out similarities or dissimilarities to the jury.

79 Toohey and Gaudron JJ noted in Bulejcik at 395 that the defence may wish to call expert evidence "where the jury may have difficulty in drawing a distinction between two voices of a particular nationality or dialect". No such evidence was called by the defence in the present case.

80 It was submitted that the learned Judge should have reminded the jury that Mr Nguyen was unable to identify any particular characteristic about the voice he identified as being the voice of the person who identified himself on each of the nine critical telephone calls as the person who identified himself as "Huy" except that it sounded the same. In other words, it was a "gut feeling". In this respect counsel said that the evidence was similar to the impression by way of normal physical

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identification. In my view, Mr Nguyen was giving evidence after a study of some 600 calls on the telephone and then comparing the admitted voice of the appellant in three calls with the contested voice on the six disputed calls, including a call or calls in which the relevant speaker was identified as "Huy" and was also a party to a significant number of other calls. It no doubt required his expertise in and knowledge of the Vietnamese language to be able to express that opinion.

81 It was also submitted that there was nothing said by Mr Nguyen which identified anything about the voice of "Huy" which was distinctive. The effect of the evidence was that as a result of listening to all the various calls Mr Nguyen was able to recognise the voice of the person who identified himself as "Huy" as the speaker on a number of telephone calls and, in particular, the nine calls played to the jury.

82 It was submitted that in his evidence in Court the appellant referred to himself as "May Ha". With respect that is not correct. "May Ha" was a business name for the appellant's bakeries. The appellant did not suggest that was his personal name.

83 It was submitted that the trial Judge should have given the jury a direction that they should be careful before concluding that the voice in the relevant telephone conversations were the voices of the appellant and "Tran". In this respect, I agree with Anderson J that it would have been better if such a direction had been given for the reasons stated by his Honour. I also agree, however, that the evidence against the appellant was such that it was inevitable that any reasonable jury could not have come to any conclusion other than that it was the appellant who was speaking to "Tran" in the relevant telephone conversations.

84 In all the circumstances, I do not consider that the learned trial Judge was required to give any further directions beyond those which he had in fact given. In any event, if I am wrong about this, the present case is a clear case for the application of the proviso in the context that, even if it were to be concluded that the lack of an appropriate warning was an error of law, there was no substantial miscarriage of justice for the purposes of s 689 of the Criminal Code.

85 In my opinion, even without the evidence of voice comparison, there was a substantial body of evidence from which the jury would be entitled to conclude that the appellant was knowingly concerned in the importation. The facts that he was in Hong Kong at the time the importation appears to have been arranged, and there were discussions on

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his mobile telephone by persons using his telephone, together with his conduct after he returned to Australia, invited the conclusion that he was knowingly concerned in the importation. This evidence, together with the evidence of Mr Chan concerning his conversations with the appellant and the evidence of Detective Price, was such that it would have been open to the jury to conclude that the appellant was knowingly involved in the importation. In my opinion, there was a substantial body of evidence to sustain a finding on the part of the jury that, even if there had been a misdirection as contended on behalf of the appellant, no substantial miscarriage of justice has been made out.

86 This was a case in which, assuming that the arguments in relation to a misdirection concerning the voice comparison evidence were accepted, the case against the appellant was sufficiently strong to justify the conclusion that no substantial miscarriage of justice has occurred, so that the case falls within the proviso in s 689(1) of the Code. The effect of this conclusion is that in terms of the proviso, notwithstanding the absence of a warning or the inadequacy of the warning given to the jury, the speaker identified himself as "Huy". The question then is, was it open on the evidence for the jury to conclude that the voice was that of the appellant, given the evidence that the appellant's communication by telephone followed his identification of himself as "Huy". As I have already indicated, it was not only open to the jury to draw that conclusion, the evidence was such that the conclusion was inevitable.

87 For the reasons I have already indicated I do not consider that this was a case in which a further direction of the kind submitted was required. In my view the directions given by the learned trial Judge were adequate in the light of the circumstances and the nature of the evidence given by Mr Nguyen.

88 For these reasons I am of opinion that the appeal against conviction should be dismissed.

Application for leave to appeal against sentence

89 In passing sentence on the appellant his Honour Judge Viol said:

"There was a 3-day trial and you were found guilty by unanimous verdict of the jury of two charges; firstly, being knowingly concerned with the importation of heroin into Australia; and, secondly, that you attempted to obtain possession of that drug on 24 November 1989 [sic 1999]. The

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amount of heroin involved was 239.4 grams with a pure amount of 134.8 grams. The purity therefore was an average of 55.9 per cent, obviously a high degree of purity.

The evidence showed that you went to Hong Kong late in 1999 and whilst you were there you made arrangements to post a parcel containing the heroin to an address in Dianella which address you had arranged whilst you were in Hong Kong. The heroin was concealed in a package which fortunately was intercepted on its arrival in Perth and a substitute substance was placed in the package. You were present at the address when it was taken there. You had been there several times before and you accepted delivery of the parcel which was brought by a federal agent posing as a postie."

90 His Honour also said:

It was a well planned and executed operation which had the hallmarks of someone who knew exactly what they were doing. As I have said, fortunately your criminal intentions were frustrated by the customs authorities. It was suggested in written submissions from your counsel that you were a courier. I do not accept that submission. It is a reasonable and proper conclusion to draw from the evidence that you arranged delivery and played an important part in its departure from Hong Kong and receipt in Australia. The phone calls to and from Hong Kong involving you concerned the arranging of the delivery point in Australia.

There are a number of reasons why a sentence of imprisonment is the only appropriate disposition; firstly, the drug itself, heroin; secondly, the amount of the drug, which I've already mentioned and, thirdly, your part in the importation and receipt of the drugs. I note that the offences you have committed arise out of the same circumstances so that in turn the terms for each will be concurrent."

91 His Honour noted that the appellant was a successful businessman who had considerable assets. It was found that the offences were committed for financial gain; the appellant had shown "no remorse whatsoever" and did not co-operate in any way with the investigation into the offences. It was in this context that the learned Judge said:

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"There is no question of any rehabilitation being necessary. You are an experienced businessman in a stable work and family environment. Your family and businesses can be cared for by your wife and family and they appear to be financially secure. I note also that there was no evidence that you yourself are not reliant on heroin. There appear therefore to be few, if any, mitigating factors in this case."

92 Judge Viol concluded his sentencing remarks as follows:

"Simply put, for nothing more than financial gain you were prepared to import into Australia a drug which is having a terrible effect on our society and in particular our young people. I repeat what has been said by many courts; that this drug and its abuse strikes at the very heart of our society and leads to much of the other criminal activities the people of Australia have to contend with. Our courts have often said in recent times that there is a need to firm up – that is, to increase – sentences for these type of offences.

Having read the various cases and authorities, I consider that a sentence on each charge in this case of 12 years to be appropriate. There is no basis for any deduction in that term. There is nothing which has been done by you or said on your behalf which leads to any deduction from this head term. I fix in relation to the first count a period of 7 years before which you can become eligible for parole and the same minimum period applies in relation to the other matter. In other words, the sentences for both charges are the same but they are to be concurrently served."

93 The sentence was directed to commence from 15 February 2001. The appellant was informed that he would be required to serve a minimum of seven years before being eligible for parole.

94 The application for leave to appeal is made on two grounds, namely:

"1. The sentence imposed in respect of count 1 is manifestly excessive having regard to the quantity of the drug and the appellant's antecedents and lack of criminal record.

2. The sentence imposed in respect of count 2 on the indictment is manifestly excessive having regard to the quantity of the drug, the appellant's antecedents and lack

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of criminal record and the offence which constitutes an attempt to commit the more substantive offence of actual possession."

95 The application for leave to appeal against sentence is made on the single ground that the sentence of imprisonment of 12 years imposed by the learned Judge in respect of the sentence imposed in respect of count 1 was manifestly excessive, having regard to the quantity of the drug, the appellant's antecedents and lack of criminal record. His Honour accepted that the appellant was not "the mastermind" of the operation leading to the importation, but found that he played a major part. His Honour found that the operation was well planned and executed and that the appellant was involved for financial gain. It was submitted that the learned sentencing Judge erred in two respects. First, it was contended that his Honour erred when he said:

"There is no question of rehabilitation being necessary. You are an experienced businessman in a stable work and family environment."

96 It was submitted that the appellant's stable work and family environment and his otherwise good antecedents, including his lack of a prior criminal record, made him an excellent prospect for rehabilitation. Further, it was submitted that the remarks of the learned Judge showed that his Honour failed to give any weight by way of mitigation to the appellant's prospects of rehabilitation.

97 In my view the submission reflects a misunderstanding of the point which, somewhat inelegantly, the sentencing Judge was endeavouring to make. His Honour accepted that the appellant was an experienced businessman in a stable work and family environment. He managed a bakery and a restaurant. For whatever motive the offence was committed, the appellant was not a person with any prior record of offending. He was a first offender. In my opinion the learned Judge was taking the view that rehabilitation was not necessary, implying that the appellant was remorseful in respect of the offence, notwithstanding his plea of not guilty. In the context, the remorse would seem to have been related more to the fact that he had been apprehended and found guilty, rather than remorse for the commission of the offence. In my opinion, while it is necessary to take into account that the appellant was, prior to the commission of these offences, otherwise apparently a person of good character, that fact is entitled to very little weight, having regard to the seriousness of the offences of which he was convicted: cfRyan v The

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Queen [2001] HCA 21 at [23] - [25] per McHugh J; at [101] and [112] per Kirby J at [108]; and at [177] per Callinan J.

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his own defence on other charges and purported to recognise his voice as that of the offender. That is a very different case from the case before this Court. In R v Brownlowe (supra), which was a similar case to Smith's Case, two witnesses present at an armed robbery heard the voice of one of the offenders and four months later heard the accused speak during proceedings in a Court of Petty Sessions. They both gave evidence that the accused's voice was "similar" to the voice of the offender.

129 These are cases in which the critical question was whether, in the brief moment that the witness first heard the voice in question, the voice could have sufficiently impressed itself on the mind or memory of the witness so that the witness could say that the voice of the accused heard months later was the same voice or similar to it. As I have said, that is not this case.

130 In R v Harris (No 3) (supra), the evidence was of a police officer who had spoken to the three accused in several personal meetings and who purported to recognise their voices on intercept recordings of certain telephone conversations. Again, that is not this case. In Bulejcik v The Queen (supra), the issue was whether the appellant's voice was the voice on a tape-recording of conversations obtained through a listening device fitted to a police officer. The police tape was tendered in evidence and, in accordance with his right to do so under the procedures applicable in criminal proceedings in New South Wales, the appellant made an unsworn statement at the trial. The trial Judge invited the jury to compare the voice of the accused at trial with voices on the police tape. At the conclusion of the summing up, the jury requested to hear the recording made in court of the accused making his unsworn statement and this request was granted. The process in which they ultimately engaged was therefore to compare the voice of the accused in court, as they remembered it, with the voices on the police tape which they had in the jury room and, as well, to compare the recording made in court with the voices on the police tape.

131 It can be seen therefore that these cases are all distinguishable in point of fact and it does not necessarily follow that the warnings which were held to be necessary in those cases are warnings which would be appropriate in a case such as this. For example, in Bulejcik Toohey and Gaudron JJ held that the jury should have been warned about the dangers inherent in comparing a recording made in court with the voices on a hidden police tape. They should have been alerted to the different contexts in which the taping took place. This is not such a case. There was also the complicating factor in Bulejcik that the police tape contained a number of voices, so that the exercise required of the jury was not only

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to see if they recognised the appellant's voice on the police tape by comparing it with his voice and the recording of his voice made at trial, but also to see if they could distinguish his voice from other voices on the police tape speaking in "a particular manner" (per Toohey and Gaudron JJ at 397).

132 Warnings given by a Judge to the jury must be appropriate to the circumstances of the case: Smith v The Queen (1990) 64 ALJR 588; Domican v The Queen (1992) 173 CLR 555 at 561 - 562. The jury is to be instructed as to the factors which may affect the reliability of the evidence in the circumstances of the particular case.

133 In his written submissions, counsel for the appellant submitted:

" … that the jury should have been warned that voice identification evidence is often unreliable because human perception and recollection are prone to error. Even where a witness claims to be familiar with the voice such familiarity does not ensure that the identification of the voice is reliable."

134 That is a submission which would have been understandable if this was a case in which the witness was being called upon to compare the accused's voice with a voice which the witness had heard at some earlier time in different circumstances. In such a case, the witness must use his or her recollection of a voice heard on the earlier occasion in order to identify it as the voice of the accused. The dangers are obvious to the courts, but may not be obvious to the jury and special directions are required to bring them to the jury's attention. One can think of many factual situations which might call for a warning in particular terms. The witness may have heard the offender's voice speaking only a very few words, in anger, through a closed door. Evidence of the witness that the accused's voice heard in different circumstances, perhaps many months later, was the same voice which he or she heard at the scene of the crime would have at least two weaknesses. The opportunity which the witness had to become familiar with the offender's voice so as to be able to recognise it later was very limited; and secondly the lapse of time would be such that the factors for comparison are likely to have become blurred. These matters would need to be drawn to the attention of the jury in the context of the danger of misidentification. However, in this case, the jury were being called on to compare the recorded voice of the appellant in three mobile telephone calls with a recorded voice in six mobile telephone calls, all played to them at the same time. I think it would have been inappropriate for the jury to be warned of the dangers which arise from

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weaknesses in "human perception and recollection", to use counsel's words. In undertaking the comparison for themselves, they would not be relying on the accuracy of someone else's perception or on their or someone else's recollection.

135 As to whether Mr Colin Nguyen's evidence should have been the subject of a special warning with respect to the frailties of "human perception and recollection", once again, recollection was not an issue. Mr Colin Nguyen's evidence was that he listened to the voices of Huy and Tran daily during the life of the warrants - nearly two months - and his opinion as to the identity of the voices was formed in that time and not by casting his memory back.

136 It might have been better if the Judge had specifically warned the jury against an uncritical acceptance of Mr Colin Nguyen's evidence that the voice of the speaker "Huy" was the same voice as the voice admitted by the appellant to be his, but the failure to give a direction along those lines did not cause the trial to miscarry. The jury must inevitably have come to the conclusion that the appellant was the speaker. It was, after all, his mobile telephone service to and from which the six calls were made. He admitted taking the telephone with him to Hong Kong and using it while he was there. His explanation that the incriminating telephone calls in Hong Kong must have been made while someone else had his telephone is an explanation which has no vestige of credibility. No reasonable jury would accept, as a reasonable hypothesis, that one of the appellant's "friends" or "relatives" in Hong Kong surreptitiously used the appellant's mobile telephone not only to send, but also to receive calls from a conspirator in order to arrange a heroin shipment to Australia. It is a fanciful notion. Furthermore, it is conclusively disproved by the fact that three of the incriminating exchanges in the same tenor as those which occurred when the appellant and his telephone were in Hong Kong occurred between the two telephone services after the appellant had returned to Perth. The three calls on 18 November between the two mobile telephones were obviously a continuation of the earlier communications. There is no suggestion that any friend or relative or other person who might have used the appellant's mobile telephone in Hong Kong to communicate with "Tran's" service travelled back with the appellant to Perth. The only explanation which the appellant could give with respect to these communications on 18 November between his and "Tran's" service was that his cousin or nephew may have used his mobile telephone here. He did not attempt to explain why or how his cousin or nephew might have come to be communicating with "Tran" on that morning in the same tenor as the exchanges that had occurred while the

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telephone was in Hong Kong. In short, he gave no rational explanation for these communications and none is available other than that it was the appellant who made and received all six calls, three in Hong Kong and three here, in the course of arranging and implementing the importation of the package of heroin.

137 In his written submissions, counsel for the appellant further submitted that:

"Given that the Crown case was that three of the nine intercepted calls admittedly contained the voice of the appellant, it is submitted that it would have been inevitable that the jury would have embarked upon a comparison of the appellant's voice on the three admitted calls with the voice said by the Crown to belong to the appellant on the other six calls. In this regard, the learned trial Judge should have warned the jury that it should not embark upon such a comparison or, alternatively, if it did embark upon such a comparison, to do so with extreme care."

138 I cannot accept the submission that the jury should have been warned not to embark upon a process of comparison themselves. I see no reason why the jury are not entitled to compare voice recordings in order to come to their own conclusions. Voice recognition is not, of itself, an expert process. As Brennan CJ said in Bulejcik v The Queen (supra) at 381:

"Recognition of a speaker by the sound of the speaker's voice is a commonplace of human experience."

139 It is clear that it is permissible for the jury to make their own comparison: R v Smith, Ashford and Schevella (1990) 50 A Crim R 434 at 453 - 454. See also Barker v The Queen [2002] WASCA 127 as to how the jury may use exhibits.

140 As to whether the jury should have been given an instruction that they should be careful before concluding that the voices were the same, I do think it would have been better if some such direction had been given. The jury were listening to speakers in a foreign language and they might have been told to bear that in mind in attempting a comparison. On the other hand, it was not the Crown case that the only voice captured on the discs was that of the appellant. In such a case, the danger is that the jury will be overly influenced by the fact that both the putative voice and the accused's voice are of similar accent, when the explanation for that might simply be that it is the Vietnamese way of speaking. However, this is not

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such a case. In each of the six incriminating intercepts there were two voices in the Vietnamese language, so that not only did the jury have the opportunity to compare the putative voice of the appellant on the discs with his admitted voice, but also to compare and to distinguish (if they could) the admitted and putative voice of the appellant with the voice of "Tran". This would bring home to the jury that merely because the voices had a particular cadence, intonation or accent did not mean that the voices were those of the same speaker. In any event, I am of the opinion that in this particular case the failure to give a direction along the lines indicated did not cause the trial to miscarry. For the reasons I have already tried to explain, I consider that, no matter how strong the Judge's warning to the jury might have been, it was inevitable that the jury would conclude that the six communications in question each took place between the appellant and his co-offender "Tran". The factual issue was whether the person communicating on the appellant's mobile service with the other service was the appellant or might have been someone other than the appellant. On the objective evidence as to when the calls were made, the location of the appellant and the location of the appellant's mobile telephone service when the calls were made, no reasonable jury could have come to any conclusion other than that it was the appellant, not someone else, who was speaking on his telephone to "Tran".

141 Counsel for the appellant submitted in argument that evidence of voice recognition obtained by intercepting telephone conversations is "inherently less reliable than, if I can put it this way, live conversations" and the jury should have been warned of this and should have been given consequential directions. Once again, this is a submission that would have been appropriate if the jury had been called upon to compare the telephone intercepts with the live voice of the appellant. This was not such a case. The exercise in comparison which was undertaken by Mr Colin Nguyen and, it may be inferred, by the jury was an exercise in comparing like with like.

142 Counsel for the appellant further submitted that the jury should have been directed "to consider the quantity and the quality of the material and make a judgment as to whether it was sufficient to enable a proper comparison". This form of direction is required in cases such as Smith's Case (supra) and R v Brownlowe (supra) where the evidence is of an identification based on recollection of the offender's voice heard on an earlier occasion. It is necessary to alert the jury to the possibility that the witness was insufficiently familiar with the voice, in which case it would be unsafe to accept the witness' evidence of recognition. This is not that kind of case. In making their own comparison, the jury were not engaged

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in evaluating the evidence of a voice recognition witness, but in forming their own opinion as to the identity of the voices based upon their own sense of hearing. In considering the evidence of Mr Colin Nguyen, there could be no question about the quantity and quality of the material that was available to him for the purposes of comparison. I repeat that his opinion was not based upon any process of recollection, but was formed in the course of listening to more than 300 intercepts over the life of the warrant relating to the appellant's telephone.

143 Counsel for the appellant also submitted that the jury should have been given a special warning arising from the fact that Mr Colin Nguyen was not able to "give any particular characteristic as identifying the appellant's voice and that his judgment was based on a gut feeling".

144 This submission comes from the following evidence given in cross-examination:

"So the reality is that we are not in fact identifying the known voice of Mr Duc Huy Nguyen [sic] are we?---Who is Mr Duc Huy Nguyen, sir?

Good question. You're just identifying a voice and labelling it as someone called Huy, aren't you?---Yes.

And you can't say that that is the voice of a particular - and this may sound a bit quaint - real person. It's just someone we're labelling as Huy?---All I can say, sir, is in relation to all these calls there's only one person having this - the same voice every day and his name is Huy. That's all I can say; same person."

And later:

"Again, the similar proposition applies in the case of Tran; not in every phone call is the person you call Tran specifically identified?---I cannot identify them because I don't know them and I've never spoken to them, sir, but I know that there's two persons talking together. One is called Huy and one is called Tran. That's all I can say.

Why do you say that - let's just take the example of the person called Huy - the person speaking is always Huy? What particular characteristics identify him as Huy?---Well, sir, if you listen to the same voice every day for two or three months I think you have some guts feeling. I don't have to be an expert, sir, but I know that's him."

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145 Whilst it may have strengthened Mr Colin Nguyen's evidence if he had enumerated the means by which he was able to distinguish and thus identify the voice of "Huy", I am not persuaded that the fact that he did not do so was something which ought to have been especially brought to the jury's attention. It is ordinary human experience that voice recognition may be unerringly accurate without the person who claims to recognise the voice being able to analyse and explain the characteristics of the voice which sets it apart. Matters of intonation, duration of vowels, rapidity of speech, cadence, accentuation, timbre, pronunciation and syntax are means by which voices may be distinguished: R v Harris (No 3) (supra) per Ormiston J at 317. It is not to be expected that ordinary people, although well able to recognise voices which are familiar to them, would have the capacity to go through these points of recognition in the same way that a person trained in linguistics or phonetics may be able to do. The question for the jury to consider was whether Mr Colin Nguyen had sufficient quantity of material of sufficient quality in order to become so familiar with the two voices in question that he could recognise them so that his evidence honestly given could be safely acted on. The evidence as to the quantity and quality of material - at least 300 calls involving the appellant's mobile phone - was such that no reasonable jury could have come to any conclusion other than that this was sufficient for an ordinary person to become familiar with a voice. In my opinion, it would have been a misdirection to tell the jury that the evidence of Mr Colin Nguyen was less reliable because he did not provide an analysis of the kind referred to by counsel.

146 Counsel for the appellant submitted that, in addition to the above specific warnings, the trial Judge should have directed the jury that although people in everyday life make voice identifications, "what human experience also tells us … [is] that human judgment in these matters is prone to error". In my opinion, this is another way of formulating a submission already made to the effect that it was necessary to direct the jury with respect to the unreliability of human perception and recollection. I would answer this submission in the way that I have answered that submission.

147 In short, although I consider that the trial Judge ought to have given the jury warnings along the lines which I have indicated might have been given, I am of the opinion that, in the particular circumstances of this case, the failure to do so led to no miscarriage of justice because no reasonable jury could have come to any conclusion on the whole of the evidence other than that the six incriminating calls made to and from the appellant mobile service were made to and by him.

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148 In any event, I am of the opinion that the circumstantial case against the appellant was so strong that, putting the aural identification evidence to one side, it was inevitable that the appellant would be convicted. The appellant travelled to Hong Kong some two weeks before the package was sent from Hong Kong to Australia. His explanation for doing so and his account of his activities while he was there were unconvincing, to say the least. The appellant was in Hong Kong when the package was posted to Australia. He came back on the day on which it arrived at the Perth Mail Exchange. He was observed to be at the address in Dianella to which the package was addressed. He had been hanging about the address for some time. The package was not addressed to the appellant, nor to the occupier, but to a fictitious person. However, on being asked by the undercover policeman, "Is this your package?" the appellant accepted it saying, "Yes, yes." The Dianella address was not the appellant's property and there was no credible explanation for his presence there consistent with his innocence. The explanation which the appellant gave was altogether unconvincing. After receiving the package, he did not attempt to pass it on to the occupier of the premises, but put it inside a box which he placed in the top of a cupboard. There was evidence that the appellant had told the occupier of the premises, a Mr Chan (not "Tran", as counsel habitually called him), that the appellant was waiting for something to be delivered and that if the delivery occurred when he was not there, the delivered item should be put where it was ultimately found; that is, on top of a cupboard in the kitchen.

149 It is a case in which, notwithstanding the deficiencies in the Judge's summing up to the jury, it is appropriate to apply the proviso to s 689(1) of the Code: Festa v The Queen [2001] HCA 72; (2001) 185 ALR 394.

Sentence

150 Whilst I would grant leave to appeal against sentence, I would dismiss the appeal. This is essentially for the reasons given by Malcolm CJ to which there is nothing useful that I can add. Having regard to all the circumstances of the case, it is, in my opinion, impossible to say that the sentence was manifestly excessive, which is the only ground on which the appeal rests.

151 STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice and of Anderson J. So far as the appeal against conviction is concerned, I agree that the appeal should be dismissed, for the reasons given by Anderson J.

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152 So far as the appeal against sentence is concerned, I agree with the Chief Justice, for the reasons which his Honour has given, that the sentence could not be said to have been manifestly excessive. However, I do have a brief additional comment in respect of the appellant's contentions that his antecedents and lack of criminal record were not sufficiently taken into account.

153 It is plain, on the view of the majority in Ryan v The Queen (2001) 75 ALJR 815; (2001) HCA 21, that it would be an error for a trial Judge to disregard, entirely, an appellant's previously unblemished character and reputation (see McHugh J at [36] and [37]; Kirby J at [102] and [112] and Callinan J at [177]). There is some question whether the sentencing Judge sufficiently took the appellant's antecedents into account in this case, having regard for the fact that he said that there appeared to him to be "few, if any, mitigating factors". However, it seems to me that, taken as a whole, it appears from his Honour's sentencing remarks that he did accord some significance to the applicant's background and achievements (to which he specifically referred), but considered that in all of the circumstances of the case, no significant leniency could be given on that account. His Honour was, in my respectful opinion, entitled to arrive at that conclusion (see Ryan, above, at [35], per McHugh J and [112], per Kirby J).

154 I would consequently also grant leave to appeal but dismiss the appeal.