Onyeka Evans Nwagbo v The Queen

[2021] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0124

ONYEKA EVANS NWAGBO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2021
DATE OF JUDGMENT:	16 April 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 93
JUDGMENT APPEALED FROM:	[2018] VCC 865 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Attempt to possess commercial quantity of unlawfully imported border controlled substance – Judicial intervention – Substantial miscarriage of justice – When judge crosses boundary between roles of judge and advocate – Trial judge intervening in witness examination – Trial judge eliciting evidence from witness – Judicial criticism of counsel in presence of jury – Expert opinion evidence – Voice comparison evidence – Inadequate expert report admitted into evidence – Criminal Code Act 1995 (Cth) ss 11.1(1), 307.5 – Unnecessary to consider application for leave to appeal against sentence – Leave to appeal against conviction granted – Appeal against conviction allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC, with Mr P J Smallwood	Milides Lawyers
For the Respondent	Ms K Breckweg, with Ms R Champion	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA
NIALL JA
T FORREST JA:

1. The applicant Onyeka Evans Nwagbo pleaded not guilty in the County Court to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug.[1]  The indictment alleged that this offence was committed between 6 January 2015 and 13 January 2015.  After a trial lasting 11 days, the applicant was found guilty.  On 15 June 2018, the applicant was sentenced to 19 years’ imprisonment, with a non-parole period of 14 years.

   [1]Contrary to ss 11.1 and 307.5 of the Criminal Code (Cth) (‘Criminal Code’).

1. The applicant now seeks leave to appeal against conviction and sentence.  For the reasons that follow we have determined that leave to appeal against conviction must be granted and the appeal allowed.

Application for leave to appeal against conviction

1. The applicant initially sought to rely on six grounds of appeal.  Leave was given to the applicant to file an Amended Written Case and the grounds were substantially narrowed and revised.  They are:

Ground 1: A substantial miscarriage of justice has occurred in circumstances where the process by which the jury came to assess the competing expert opinions of Dr Storey-Whyte and Dr Rose became unbalanced.

Ground 2

: A substantial miscarriage of justice has occurred as a result of a series of events that took place in the Applicant’s trial relating to his evidence of obtaining a ‘second receipt’ on the night of

13 January, 2015.

Ground 3: A substantial miscarriage of justice has occurred as a result of a series of events that took place in the Applicant’s trial that were associated with the admission into evidence of the translated intercept conversations.

Ground 4: An aggregate of errors has resulted in a substantial miscarriage of justice.

1. In order to explain these grounds it is necessary to set out the structure of the prosecution case.

Prosecution case

1. An inspection of sea cargo was conducted by Chinese customs authorities on 9 December 2014.  Thirteen cartons of ‘body slimmers and massagers’ were disassembled.  Distributed among 10 of the cartons were nearly 25 kilograms of what appeared to be methamphetamine.  Subsequent analysis demonstrated that the

   
   

   10 cartons contained just over 19 kilograms of pure methamphetamine.

1. The Chinese Anti-Smuggling Bureau removed the methamphetamine, replaced the slimming devices and massagers and prepared the cargo for shipping.  The consignment details on the bill of lading were:

·Ye Tong Trading Co Ltd, Yang Jiang, Consignor.

·Richard Sarpong, 10 Dumfries St, Deer Park, Consignee.  The contact number given was [phone].  We shall refer to this as the ‘582 number’.

1. The Australian Federal Police (‘AFP’) were notified.  The consignment was shipped to Sydney by KS Global Air and Sea Logistics (‘KS Global’), seized by the AFP and transported to Melbourne.  An inert substance was placed in the consignment, packed in a manner that duplicated the packaging of the seized methamphetamine.  A surveillance device was also secreted in the consignment.

1. The 582 number was subscribed in the name of Jain Ram, a resident of Haddon in Victoria.  That subscription was false.  The prosecution case was that the mobile telephone to which the 582 number belonged was controlled and operated by the applicant.  This became the central issue in the trial. 

1. A ‘controlled delivery’ was approved[2] and took place on 12 January 2015.  The circumstances that surrounded that delivery formed the basis of the charge.  The prosecution contended that the applicant engaged in conduct intending to possess a substance that he knew or believed was a border controlled drug, unlawfully imported and in a commercial quantity.[3]

   [2]Police were issued with a controlled operation authority under s 15GI of the Crimes Act 1914 (Cth) on 24 December 2014, authorising police to attempt delivery of the consignment.

   [3]A commercial quantity of methamphetamine at the time of the offending was 0.75 kilograms:   Criminal Code Regulations 2002 (Cth) sch 4 item 117; Criminal Code s 301.10.

1. Many telephone conversations were lawfully intercepted. Most were in a Nigerian language, said by the prosecution to be Igbo,[4] and involved the 582 number either as instigator or recipient of the intercepted call. The prosecution engaged two interpreters who provided their interpretation of what was said. They were called to give evidence, and the product of their interpretations was read to the jury. It is unnecessary for present purposes to set out the content of each individual call. It is sufficient to observe that the person who controlled and spoke into the 582 phone is beyond doubt guilty of the offence charged. That person, over the course of several weeks, conversed with unknown male persons, both in Australia and Nigeria, largely in a Nigerian dialect, and seemed to direct the Australian end of the importation. In particular he directed the endeavours to take possession of the border controlled drug whilst avoiding detection. In one call on 6 January 2015 the 582 caller’s interlocutor is said to have referred to him as Onyeka. The prosecution relied on both the content of these calls and other evidence to demonstrate that the applicant was the user of the 582 number and thus a principal in the attempt to obtain the drugs.

   [4]There was controversy about which language or dialect was being spoken on the calls.

1. As we have said, the controlled delivery occurred on Monday 12 January 2015.  On that day an AFP officer, posing as an employee of a courier company, spoke to a male, said to be the applicant, using the 582 number.  The delivery address for the consignment was confirmed.[5]  A Nigerian-sourced text message then provided the 582 number with another address.[6]  A message from the 582 number to KS Global then advised that there was to be a change of address for delivery, and provided the second address.  After another mobile phone call between the

   
   

   582 number and another Nigerian number, during which the 582 user gave directions as to how the package should be dealt with, the reconstituted consignment was delivered to the second address, where it was left on the front verandah.

   [5]10 Dumfries Street, Deer Park.

   [6]23 Arnold Street, West Sunshine.

1. Later on Monday 12 January, at about 5:06 pm, AFP surveillance officers observed a Toyota Camry, towing an enclosed trailer, leaving the second address.  The trailer was observed to contain a number of boxes.  This was the reconstituted consignment.  A male using the 582 number directed a male using a Nigerian number that the consignment ought to be unpacked after dark, and that he wished to receive the ‘stuff’ the next day.  At about 7:15 pm, the Camry and trailer travelled to the car park of the Kealba Hotel in St Albans and remained there unoccupied until about 11:10 pm.  The car and trailer were then driven to Annesley Street, Braybrook, where the consignment was removed and placed on a white Toyota Hilux, registered in the name of Onyeka Nwagbo of 8 Wahgunyah Drive, St Albans.  The Hilux, driven by a man of African appearance, was driven to 91 Graham Street, Sunshine.  The boxes were opened and the consignment packages remained at that address, under surveillance.  The Hilux was driven to the Kealba Hotel, where visual contact was lost.

1. On Tuesday 13 January the user of the 582 number stated to a man using a Nigerian number that he had been followed to a ‘casino’, believed by the prosecution to be a reference to the Kealba Hotel, where he had lost the tail.

1. At about 9:35 pm on 13 January the consignment was observed to be loaded into a Honda CRV and again driven to the Kealba Hotel car park.  It remained there until about 10:55 pm.  At about 10:04 pm a red Toyota Yaris, driven by a person said to match the appearance of the applicant, moved through the Kealba Hotel car park and later, at 10:44 pm, re-entered the car park and parked in a position overlooking that of the Honda CRV.  A male of African appearance then walked from the Yaris to the Kealba Pharmacy.  Shortly afterwards, the same man left the pharmacy, re-entered the Yaris and left the car park.  At about the same time, the Honda CRV left the car park through a different exit.

1. The Honda CRV was observed shortly thereafter parked outside an address in St Albans and, later, to be travelling along Taylors Road, St Albans.  Visual contact was then lost, although at about midnight the surveillance device that had been secreted in the consignment indicated that the consignment was being opened in the vicinity of Delray Crescent, Kurunjang.  A short time later this device indicated that the consignment was on the move and, at about 12:35 am on Wednesday 14 January, AFP officers observed a fire in a semi-rural location in Brookfield.  The contents of the fire included the substantially-destroyed remnants of 10 slimming machines.

1. The prosecution adduced evidence at trial from Dr Catriona Storey-Whyte, an independent consultant who professed expertise in the analysis of tape recordings, speech and language samples.  She opined that the voice of the applicant, as recorded in the taped police interview, was consistent with the voice recorded using the 582 number.  The consistencies between the two voices were, she said, highly distinctive.  This evidence was the centrepiece of the prosecution case and hotly disputed at trial.  It will be considered further under ground 1.

1. Telecommunication service 0410 552 549 (the ‘549 number’) was registered with Vodafone in the name of Mr Onyeka Nwagbo of 43 Leonard Avenue, St Albans.  An analysis of call charge records conducted by the AFP were said to demonstrate that both this phone and the phone associated with the 582 number were primarily located in the western suburbs of Melbourne in the period between 1 December 2014 and 14 January 2015.  At certain times both services were recorded as being located more or less simultaneously in areas other than the western suburbs, including Dandenong, Southbank, South Melbourne and Phillip Island, and various areas in Queensland and South Australia, including Helensvale, Ashmore, Surfers Paradise South, Upper Coomera, Dreamworld, and the Adelaide central business district.  The prosecution contended that this ‘telephone mapping’ evidence circumstantially supports the hypothesis that the phone associated with the 582 number was used by the same person who used that associated with the 549 number, namely the applicant.

The applicant’s case

1. The applicant gave evidence denying any involvement in the importation and offering explanations for the surveillance and telephone mapping evidence.  Dr Philip Rose, who professed expertise in speech science and linguistics, gave evidence criticising Dr Storey-Whyte’s methodology, although he offered no opinion himself on the actual voice analysis relevant to this case.  Mr Gerald Nweya, a linguist in the Department of Linguistics and African Languages at the University of Ibadan in Ibadan, Nigeria, was also called as an expert witness.  In substance, he said that the language spoken on an audio file of intercepted telephone calls was a dialect of the Igbo language, Onitsha Igbo, intermixed ‘with a bit of something else’, while the language spoken by the applicant as recorded by Dr Rose under controlled circumstances was a different dialect of Igbo, Wawa Igbo.  These were two different dialects spoken in different states of Nigeria.  The Wawa dialect was spoken in Enugu State in the north of Nigeria, and the Onitsha dialect was spoken in Anambra State, a commercial centre in the east of the country.

1. It follows from this summary that there was, in a practical sense, only one issue for the jury to determine — whether they were satisfied beyond reasonable doubt that it was the applicant whose voice was captured on the 582 number recordings.  If the jury were so satisfied, a verdict of guilty was inevitable.  If not, the prosecution case was very thin indeed.  In her charge the judge put it:  ‘Really, this case is all about identity and whether the person who was using that illicit phone, the 582 number, was Mr Nwagbo.’

Ground 1

1. Against that background, the first ground contends that, as a result of a ‘process’ that occurred during the trial, the jury’s evaluation of the expert opinions of Dr Storey-Whyte and Dr Rose ‘became unbalanced’.  This ground is so delicately worded that it tends to obscure the real complaint.  The true complaint under this ground is that the trial judge assumed the role of prosecutor in adducing the evidence of Dr Storey-Whyte, and in cross-examining Dr Rose.  Interwoven into this complaint is the further assertion that the judge repeatedly intervened in defence counsel’s presentation, often in the jury’s presence, and often in a hostile or pejorative manner.  The sum total of these interventions is contended to have so skewed the trial process as to constitute a substantial miscarriage of justice.

1. Before turning to the events at trial it is convenient to set out a summary of legal principles that have developed over time concerning judicial intervention.

Legal principles

1. The role of the judge is circumscribed by what the dynamics of an adversarial system require, as opposed to what would be required of a judge in an inquisitorial system.  Thus, Denning LJ observed in Jones v National Coal Board:[7]

   [7][1957] 2 QB 55 (‘Jones’).

The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure;  to see that advocates behave themselves seemly and keep to the rules laid down by law;  to exclude irrelevancies and discourage repetition;  to make sure by wise intervention that he follows the points made by the advocates and can assess their worth;  and at the end to make up his mind where the truth lies.  If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate;  and the change does not become him well.[8]

And Barwick CJ remarked in Ratten v The Queen:[9]

As Smith J rightly said in expressing the reasons of the Full Court in this case, ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence’.  It is a trial, not an inquisition:  a trial in which the protagonists are the Crown on the one hand and the accused on the other.  Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked … The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.[10]

[8]Ibid 64.

[9](1974) 131 CLR 510.

[10]Ibid 517.

1. The degree to which judicial interventions are permissible will vary from civil to criminal jurisdiction and from case to case.  Where a judge is the ultimate fact-finder, a more liberal approach to judicial intervention may be justified.[11]  After all, there can be no complaint about the trier of fact properly informing himself or herself of those facts and the opinions that surround them.  Where, however, a jury is tasked with determining the outcome, a judge will normally need to be more circumspect and leave counsel and the jury to perform their respective tasks.

   [11]Galea v Galea (1990) 19 NSWLR 263, 281 (Kirby ACJ) (‘Galea’), citing R v Matthews (1983) 78 Cr App R 23, EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146.

1. A judge goes beyond the scope of permissible judicial intervention in questioning witnesses if he or she appears to adopt the role of a party in the proceeding.  Leaving evidentiary and procedural rulings to one side, a judge cannot shape the content of the trial or convey to the jury the impression that he or she has taken a side in the dispute.  As Hansen JA said in Buchwald v The Queen:[12]

The question is ultimately whether, having regard to all the circumstances of the trial, including the length, terms and nature of the judge’s questioning, the judge’s intervention crossed the boundary between impartial judge and partial advocate.[13]

[12](2011) 38 VR 199 (‘Buchwald’).

[13]Ibid 229 [125].

1. There is no bright scientific line beyond which a judge may not venture:

The line that a trial judge walks when asking questions of a witness is a narrow one.  There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself.  However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice.  The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or the other of the parties.[14]

[14]R v Esposito (1998) 45 NSWLR 442, 472 (Wood CJ at CL) (‘Esposito’).

1. Nettle JA in R v Brdarovski[15] acknowledged the intangible, essentially subjective nature of any conclusion that the line has been crossed, but identified certain judicial conduct that was definitely over that line, wherever it was drawn:

Sometimes, it is a nice question whether a trial judge should ask any questions of a witness and if so how far they should go.  At such points views are liable to differ.  But, whatever differences in views there may be at the margin, there should be no doubts about the basics.  It is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case;  nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone;  nor to ask leading questions of an accused or any other witness in an endeavour to throw doubts upon the witness’s credit, particularly if the witness is the accused.[16]

These remarks were, obviously enough, made in the context of a jury trial.

[15](2006) 166 A Crim R 366 (‘Brdarovski’).

[16]Ibid [25].

1. It is permissible for a judge to intervene, even, if necessary, repeatedly, during evidence-in-chief and cross-examination of an expert witness in a judge-alone trial where the intervention occurs to ‘enable [the judge] to understand the technical points of the case’.[17]  Indeed, a judge is ‘bound to intervene’ in these circumstances.[18]

   [17]Jones [1957] 2 QB 55, 62 (Denning LJ).

   [18]Ibid 65 (Denning LJ).

1. Redlich JA observed in Buchwald that a judge has

a very broad discretion as to when to ‘descend … into the arena’.[19]  The judge may do so to clarify questions or answers.  Within reason and showing appropriate circumspection the trial judge may identify matters that may be of concern to the judge.[20]

[19]Yuill v Yuill [1945] P 15, 20 (Lord Greene MR).

[20]Buchwald (2011) 38 VR 199, 201 [5].

1. In that case, an application for leave to appeal arising out of a criminal jury trial, it did not appear to the appellate court that the impugned conduct was hostile or that the judge was taking the Crown’s side.[21]

   [21]Ibid 229 [127] (Hansen JA).

1. Further, such clarifying interventions should always be calculated to ‘promote the orderly elicitation of the evidence, not needlessly [interrupt] its flow’.[22]

   [22]Michel v The Queen [2010] 1 WLR 879, 889 [34] (Lord Brown JSC).

1. A judge may intervene, frequently if necessary, in order to maintain proper control over the proceedings and to ensure that witness examination remains fair and relevant.  In Anderson v National Australia Bank,[23] the trial judge

intervened frequently in the course of cross-examination of Bank witnesses by counsel for the Andersons.  But these interventions were, in my respectful opinion, no more than was required for the proper discharge of the trial Judge’s function of controlling the proceedings and, in particular, ensuring cross-examination was both fair and relevant to the issues.[24]

The judge had, correctly in the Court of Appeal’s view, deemed counsel’s cross-examination ‘open-ended’ and mostly irrelevant to any issue in dispute.  The judge’s interventions were therefore justified by ‘a quite legitimate concern to avoid unnecessary or unproductive cross-examination’.[25]

[23][2007] VSCA 172 (‘Anderson’).

[24]Ibid [83] (Maxwell P).

[25]Ibid [84] (Maxwell P).

1. It is impermissible for a judge’s interventions to have the effect of undermining counsel’s forensic plan or strategy.  Intervening, particularly in a criminal trial by jury, creates an especial risk of producing an unfair trial.  In Jones, Denning LJ considered it to be ‘at least possible’ that the trial judge’s interruptions were frequent enough to undermine the effectiveness of cross-examination.[26]  In the same judgment, Denning LJ said that in a criminal trial in an adversarial system

the very gist of cross-examination lies in the unbroken sequence of question and answer … Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.[27]

[26]Jones [1957] 2 QB 55, 65–6.

[27]Ibid 65.

1. A judge should not, during the course of questioning, raise a point which neither party had raised or sought to raise.  In Brdarovski, the trial judge intervened during cross-examination of the accused to question him on DNA, directed towards an issue the prosecutor had elected to leave alone:

The judge should not have questioned the applicant in the manner that he did … The prosecutor had confined his questions about [the accused’s] lie to the issue of credit and had concluded his cross-examination leaving untouched the reasons for the applicant changing his story.  It was not for the judge to create an issue where none existed.[28]

[28]Brdarovski (2006) 166 A Crim R 366, 374 [23] (Nettle JA).

1. Moreover, a judge should not, through questioning, convey scepticism about a witness’s evidence or his or her credibility.[29]

   [29]In Esposito the applicant’s counsel at trial had complained that the judge’s interventions during cross-examination conveyed ‘a scepticism and a clear partiality, that is, a disbelief as to [the accused’s] credit’:  at 463.  See also at 466, 467–8.

1. In R v Mawson,[30] the Court stated that it ‘is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice’,[31] and that such a departure ‘may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done’.[32]  Mawson concerned a jury trial involving charges of common assault and false imprisonment, in the course of which the trial judge asked more questions of both the complainant and the accused than both counsel combined, prompting the Court to observe:

Such an enumeration of the number of questions asked of the parties concerned in the conduct of the trial is, of course, by no means conclusive, and cannot be conclusive in determining whether there has been an excess of interference, but it does give an idea of the degree or extent of the participation or involvement of the learned presiding judge whilst the evidence of the two principal witnesses at the trial was being adduced.  Again, although it is not conclusive by any means, it also appears from the transcript that in two instances while under questioning by the learned judge, the accused man was provoked into asking that he be permitted to express what he was endeavouring to say to the jury.[33]

[30][1967] VR 205 (‘Mawson’).

[31]Ibid 207 (Winneke CJ, Adam and Barber JJ).

[32]Ibid 207–8.

[33]Ibid 208.

1. Judges possess the full range of human strengths and weaknesses.  In an adversarial system, it may be expected that judges of different temperaments may respond very differently to identical circumstances and it is unrealistic to expect unfailing wisdom seasoned with serene composure.  Judges may sometimes be belligerent and rude.  They can on occasions be confrontational and impatient.  They may be sarcastic and disdainful.  Whether the cumulative effect of such conduct will constitute a substantial miscarriage of justice will always be a question of fact and degree.  In Budd v Kambah Tea Tree Plantations Pty Ltd,[34] Heydon JA, in the setting of civil litigation, sanctioned the robust approach to the conduct of a trial adopted by the judge at first instance as a ‘modern technique, and a not unacceptable one,  particularly in a busy trial court under pressure from crowded lists’.[35]  Nettle JA, citing this observation in Anderson, remarked that trial litigation often called for ‘plain speaking, directness and sometimes asperity’.[36]  In the scheme of things, a trial judge should endeavour to avoid ‘truculence and discourtesy’, although ‘in any hard fought case’ it may well arise.[37]  The fact that it does is not necessarily determinative of the question whether there has been a substantial miscarriage of justice.  It is always necessary to ask whether the trial has been so compromised by the judge’s conduct as to no longer justify the characterisation of a ‘fair trial’.

   [34][2001] NSWCA 180.

   [35]Ibid [103].

   [36]Anderson [2007] VSCA 172, [95].

   [37]Ibid.

1. Judges should avoid denigrating counsel, particularly before a jury[38] (and, ideally, in its absence[39]).  It is a short step for the jury to conclude, because the judge had an issue with an accused’s barrister, that that judge considered the defence case to be without merit.[40]

   [38]Galea (1990) 19 NSWLR 263, 282 (Kirby ACJ). See also Matthew Groves, ‘Excessive Judicial Intervention’ (2021) 50(1) Australian Bar Review 139, 142.

   [39]See Piccolotto v The Queen [2015] VSCA 143, [31]–[35] (Redlich, Santamaria and Beach JJA) (‘Piccolotto’).  See also Pyliotis v The Queen [2020] VSCA 134, [60] (Priest, Niall and T Forrest JJA).

   [40]Percival v The Queen (2015) 49 VR 238, 255 [75] (Redlich, Weinberg and Osborn JJA); Piccolotto [2015] VSCA 143, [45].

1. In summary, the following propositions can be distilled from the authorities.

(a)               Whether judicial intervention will constitute a substantial miscarriage of justice will always be a question of fact and degree.

(b)              An adversarial system prescribes distinct roles to counsel and the judge, and the role of the judge is circumscribed by the dynamics of the adversarial system.

(c)               In jury trials, judges should be especially careful to avoid unnecessary intervention in the presence of the jury.

(d)              Judicial intervention in the presence of the jury ought not descend to denigration of counsel or counsel’s case.

(e)               A judge must not give the appearance of adopting the role of a party to the proceeding, nor appear as if that party’s partial advocate.

(f)               A judge must not shape the content of a trial, save for procedural or evidentiary rulings.  Hence, a judge must not endeavour to fill gaps in a party’s case, examine areas that the parties have left alone, nor endeavour to impact upon a witness’s credit.

(g)              A judge may intervene in order to understand technical issues in a case, or to endeavour to clarify those issues for the jury.

(h)              A judge may intervene to maintain proper control over proceedings.

Analysis

1. The applicant’s argument under ground 1 was that, the identity of the voice on the 582 number being decisive, the jury’s assessment of the conflicting expert opinions of Dr Storey-Whyte and Dr Rose was crucial.  This meant that a fair trial depended on the process by which the respective opinions were exposed unfolding in a fair and impartial manner.  It was argued that during the trial this process ‘broke down’.  This ‘breakdown’ was initiated by the inadequacy, in multiple respects, of the report by Dr Storey-Whyte, and was then ‘accelerated’ by the way in which the judge intervened in the oral evidence of both experts, elevating the inadequate report based on questionable expertise, while diminishing the criticism of it by

   
   

   Dr Rose.  The process was also exacerbated by the judge’s frequent hostile exchanges with defence counsel.  The result was, so the argument went, that the jury came to assess the competing expert opinions by way of an ‘unbalanced’ process.

1. The respondent submitted that the applicant’s contention that the jury’s objective assessment of the conflicting expert opinions was undermined at the outset by the inadequacy of Dr Storey-Whyte’s report was itself undermined by his trial counsel’s failure to object to its admissibility on that basis.  The respondent went on to argue that, far from skewing the process by which the respective opinions were assessed, the judge’s interventions in the examination of Dr Storey-Whyte, confined to clarifying highly technical evidence, assisted this process by ‘[leading] to greater expansion and explanation of the matters set out in the report’.  This, it was contended, did not amount to an endorsement of her opinion.  

1. Further, the respondent contended, the judge’s interventions in Dr Rose’s evidence did not diminish his opinion.  Rather, in putting to Dr Rose what Dr Storey-Whyte had said in her oral evidence, the judge ‘provided him with an opportunity to accept or to challenge that evidence which he would not otherwise have had’, again assisting the jury to make a full and objective comparison of the two expert opinions.  The judge’s lamentations that Dr Rose had not been shown a transcript of Dr Storey-Whyte’s evidence could be construed only as a criticism of defence counsel, and not of Dr Rose or his opinion. 

1. In our view this ground must succeed.  An examination of the nearly

   
   

   1,100 pages of transcript reveals difficult relations between the judge and defence counsel, a high level of judicial intervention, and, in our view, the very real possibility that the jury may have concluded that the judge took on the role of a party to the proceeding, filling in gaps in the prosecution case, and, at times, taking over cross-examination of the applicant or his expert witness, Dr Rose.  Further, we are concerned that, during her charge, the judge made a comment that the jury may have interpreted as denigrating a component of the applicant’s case.  We have concluded that the product of this ‘process’ has been to deny the applicant a fair trial and to constitute a substantial miscarriage of justice.

1. The problems were apparent from the commencement of the trial.  The counsel protagonists in this trial were very experienced, competent criminal practitioners.  The judge also is very experienced in conducting both criminal and civil jury trials.  At the outset, she was entitled to expect that both parties were ready for trial.  She was disappointed they were not and expressed this disappointment in emphatic terms.  Since it did not take place before the jury, her Honour’s expressions of disappointment cannot be the subject of legitimate criticism.  This did seem to set the scene, however, for some of the acrimonious exchanges that followed throughout the trial.  The judge described various pre-trial applications made by the applicant’s counsel as, variously, ‘very, very poor’, ‘just appalling’, ‘really sounding woeful’, again ‘just appalling’, and ‘a shemozzle’.  The judge said that she was ‘not going to put up with any more protracted delays … of which [she was] very critical in terms of what’s happened from the defence point of view’, that she did not ‘understand what [was] being put by … [defence counsel]’, and that she ‘[felt like she was] Alice in Wonderland’.  She noted that defence counsel had ‘been in this matter for a long time’ and that a request for a voir dire had been ‘sprung on the Crown at the last minute’.

1. In the face of these observations, defence counsel was hardly contrite and this did little to ease tensions.  A proposal by him to conduct a voir dire, said to underpin a permanent stay application, after the empanelment of the jury, provoked this exchange:

[DEFENCE COUNSEL]:  Just one thing apropos of all that — two things actually.  The first is that a voir dire need not precede the empanelment of the jury and the opening of the case and calling of evidence.

HER HONOUR:  Of course it has to precede the empanelment because otherwise how can I rule on the permanent stay application?

[DEFENCE COUNSEL]:  You could discharge a jury.  I’m just trying to save a bit of time.

HER HONOUR:  I’m not going to empanel and discharge a jury.  It just is nonsensical.  It’s a profoundly inefficient, expensive and highly unusual way to go about things.

[DEFENCE COUNSEL]:  All right.

HER HONOUR:  If there’s a voir dire required as a consequence of your late flagging of this issue, it should happen before empanelment because what is said in that voir dire, as you say, may well impact upon your application for a permanent stay.

1. The apparent hostility between defence counsel and the judge continued throughout the voir dire:

[DEFENCE COUNSEL]:  Given that you concede that it’s an unusual thing, I ask you again, sir, what were you — just the subject matter, I don’t want any conversations, just what was it about, shipping, football, drugs, clothes, whatever, what was it, sir, that you are speaking to a black man or black men in Adelaide about on this occasion, just the subject matter?---I guess it’s about some clothing that I’d [brought] back from Hong Kong.

HER HONOUR:  About some what?

[DEFENCE COUNSEL]:  Clothing brought back from Hong Kong.

HER HONOUR:  Clothing?---That’s gifts from a friend to a friend, that’s basically how it was described to me.

[DEFENCE COUNSEL]:  And had you just come back from Hong Kong?--- A little while before, yes.

To state the obvious, Mr Craig, you didn’t take the bus from Hong Kong to Darwin, did you?

HER HONOUR:  Come on, [Counsel], that’s a silly question.

[DEFENCE COUNSEL]:  I’m leading to something.

HER HONOUR:  Just ask, come on, let’s not muck around?---I think that’s an unrealistic question, sir.

[DEFENCE COUNSEL]:  All right.  Who paid for your airline ticket from Hong Kong to Darwin?---The people that had me going to Hong Kong.

1. A little later in the cross-examination on the voir dire this exchange occurred:

HER HONOUR:  He spoke about more than 6, 8 and 9, that’s the difficulty.

[DEFENCE COUNSEL]:  Yes, all right, I understand.

HER HONOUR:  You know, 1 and 2 look familiar?---Excuse me, sir.  Is your line of questioning trying to [implicate] me on more charges for this?

[DEFENCE COUNSEL]:  No, sir.

HER HONOUR:  [Counsel], I don’t know because this man has his rights and he is not obliged to answer any question that might implicate him in a criminal offence.  If you are suggesting to him that he has had drug dealings with one or other or more of these people on the paper or some other person, black or otherwise, then that is suggesting that he’s been involved somehow in a criminal offence.

[DEFENCE COUNSEL]:  Except I haven’t.

HER HONOUR:  Yes, you have.  You’ve asked him more than once?--- I believe you have, sir.

1. At the end of day two of the pre-trial argument, a few minutes after the exchange immediately above, the prosecutor raised a potential issue with the evidence of Dr Rose, the defence speech expert, who criticised Dr Storey-Whyte’s methodology:

[PROSECUTION COUNSEL]:  He bases his opinion on an attack on the methodology.  He says that the methodology does not enable for various reasons Dr Storey-Whyte to give the conclusion she does.  So he doesn’t say look, this sample is wrong, he says the methodology is wrong and the methodology is inadequate for its purposes.

HER HONOUR:  All right.  I’ll adjourn it over till 10.30 and hopefully someone can tell me what's happening.

[DEFENCE COUNSEL]:  Can I be heard on this, Your Honour?

HER HONOUR:  You can be.  I’m surprised you didn't raise it frankly.

[DEFENCE COUNSEL]:  I was waiting for my friend to sit down.

HER HONOUR:  When you sat there yesterday and smiled and nodded, we’ve agreed, yes, that the record of interview isn’t played.  It’s so fundamental, [Counsel].

[DEFENCE COUNSEL]:  Not to the defence case.

HER HONOUR:  Yes, well, it is.  I would have expected you to say, well, hang on, where does that leave the expert witness comparative analysis?  But instead you’re silent about it.  I raise it.  I tell [the prosecution] that they’ll have to consider their position, and now you say, oh, well, yes, you know.  So what do you want to say?

[DEFENCE COUNSEL]:  I’m not saying anything, Your Honour.

HER HONOUR:  You said you wanted to be heard.

[DEFENCE COUNSEL]:  I do.  For Dr Storey-Whyte now to be given something else and something new by way of a tape - - -

HER HONOUR:  It’s not suggested that she would be.  [Prosecution counsel’s] last comment was that he would inquire of Dr Storey-Whyte as to whether the no comment answers of your client were necessary for her to reach her conclusion, and if they weren’t they can be edited out as agreed by counsel.  Is that all that’s edited out?  I have never seen it, I’ve never looked at it.

[DEFENCE COUNSEL]:  That, it’s submitted, is bordering on fresh evidence, a fresh approach altogether.  We accept what Dr Storey-Whyte says and we will call evidence to say it’s nonsense.  That’s the state of the evidence, and [prosecution counsel] accurately told Your Honour that’s what it is, and we’ve agreed to it.  Now for this court, it’s respectfully submitted, to suggest that the Crown go about it another way is to create - - -

HER HONOUR:  I’m not suggesting anything.  I have suggested nothing.

[DEFENCE COUNSEL]:  You’ve raised the issue.

HER HONOUR:  [Counsel], I’ve raised how it is that the evidence can be called and the jury can evaluate the evidence if the basis for the comparative exercise isn’t there.  I have made no suggestion to the Crown as to how they should address that problem, none whatsoever.  [Prosecution counsel] is the one who has made the various suggestions, not me, and that’s on the record.   

[DEFENCE COUNSEL]:  Very well.  What we say is that any alteration now to the established evidence before this court, which has been before this court for a couple of years, and Dr Rose’s response, which has been with the Crown for ages, is what the evidence is.  If the Crown get nowhere with it or get somewhere with it it’s a matter for them and a jury.  But we certainly would not be consenting to the methodology now being changed in the manner that it’s been put.

HER HONOUR:  I’m going to stand down.

[DEFENCE COUNSEL]:  It’s fresh evidence.

HER HONOUR:  Counsel can have a discussion, [prosecution counsel] can get some instructions, and I will see what the state of play is tomorrow.  This is becoming a farce.  10.30 tomorrow morning.  Juries need to know.  We’ll say 2.15 for a jury.  Hope springs eternal yet again.  Thank you.

1. These exchanges, occurring as they did, before any jury was empanelled, were not harmful to the applicant, but they were the prelude to an unsatisfactory trial process.  In the last-extracted passage, the judge was critical of defence counsel for being silent about apparent deficiencies in the Storey-Whyte report.  In our view this criticism was misplaced.  Dr Storey-Whyte was an expert witness for the prosecution — to be called by them to provide a significant component of the circumstantial prosecution case.  Defence counsel had made the forensic decision not to object to Dr Storey-Whyte’s inadequate opinion as expressed in her report.  This was, we consider, an entirely rational forensic decision.  Had an objection been raised and allowed, there was a significant likelihood that the end result of that process would have been the production of a new, improved report, wherein specialised knowledge, observed and assumed facts and a solid reasoning path would be clearly enunciated.  For reasons that we will set out, the judge was entitled to be critical of the Storey-Whyte report.  Her criticism, however, ought to have been reserved for the party seeking to rely on this report.

1. The report in question was deficient in nearly all critical aspects required under s 79(1) of the Evidence Act 2008 (‘Evidence Act’)[41] and the relevant Practice Note.[42]  For convenience, the substance of the report is reproduced in an Annexure to these reasons.  It commences with the witness acknowledging that she had read, understood and complied with the Practice Note.  After describing her qualifications, the material examined and her instructions, the report proceeds to describe — it must be said, inadequately — Dr Storey-Whyte’s methodology, her observations and her conclusions.

   [41]See Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 604 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85] (Heydon JA).

   [42]County Court of Victoria, Practice Note PNCR 1-2014, 24 June 2014.

1. In an attachment to the report, Dr Storey-Whyte addressed para 4 of County Court Practice Note PNCR 1-2014:

Practice Note PNCR 1-2014 of the County Court of Victoria.

With regard to Section 4 of Practice Note PNCR 1-2014 of the County Court of Victoria, I make the following comments:

4(a) and 4(b) are addressed at the beginning of the report.

4(c)All opinion within this report is based on my specialist knowledge, and the training, study, research and experience upon which that knowledge is based.

4(d)No assumptions were made about any of the material presented to me, with regard to speaker attribution or identification.

4(e)All opinion is based on peer-reviewed research and publication and previous acceptability by Courts at all levels.

4(f)Any matter which may have required Nigerian dialect analysis were discussed with an interpreter.  Ultimately, however, there was sufficient English language and non-language-specific information on which to base an opinion.

4(g)I relied on the on-going quality control and current up-to-dateness (sic) of the manufacturers when using signal processing and voice analysis software.

4(i)I have emphasised any qualification of opinion and adhered to the presentation of opinion as developed by my professional association.  I have also indicated my assessment of the suitability of the sample for examination.

4(j)n/a

1. Paragraph 4 of the Practice Note sets out what is required to be stated in all expert reports tendered in evidence in criminal trials.  Apart from the expert witness’s identity and employer, and an acknowledgment that they have read the Practice Note and agree to be bound by it,[43] it requires that the report states ‘whether and to what extent the opinion(s) it contains are based on the expert’s specialised knowledge and the training, study [and] experience on which that specialised knowledge is based’.[44]  The expert’s report is further required to address how their specialised knowledge has been used in order to form the expert’s opinion, including describing and justifying the material, facts, assumptions, equipment, literature or research, and any tests or examinations carried out.  The expert must state any limitation or uncertainty affecting the reliability of either the methods used or the data relied on in forming their opinion.  This latter requirement is contained in

   
   

   sub-para (j), which Dr Storey-Whyte notably addressed with ‘n/a’. 

   [43]Paragraphs 4.1(a) and (b) as referred to in the extract of the report above.

   [44]Paragraph 4.1(c).

1. Paragraph 6.1(a) of the Practice Note provides, relevantly, that a party seeking to introduce expert evidence must serve a primary expert report as early as reasonably practicable and no less than 60 days before trial.  Paragraph 6.2 provides that that party may not introduce expert evidence if it has not complied with para 6.1 unless every other party agrees or the judge gives leave.  In this case the prosecutor did not seek leave to introduce further evidence beyond that referred to in the report and there was no agreement by the defence that such further evidence be introduced.  It will become apparent that most of the further evidence was introduced by the judge.

1. Considered in the light of the Practice Note and the similar requirements of the Evidence Act,[45] the report of Dr Storey-Whyte was woefully deficient.  So much was conceded, very fairly, by counsel for the respondent on this appeal.  There was no apparent proper basis or explanation for Dr Storey-Whyte’s conclusions, first, that ‘the voice of Mr Nwagbo is consistent with the voice of the male speaker on the telephone recordings listed in Appendix 1 and identified on the transcripts as NWAGBO’;  or, secondly, ‘[f]urther, taking into account the quality of the disputed sample noted above, I consider the distinctiveness of the consistencies between the samples to be Highly Distinctive’.

   [45]Evidence Act 2008 ss 76, 79(1).

1. In her report Dr Storey-Whyte did not adequately, or at all, explain how her field of ‘specialised knowledge’, if she had one, applied to the established and assumed facts so as to produce the opinion propounded.  Further, there was no proper explanation as to the identities or qualifications of the ‘interpreters’ referred to in her report or how they had assisted her in coming to her opinion;  the witness did not explain the use made of transcripts of the intercepted phone calls nor did she identify any underlying assumptions.  The witness also failed to identify recognised disagreements in the field of voice comparison.  As we have observed, defence counsel at trial was thus confronted with a dilemma:  to complain about the inadequacy of the supposedly expert report, dispute its admissibility, succeed, and then be confronted with a revised, ‘improved’ report with deficiencies cured;  or, to stay silent and cross-examine Dr Storey-Whyte on her original report, hoping to highlight both its and the witness’s deficiencies.  In our view, many experienced criminal advocates would have chosen the latter course and no criticism can be levelled at defence counsel for taking it.  In the absence of objection, however, the prosecutor determined to call Dr Storey-Whyte.

1. It is reasonably clear from the passage set out at [47] of these reasons that defence counsel strongly objected to any proposed evidentiary revisions to Dr Storey-Whyte’s report, and that both he and the prosecutor had agreed to contest this aspect of the case on the basis of the content of the two expert reports.  The prosecutor did not dispute defence counsel’s assertion that the evidence to be led was ‘what it is, and we’ve agreed to it’. 

1. This forensic choice, and the prosecution’s unwise determination to proceed on the basis of Dr Storey-Whyte’s ‘woeful’ report, created a difficult position for the judge.  Her options[46] were either to sit back, let these experienced barristers ‘slug it out’ and intervene when called upon to determine evidentiary issues, or, on the other hand, to take a more proactive approach so the jury might comprehend more fully the opinion evidence being led.

   [46]In circumstances where the defence had not made any specific waiver of the rules of evidence as provided for by s 190 of the Evidence Act.

1. The trial then commenced against this background of some hostility in the pre-trial argument coupled with flagrantly inadmissible opinion evidence being led without objection on the critical issue in the trial.

The trial

1. In this part of these reasons we shall reproduce various exchanges that occurred between the judge and defence counsel.  We shall indicate whether the exchanges occurred in the presence of the jury or in their absence, but otherwise we shall provide very little in the way of commentary on those exchanges.  The exchanges speak for themselves.

1. The trial commenced on 23 February 2018.  Late in the afternoon of the second day, a witness based in Nigeria, Mr Nweya, whom the defence had thought unavailable, apparently became available.  That witness’s evidence concerned the dialect of Igbo spoken by the voice on the 528 number, as compared to that spoken by the applicant in a voice and language recording conducted by Dr Rose and sent to Mr Nweya.  This exchange occurred in the absence of the jury:

HER HONOUR:  Why wasn’t it[47] provided as soon as Dr Nweya’s report was served?

[47]The judge was referring to the applicant’s language sample recorded by Dr Rose and supplied to Mr Nweya.

[DEFENCE COUNSEL]:  That was on the 30th.

HER HONOUR:  Yes, three weeks ago.

[DEFENCE COUNSEL]:  We were asked on the 5th to provide it.  If they’d asked us that day we would have done it.

HER HONOUR:  [Counsel], your instructor served Professor Nweya's report intending to rely upon it at the Crown.

[DEFENCE COUNSEL]:  Yes.

HER HONOUR:  It was a crucial basis of that report that the recording made by Dr Rose be included.  It’s so basic that all material provided to an expert on which he or she [bases] an opinion be provided.  That was provided to Dr Nweya provided a report.  You served the report but you did not serve and I used you collectively meaning the defence, your instructor acting on behalf of Mr Nwagbo, you did not serve the basis of that opinion.

You then wavered … as to whether you would or wouldn’t be relying on that opinion but you have not complied with the rules and hence the situation we find ourselves in today.  I will allow the Crown time.  I don’t know what else you want to say but it is apparent to me that as at the date of service of that report, on 30 January this year, now 25, 26 days ago the defence did not comply with the rules and there will be consequences for whatever delay is occasioned by that.

I have been critical already of the way the defence has gone about this case in a number of ways but this is just not on.  Here we are, we’ve got a jury waiting.  I was told when I was assigned this case late on the Friday before last that its estimate was two weeks.  We finally empanelled on what was it, Thursday afternoon.  We got underway Friday.  Here we are on Friday and we’re faced with this situation.  It’s just not on.  This is not a game of trench warfare.

There are rules to be abided by and the rules are so fundamental and should be known to all practitioners well and truly.  You serve an expert report and you serve the basis relied upon by the expert for that report.  It’s as simple as that, [Counsel].  So don’t go talking about we’re not obliged to do this, we’re not obliged to do that.  You are obliged once you serve an expert report to serve the basis for it.  It hasn’t been done and now over three weeks have elapsed.

[DEFENCE COUNSEL]:  When the Crown asked us for - given what Your Honour says - - -

HER HONOUR:  [Counsel], the Crown shouldn’t have to ask you for the recording upon which Professor Nweya’s report was provided.  It should have come with the report.  It should have come with the report in the same way that any other documents relied upon by a professional person to give an expert opinion are served.

[DEFENCE COUNSEL]:  By the time the Crown asked for it, we actually, as we indicated the reason for the stay, it was not thought possible that we would [adduce] this evidence.

HER HONOUR:  It doesn’t matter.  Had you complied with it in the first place, the Crown would have had the recording.  Had they chosen to ignore it, we would have been [in] a different position from what we are now.  Instead, what they get is the material in an unopenable form on a Sunday.

[DEFENCE COUNSEL]:  First of all, it's not unopenable.  Even a Neanderthal like me could open it.[48]

[48]That is, Dr Rose’s voice and language recording.

HER HONOUR:  I don't care whether a Neanderthal like you, as you’re calling yourself, or anyone else wouldn’t open it.  It should have been served when that report was served.

It’s as fundamental as that.  You know the rules. Your instructor knows the rules and they haven’t been complied with.  I don’t want to get into a blame game but this is wasting time.  We’ve got a jury sitting in there.  We’ve got two interpreters that have been brought.

There are costs.  There are costs [and] consequences.  I’ll stand the matter down.  [Counsel for the prosecution], you do what you’re required to do. I’ll stand it down until 2.15.  I’ll send the jury away until 2.15.  I can’t see anything but for it.

[DEFENCE COUNSEL]:  Would it not be a better course and I really am indifferent as to whether this happens and I’m not saying this for any defence part as a reason, would it not be a better course to call these interpreters and see what they say?

HER HONOUR:  Why?  [Prosecution counsel] doesn’t know anything about the recording and he’s not in any position to deal with it.

[DEFENCE COUNSEL]:  Yes, that’s right.

HER HONOUR:  I’m not going to force the Crown into any re-examination in limbo.

[DEFENCE COUNSEL]:  I’m not saying that, no.

HER HONOUR:  What’s the point of calling them if [prosecution counsel] has no instructions?

[DEFENCE COUNSEL]:  I would have thought the Crown would be better armed in whatever it does or does not do.

HER HONOUR:  The Crown will make up its own position.

[DEFENCE COUNSEL]:  Very well.

HER HONOUR:  Thank you, [Counsel].

[DEFENCE COUNSEL]:  Very well.

HER HONOUR:  It doesn’t need to be advised by you, I’m sure.  Do you need [defence counsel’s] advice?

1. The days of 27 and 28 February were taken up largely with translations of telephone intercepts being read to the jury.  On 1 March, Dr Storey-Whyte commenced her evidence-in-chief.  Her oral evidence was led uneventfully.  The only judicial interventions were unremarkable exercises in clarification.  Cross-examination by defence counsel commenced.  On many occasions the judge intervened unprompted by any prosecutorial objection.  The following exchange took place in the presence of the jury:

[DEFENCE COUNSEL]:  Now, the first question I have to ask you is this.  Would you describe what you do, and what you did in this case, as an art or a science?---Bit of both I think, but it’s — it depends on how you define science.  I mean, what — what is science?  How do you define science?

Tell me this Dr Storey-Whyte?---If — oh.

HER HONOUR:  Well, I think the — I think that the — since you’ve asked the question, in order to get an answer you need to make it clear what you’re asking about and so the question must be framed so that Dr Storey-Whyte understands what you mean by science.

[DEFENCE COUNSEL]:  I think Dr Storey-Whyte was going to tell us Your Honour.

HER HONOUR:  Well, you’ve asked the question, is what she does, is it art or science.  Do you want to define science?

[DEFENCE COUNSEL]:  No, I don’t.

HER HONOUR:  All right.  You want Dr Storey to define it?

[DEFENCE COUNSEL]:  No, I haven’t asked that yet.

HER HONOUR:  Well, the answer doesn't mean much if it’s not defined.

[DEFENCE COUNSEL]:  All right.  Could I please continue Your Honour?

HER HONOUR:  You may but it won’t mean much to jury if the terms aren’t defined.

1. A very short time later:

[DEFENCE COUNSEL]:  All right. So before you – if you weren’t told what language it was, you wouldn’t have had the slightest idea, is that right?--- I would have had some idea, but I wouldn’t have been able to pinpoint it exactly as that.

Yes?---It was obviously a west — African language.

Yes.  But there are many west African languages?---Yes I know, but there’s many other sorts of languages too.

Yes, well I’m only - - -?---Right.

- - - concentrating on west Africa where Nigeria’s - - -?---Okay, yeah.

HER HONOUR:  Well don’t get into an argument with the witness please, [Counsel].

[DEFENCE COUNSEL]:  Well it might be the other way around Your Honour, with respect.

HER HONOUR:  Yes well just focus on — asking questions.

[DEFENCE COUNSEL]:  Yes?---Yep.

1. And only a minute or so later:

[DEFENCE COUNSEL]:  Now just before we go any further, do you know how many dialects Igbo has?---No I don’t.

No.  You wouldn’t dispute that it’s of the order of 20?---It could well be, yes.

Yes.  All right, well - - -?---How different, how different these dialects are from each other, is - - -

Thank you for that, thank you for that - - -? --- - - - another - - -

- - - but I haven’t asked the question yet.  Now - - -?---Sorry.

HER HONOUR: [Counsel] don’t get into an argumentative style.

[DEFENCE COUNSEL]:  No.

HER HONOUR:  Just don’t comment on the witness’s answers, just ask questions.

[DEFENCE COUNSEL]:  I appreciate that Your Honour.  It is very hard - - -

HER HONOUR:  Yes just go ahead.

[DEFENCE COUNSEL]:  - - - when there are - - -

HER HONOUR:  Just go ahead and don’t argue with me.

[DEFENCE COUNSEL]:  - - - It is very hard when there are no responses.

HER HONOUR:  Thank you.

1. A short time later:

[DEFENCE COUNSEL]:  Very well.  Now, were you, and I suggest you were, asked these questions and [gave] these answers, ‘Did you do any research?  Was it Wawa?’  Answer:  ‘It might have been, yeah.’  ‘Wawa’  Answer:  ‘Yeah, it might have been.’  Question:  ‘It might’ve been?’  ‘Yeah.’  ‘That ring a bell, does it?’  Answer:  ‘It rings a bell, yes, yep.’  Now, that’s what you said, all right?

HER HONOUR:  Well, hang on, go down to the end of the page.

[DEFENCE COUNSEL]:  All right. I - - -

HER HONOUR:  Put entirety of the relevant evidence.

[DEFENCE COUNSEL]:  How far?

HER HONOUR:  Down to the word, ‘Interpreter’.  And also, perhaps, over the page.

[DEFENCE COUNSEL]:  Look - - -

HER HONOUR:  Look - - -

[DEFENCE COUNSEL]:  - - - my friend can re-examine on this, Your Honour - - -

HER HONOUR:  No, you’re putting the question, put all of the [relevant] evidence, please.  And go down, I would suggest it’s appropriate, given that you’ve gone to the transcript, to go - over the page to line 4, to put it all in context.

1. A few minutes later, the following exchange took place, again in the jury’s presence:

[DEFENCE COUNSEL]:  Now, Dr Storey-Whyte, you were shown a report yesterday.  Only yesterday.  Is that right?---Yes, yes.

Which the Crown had had for some weeks.  Just take that from the — a report by, what’s his name, Gerald Nweya of the Department of Linguistics and African Languages, University of Ibadan, Nigeria?---Yes.

You were shown that.  And his opinion, which you read, suggested that the people on this tape were not speaking Wawa.  Correct?---Right, ah - - -

HER HONOUR:  Well, how many tapes did - - -

[DEFENCE COUNSEL]:  Yes, all right.

HER HONOUR: - - - Professor Nweya examine?

[DEFENCE COUNSEL]:  All right, I’ll put that more accurately.

(To witness) You were shown a report in which a tape from these — a sample in other words — a tape from these intercepted materials was listened to by Mr Nweya of the Department of Linguistics at Ibadan, Nigeria.

HER HONOUR:  Which one was it please?

[DEFENCE COUNSEL]:  It’s only said to be a telephone conversation between unidentified individuals.

HER HONOUR:  So it’s one of the 72 that we’ve had read to the jury.

[DEFENCE COUNSEL]:  Yes, one of — well, I presume so, yes.

HER HONOUR:  Yes, but which one is it?

[DEFENCE COUNSEL]:  We don’t know.  I don’t know.  I think it’s the one — one of those in the prosecution opening but I’m not quite sure which one Your Honour.

HER HONOUR:  Well, I think we need to know what is being spoken about in order for the witness to be able to answer your question.

[DEFENCE COUNSEL]:  Would Your Honour just pardon me.  I think we can probably find that.  It might take a minute.  Do you want to just pardon us.  It’s submitted.  It doesn’t matter but we’ll find it anyway.

HER HONOUR:  Well, it may well matter, I don’t know but there needs to be some clarity about what’s been put to the witness.  The witness has said she listened, for some weeks as I understood it and undertook a process that took some months, to all of the tapes.  If you’ve got an opinion based on a tape, it’s important to know which one it is.

1. This exchange occurred shortly before lunch on 1 March, again in the jury’s presence:

[DEFENCE COUNSEL]:  When we play it Dr Storey-Whyte, would you listen to it.  The transcript won’t help you.  The transcript won’t assist you, we’re going to listen to something?---I’m sorry it will.

Unless you speak Igbo?---I - - -

HER HONOUR:  Well allow Dr Storey-Whyte to be the judge of that?---M'mm.

[DEFENCE COUNSEL]:  Well all right.  Well do you speak Igbo?---No but I can - - -

HER HONOUR:  Let’s not get argumentative.  Dr Storey-Whyte said, it would, with respect help her.  She’s giving evidence.  We may not understand what’s in Dr Storey-Whyte's mind.

[DEFENCE COUNSEL]:  That’s an understatement.

1. Shortly after this, the lunch adjournment was called.  Cross-examination resumed immediately after lunch:

[DEFENCE COUNSEL]:  Now, before lunch I was asking you about a linguist in Nigeria?---Yes.

And not in relation to voice identification but in relation to actual language. All right?---Yes.

Now, first of all, you were — I think I’m just repeating now — you were told that this was what you were listening to with a view to try and to match was a dialect called Wawa?---Yes.

Someone told you that?---Yes, yeah.

And, it’s not your fault, but you were shown only yesterday, even though the prosecution had it for weeks - - -

HER HONOUR:  [Counsel], that’s possibly the fourth time you’ve mentioned that.

[DEFENCE COUNSEL]:  I won’t mention it again.

HER HONOUR:  There is a little bit of a back story to it which is completely irrelevant and I won’t trouble the jury with it.  If you will not trouble the jury to mention that fact for a fifth time.

1. Within one or two minutes of that exchange, defence counsel sought to challenge Dr Storey-Whyte about a prior inconsistent statement:

[DEFENCE COUNSEL]:  Thank you.  Now, just in terms of Igbo generally, do you understand it to be a tonal language?---Yes.

Yes.  Have you always understood to be a - - -

HER HONOUR:  Sorry, can you just tell the jury, what do you mean by a tonal language.

[DEFENCE COUNSEL]:  I’m about to go — I’m about to do that?---M'mm.

HER HONOUR:  All right.

[DEFENCE COUNSEL]:  All right.  Now a tonal language is a language which for example, has distinctive tones, high, low, occasionally a third one down stepped, or so on, is that right?---There can be up to six, yes.

There can be, yes.  Now, you gave evidence again about Igbo back in September 2015 and you were asked about Igbo being a tonal language, correct?---I don’t recall, but yes, yeah.

Well I will — I will remind you of it?---Yes.

HER HONOUR:  What page please?

[DEFENCE COUNSEL]:  Fifteen — sixteen?---Yeah.

Now I’m going to read you a long passage?---M'mm.

In fact, with the complete context of it.

HER HONOUR:  [Counsel], the usual reason for going to earlier transcript, is, if there might be some prior inconsistent statement, is that what you’re seeking to do?

[DEFENCE COUNSEL]:  No, this will go to her credit.

HER HONOUR:  Well, do you need to go a bit further, before you can go there?

[DEFENCE COUNSEL]:  No, not really.  This is purely as to her credit.  Whether Igbo is a tonal language or not, doesn’t matter, this goes to her credit Your Honour, and I’m putting something she said.  Now, Dr Storey-Whyte you were asked this, ‘Is Igbo a tonal language?’  Answer:  ‘No’.  Remember being asked that?---I do and I was wrong.

All right, thank you.  I won’t take you through the rest of it?---Yep, no, no.

All right?---And — so after that obviously I went just to check up and find out where I’d been wrong.

No.  All right, so, what I’m suggesting to you is, even in that answer, that’s just a blared answer to is it a tonal language and giving a quite diametrically opposed answer, were you — are you and were you prepared simply to make assumptions about in fact how good you are at what you say?---How good I am at what I say?

Yes.  Your opinions?---How good are my opinions?

HER HONOUR:  Hold on, [Counsel], are you asking this witness to in effect, give an opinion of the calibre of her work?

[DEFENCE COUNSEL]:  Yes I am.

HER HONOUR:  How can the jury possibly be assisted by this witness giving an opinion, that I’m really good at what I do?

[DEFENCE COUNSEL]:  By demonstrating that she has given answers in the past - - -

HER HONOUR:  It’s up to the jury to make what they will of this - - -

[DEFENCE COUNSEL]:  Well it is and that’s why I’m asking it.

HER HONOUR:  The witness isn’t called to give an opinion about the calibre of her own work, she’s given an opinion about what she’s done and what process she undertook and what conclusion if any she was able to draw.  How can it be of any assistance for the jury to hear if Dr – Storey-Whyte were to say, yeah I’m really fantastic at what I do, or no, I’m really not very good at it at all.  I mean what are you - - - -

[DEFENCE COUNSEL]:  Is Your Honour ruling that I can’t - - -

HER HONOUR:  I’m asking what is the relevance of your question?

[DEFENCE COUNSEL]:  It goes to her credit.  Which we are - - -

HER HONOUR:  In what way?

[DEFENCE COUNSEL]:  Well that she’d say anything.

HER HONOUR:  Well just put that then.  You’d say anything.

[DEFENCE COUNSEL]:  No I - - -

HER HONOUR:  Don’t ask her to give an opinion about her own work.  It can’t help the jury.

[DEFENCE COUNSEL]:  Your Honour with – with respect, Your Honour is interrupting unduly, but I would - - -

HER HONOUR:  No, I’m not interrupting, I’m asking you to abide by the rules and ask questions that make sense.  I am not going to have this witness put in a position of evaluating her own work.  That’s up to the jury.  So ask the question, if you want to put to the witness, you’d just make up anything that you think suits your purpose, but don’t ask her to give an opinion about herself.

1. Like the preceding exchanges, this occurred in front of the jury.  We are troubled by this exchange.  In our view, it may well have led the jury to conclude that defence counsel was deliberately refusing to abide by ‘the rules’, by asking impermissible questions, or alternatively, questions that ‘made no sense’.  We note that, once again, this intervention by the judge was of her own volition, unprompted by any prosecutorial objection.  Further, in our view, there was nothing wrong with the series of questions that were asked.  The witness agreed that she understood Igbo to be a tonal language.  She agreed that, previously, she had said that it was not, and that she had been wrong on that occasion.  Whilst defence counsel’s next series of questions may have been a little obscure, in our view it was entirely permissible for him to test the witness’s expertise in this arcane area by reference to her earlier mistake.  To describe the questions as going to the credit of the witness undersold what was a legitimate line of cross-examination going to both expertise and the soundness of the opinion.  The cross-examination should not have been interrupted, and the judge compounded this error by accusing defence counsel of refusing to obey ‘the rules’ when he suggested that she was interrupting unduly.

1. The above exchanges are extracted from the first 22 pages of cross-examination.  They represent a large proportion of the time spent in cross-examination to that stage of the trial.  During this time, there were five interventions by the trial judge, all in front of the jury, and none in response to any objections by the prosecutor.

1. A short time later, defence counsel commenced to cross-examine the witness about the difficulties with comparing a voice speaking in English to a voice speaking in a language foreign to the witness:

[DEFENCE COUNSEL]:  And let’s not be coy about this, you were seeking to compare something in English, with something in a language you simply didn’t understand, which you don’t speak, right? ---I was comparing certain phrases in English from both samples, the known sample and the unknown sample.  Ah for the rest of it I was comparing what we call non-language specific aspects and those are things that don’t change from language to language.  It doesn’t matter what language you’re speaking, you’re going to be using those muscles and that sort of information - - -

Well - - -

HER HONOUR:  Well just hold on?---Yep.

Just so the jury understand what you are talking about by non-language aspects - - -?---Yes.

- - - on which you based your opinion?---Yep.

Can you give them some examples relating to this case.  Because it’s important that the jury understand what you’re talking about?---Yes.

Can you be specific about what it is you say, when you answer [counsel’s] question about non-language aspects of the voice, which as I understand you to say, don’t depend on what language is being spoken?---That’s correct, yes.

Yes.  Could you just in answer - - -?---M’mm.

- - - to elaborate on – so the jury understand what you mean, give some examples of what you mean relating to this case?---Okay. Um, if — it’s non-language specific, that means it’s not specific to the language you’re speaking, it’s language — sorry — it’s aspects which are general to any language which you might be speaking at the time.  For example, I’m now talking in English and if you measured the fundamental frequency - - -

No, I want you to give examples about this case?---Oh this case.

This particular case?---Okay, yes, right.

So we know - - -?---Yep.

- - - what you’re talking about?---Yes.

You’ve told [defence counsel] - - -?---M’mm.

- - - hang on, answer to his question?---Yes.

‘Yes, I was comparing certain phrases in English at times, but otherwise I was talking about non-language specific aspects’, which you base you opinion - - -?---Yes.

- - - about - - -?---Yep.

- - - the voices being consistent. So can you just go to this case - - -?---M’mm.

- - - please?---Yes.

And let the jury understand what - - -?---Yeah.

- - - you’re talking about?---Okay.

In answer to this aspect?---Yes.  Right.  One of the things that we look at is the general articulatory settings.  What the speaker is doing with their ah articulatis and their vocal tract and their vocal chords when they speak.  Now if I can just have a quick look, um, right.  Ah this particular speaker, when he was speaking, his — I’ve described his phonation, that is, as I said before the way you make sound, the way — what your vocal chords are doing when the air’s coming out of your lungs, as being partly aspirated and partly creaky.  In other words, he has some constriction of the vocal chords, but he’s still letting a certain amount of air through. Now obviously there’d be millions of people that speak like that.  So what we do is add on various other aspects.  Another one we look at is the voice quality and as I said before, this is very hard to describe in any way, but a fairly subjective one, but I like to look at it as the way different instruments sound, musical instruments.  You can have musical instruments which are exactly the same configuration, but perhaps made out of a different material ah and which ah produce sound in the same way, but are going to sound different.  For example, ah one example I like, if you have a really, really expensive handmade Italian violin, that’s going to sound completely different from a mass produced ah Chinese factory made violin.

So can you come back to - - -?---Yep.

- - - this case please?---Yep, yes.  Ah sorry, I – I get carried away, I’m sorry.  

Yes, well we need the jury to understand?---Yep, okay.

If they can?---And this particular voice um, had a — this sort — it was a — it had a mellowness with — with overtone that you could hear. Right?

Can you give some examples?---Can I?  Well no because I can’t mimic the voice.

Well where did you — where — where did you come across - - -?---It was from listening to it, it was listening.

Yes?---Um - - -

Did you record what — what aspects, from what recording?---Ah it would have been from all of them.  Because I — I look at these aspects, they have to appear in every single recording I listen to, they have to match up.

Yes.  Are there any other non, what you referred to as non-language aspects?---Language (indistinct words).  The general articulation was open, in fact he spoke with his mouth fairly open and there was a dental aspect to his voice.  The tongue was close to the teeth most of the time he was speaking, which you could hear.  Ah the perceived relative um pitch was lowish and when I measured it the fundamental frequency, it came out as 103 hertz which is quite a bit below average, or - - -

Sorry, I didn’t get that.  The vocal pitch — or frequency?---Frequency, yes. Average frequency measured 103 hertz cycles per second.

Yes and what did you say after that?---I said that that’s below the average adult male speaker, who’s — [whose] reading is usually between a hundred and eight and a hundred and ten.  And this – it does appear strangely enough to be not um — ah not reliant or on the, how can I put it, in England we’d say IC1, IC2, what do you say here?

[DEFENCE COUNSEL]:  Don’t ask me?

HER HONOUR:  Sorry?---Sorry.  Um, ah that’s independent of whether the — the person is Caucasian or North African or whatever.

Yes?---Yeah.

All right any other non-language aspects to which you referred in answer to [counsel’s] question?---Ah there was an adenoidal quality to some of the expression.

And what do you mean by that?---He spoke as [if] he had — adenoidal problems or had had as a child.

So how does that manifest itself?---In a — in a some phonation coming from the back of the throat.

Yes. Anything else?---Ah the tempo was — was very even. He was a very even - - -

What does that mean?---Um, syllables, stressed syllables all received an equal um emphasis.

Anything else?---Ah, no that seems to be it (indistinct words).

Yes, sorry [Counsel], go on.

1. In this appeal the applicant pointed to this sequence of questions and answers to do with ‘non-language aspects’ on which the witness apparently, partially, based her opinion and contended that, as this part of her apparent reasoning path had not been expressed in her ‘expert’ report, it should not have been extracted by way of questions from the judge during defence cross-examination.  We accept that contention.  The line of questioning went far beyond clarifying an aspect of the testimony and provided a substantial plank of reasoning that the prosecution had not sought to adduce in evidence-in-chief.  It supplemented the prosecution case, and, coming from the judge, gave it added force.

1. The applicant made similar criticisms in relation to the aspect of ‘finer phonetic details’:

[DEFENCE COUNSEL]:  Perhaps before I go on, I’ll give you the chance to explain that.  What do you mean by finer, more fine or finer, phonetic detail?---Ah, it’s to do with the difference between phonemes and allophones.

HER HONOUR:  Between what?---Phonemes and allophones.  A phoneme is a meaning distinguishing sound in the language.  So for example, one I gave earlier was ‘cat’.  If you change that initial k, k sound to a b, you get ‘bat’, so obviously c and b or c and b are different phonemes.  But with the ‘cat’, if you say,  ‘This is a cat’ or if you say, ‘This is a cat’, the t is pronounced differently but it’s still the same meaning so it’s allophone of that phoneme.  Just — just the same way as different genes, you get alleles as particular genes.

[DEFENCE COUNSEL]:  All right. Now, yet - - -

HER HONOUR:   Sorry.

[DEFENCE COUNSEL]:   Sorry.

HER HONOUR:   Can you give an example in relation to this case?  Because [defence counsel] said in your report you say that there’s similarity in finer phonetic details?---Ah.

Can you take the jury - - -?---Yes, okay.

- - - to a specific example so we know what you’re talking about - - -?---Yep, sure.

- - - and then [counsel] can elaborate on his criticism?---All right, okay.  Yes.  He had an on glide to the sound ‘e’, the ‘e’ sound.

You’ll have to explain that - - -?---Yeah.

- - - as best you can?---Yes.

An on glide?---An on glide. Ah, ‘e’ is a — a single sound phoneme, it’s — it’s not a diphthong or a triphthong, it’s one sound which is an ‘ee’ sound compared with ‘I’ which is actually two sounds and a diphthong, so [is] ‘ae’, ae.  Ah, but, ah, this particular speaker pronounces the ‘ee’ sound almost as if it was a semi-diphthong.

Which means what?---Which means that it’s an idiosyncrasy of the way he speaks.

So a semi-diphthong?---Yes.

Is?---An idiosyncrasy of the way he speaks.

And would you be able to point to any specific examples of that in the material so that the jury can - - -?---Yes.

I appreciate that you said before you can’t mimic someone's voice, but just so - - -?---No.

- - - that the jury, if they - - -?---Okay.

- - - wish to - - -?---Yes, of course.

- - - can go to the material to understand what you’re talking about?---Yep.  I’ll tell you where it appears.  You’ll be able to find it in both the control samples.  Can I just read out the numbers of the intercepts?

Yes, yes, and whereabouts they might - - -?---I haven’t written down where —  whereabouts.

All right?---I’ve — I’ve just checked through it to make sure it occurred.

Yes, all right?---If it was — if I only had half a dozen samples I would’ve done but with this there was just so much of it, I was just checking it off.  So 1096, 0996, 959, ah, 958, 942, 937, 900, 899, 877, 863, 818 – I think that might be it.

And in the comparative sample, the record of interview?---Ah, yes, I – I found it in both of the recordings.

So any particular reference?---No, again, sorry, no, I haven’t written it down.

All right.  Were there any other examples of what [counsel’s] asking you about, of finer phonetic details?---Ah, the ‘a’ sound was retracted.

The which sound?---‘A’, sound ‘a’.

‘A’?---M'mm.

‘A’ for apple?---Yeah.

Contracted?---Yeah, it was back in the — back in the throat.  It was more of an ‘a’ sound and that was in both controlled samples in 1096, 937, 900, hang on, 886, 860, and 129.

4996, sorry, and what else was it?---No, sorry, just 2-9, 29.

I beg your pardon?---I’m sorry, I’m going backwards.

I got 886, 860, 129?---No, I’m sorry, it was 29 not 129.

I beg your pardon.  And what were the first references?---Ah, (indistinct) um, 1096,– sorry, 937, 900, 886, 860, and then 29.

Thank you very much?---All right.

Were there any other examples of the finer phonetic detail that Mr - - -?---Ah, yes, there was loads.

1. Shortly thereafter, this exchange occurred during prosecution counsel’s

   
   

   cross-examination:

HER HONOUR:  Yes, don’t worry - - -?---Yes, okay.

- - - about the law, that’s my problem.  But are you talking about such things as saying this articulation was a person who spoke with his mouth fairly open, there was a (indistinct) aspect to his voice, the tongue was close to his teeth most of the time he was speaking, this is what I could hear, that type of specificity?---No, more than that, the acoustics of that.

Yes?---That’s - um, look, that’s a part of it as a phonetician would say, yeah, this diphthong has got those - we call them auditory characteristics, they’re things that you can hear that you’re trained to hear.  Um, but that’s only the first stage, you then have to go and quantify the acoustics of that sound otherwise you can’t really do anything with it at all, you can’t do any testing, you can’t say how similar they are or how not similar they are, or rather you can say, yeah, they’re similarly because my auditory impression’s like that, but it - that won’t be at a level of specificity, um, that allows you to do the forensic comparison, namely to say how likely am I to get that difference assuming it’s the same person and how likely am I to get that difference assuming it’s a different person.

So such things as the pitch coming out at 103 hertz which normally she said was between 108 and 110 hertz, that's the sort of thing you’re talking about?---That’s towards it, yes, that’s the sort of the thing, yeah.  But on — but the measurement that she gave for, ah, what she means as fundamental frequency, ah, which is the acoustic correlative, the rate of vibration of your vocal cords, um, that particular feature that she chose to mention is not a very useful feature for forensic voice comparison because you have the same — no, not the same, very nearly the same amount of — within speaker variation as between speaker variation for that feature.  It’s not a useful feature to measure.

So if that was the only feature she’d relied upon that would be problematic?---Well, it’s also problematic because she did not give any specifications of its spread, all she did was to give you an average — the average for the suspect and average for the — in fact I don’t think she gave — she said that they were very similar.  You can’t do anything with just average values, if you take the average of a value from one speaker and an average of a value from another speaker that tells you nothing.  You need to have an indication of the spread of those values.  So when she says — when Dr Storey-Whyte says that the average value for the suspect was this and the average value for the offender was this, that doesn’t tell you anything, you need to know what the spread of those values — if the spread of those values was very narrow in suspect and offender then they’re very different.  If the spread of the values is very wide then they’re very similar.  I think this is part of — this is an aspect of, ah, Dr Storey-Whyte’s report that I mentioned when I said it’s not enough to make any sense of.

1. In our view, the judge’s many interventions appeared at times, as they had during the applicant’s evidence-in-chief, to be taking on the flavour of cross-examination, including in the following exchanges:

HER HONOUR:  This is back in 2007, did you say?---I can’t remember whose name but it’s there if you want to have a look on my website.  The paper describing it is fully specified.  I’m sorry I can’t remember the case.

Are there any data bases to your knowledge of Igbo speakers available in this country?---I doubt it.  It would be really nice if there were.

There’s no way that Dr Storey-Whyte’s conclusion could be tested against such a data base?---No.

Thank you?---But — okay.

[DEFENCE COUNSEL]:  I think the witness wanted to say something then.  He said, ‘No but’ and then.

HER HONOUR:  He’s your witness.  You can re-examine, Mr Prosecutor.

And later:

HER HONOUR:  So, Dr Rose, if you were to be told and again it’s unfortunate that you’ve not been given the benefit of reading Dr Storey-Whyte’s evidence.  If you were to be told that she had the assistance of three Igbo interpreters who listened with her and advised her about what might or might not be distinctive in the language, is that something of importance, given that there is no data base available?---Ah, interpreters are often used in court here as ad hoc speaker identification experts and I’m afraid they don’t have — there’s a difference between interpreters’ ability and linguists’ ability and I wouldn’t, given the exposure I’ve had to interpreters knowledge of the way language works and so forth, I’m afraid I’d have to say, no. I wouldn’t rely on - - -

Of no help whatsoever?---No.  You could certainly — if I can go on?  You can and should make use if you’re working in a language that you don’t know anything about, the recommendations of the International Association of Forensic Phonetics and Acoustics say first of all, you probably shouldn’t do it but secondly, if you do do it, you have to make use of native speakers to help you say what sounds are the same as what sounds because you’ve got no idea what’s comparable and what’s not.  Yes.

So did you understand — sorry.  I’ve cut you off.  Did you understand that Dr Storey’s report was based solely on the sounds of the Igbo language?---No.  This is what we mentioned earlier on today.

Because what she said in her evidence was she had sufficient English in the

72 recorded conversations and the record of interview to be able to prepare in English.  But in any event she went through the laborious exercise with the Igbo as well?---No.  That wasn’t recoverable from her report.  What I - - -

You didn’t know that, that’s what - - -?---No, no, no.

You mean by that’s not recoverable.  You didn’t realise that?---That’s right.  Her report only implies that she made the comparison using English.  Yes.

And then again later:

HER HONOUR:  So can I just read you this short passage from Dr Storey-Whyte.  She said, ‘It’s important to note that if you’re looking for a particular sound that it’s,’ and this is p.511 of the transcript, ‘It’s in the same phonetic environment as the example that you find to match it.  For example, there’s no point in having an L sound from the front of the word compared with an L sound in the middle of the word, speakers will pronounce those differently.’  That’s effectively the point you’re making, isn’t it?---Yeah, the point I’m making is that you can’t just — you — I think you asked me can you — your question was can you not transcribe the sounds and do speaker identification on that, that’s what you asked, was it?

[PROSECUTION COUNSEL]:  No, I’m asking this question, that in — Dr Storey-Whyte says that, in a foreign language, she looks for non-language aspects of the speech and she notes those and she uses those as part of her process in comparing the relevant samples between the control sample, my word, and the offenders.  You don’t have a problem with that or you do?---Well, I do.  Um, you’ve just used the term, ‘Non-language sounds’?

Features?---Non-language features.

HER HONOUR:  Of the voice, the voice, of the voice?---Non-language features of the voice.  This is a — this doesn’t refer to anything unless you are telling me exactly what you’re talking about.  It has — perhaps you can give me an example of a non-language feature that she used, that would help me say something about it.

[PROSECUTION COUNSEL]:  I’d like to but I can’t?---No.

HER HONOUR:  Well, I probably can if I can find it from Dr Storey-Whyte's evidence.

[PROSECUTION COUNSEL]:  Dr Storey-Whyte can give us several.

HER HONOUR:  I think it was in cross-examination, wasn’t it?---Yeah, I’m sure she could.

So I think what she said, and this is p.548 of the transcript and on. [Defence counsel] in cross-examination of Dr Storey-Whyte had asked her something I think and — about this and — it was me.  I said, ‘Can you be specific about what it is you say when you answer [defence counsel’s] question about non-language aspects of the voice, which as I understand you to say, doesn’t depend on what language is being spoken?’  And she said, ‘That’s correct, yes.’  And I said, ‘Could you elaborate so the jury understand what you mean, give some examples of what you mean relating to this case.’  And she said, ‘Okay, non-language specific, that means it’s not specific to the language that you're speaking about, it’s aspects which are general to any language.’  And she then went on to speak about general articulatory settings, ‘What the speaker is doing when — their articulates and their vocal tract and their vocal — with their vocal chords when they speak.  This particular,’ she said, ‘I’ve described his phonation, that’s the way you make the sound, what your vocal chords are doing when the air’s coming out of your lungs.  He had some constriction of the vocal chords, he’s still letting a certain amount of air through.  Now obviously there’d be millions of people who will speak like that, what we do is to add on various other aspects.  So another non-language aspect is the voice quality’ and she said, ‘This is hard to describe in any way but a fairly subjective one’ and she gave the example of musical instruments that, you know, effectively have the same construction but are made out of different things.  She said, ‘This particular voice had a mellowness to it with overtone that you could hear.’  And she was asked, ‘From what recording?’ She said, ‘From all of them.  I look at all these aspects, they appear in every single recording I listen to, they have to match up.  The general articulation was open,’ and I think I’ve already referred to this, ‘with his mouth fairly open, there was a dental aspect to his voice, the tongue was close to the teeth most of the time he was speaking, which you could hear.  The perceived relative pitch was low, it came out at 108 hertz which is quite a bit below average,’ and I’ve already referred to that.  And she said, ‘There was an adenoidal quality to some of the expression, he spoke as if he had adenoidal problems as a child, there was phonation coming from the back of the throat, the tempo was very even.  The stress syllables all received an equal emphasis’ and they are some of the examples of what she described as non-language aspects.  Did you know anything about that before you gave your evidence today?---No.  Um, they are — as a phonetic description they are appallingly bad.

1. We note that in the passage immediately above the trial judge put to Dr Rose evidence that Dr Storey-Whyte had given in response to the judge’s own questions.  This is not how the adversarial system is supposed to function.

1. Finally under this ground, the applicant relies on a passage from the judge’s charge.  It will be recalled that the applicant sought in evidence to provide an explanation for his two attendances at the Kealba Pharmacy on the relevant evening during the period that the shipment was located at the nearby Kealba Hotel car park.  He produced a receipt for the first attendance and claimed that he had some form of duplicate of a receipt for the second attendance.  In her charge, her Honour said this:

Then, there was this garbled explanation at 744 about how he sent two receipts by email and he photocopied a receipt for his personal reference but he couldn't find the original one.  Life’s probably a bit short, members of the jury.

Conclusion on ground 1

1. The judge intervened in defence counsel’s cross-examination of Dr Storey-Whyte and examination-in-chief of Dr Rose on something in the order of

   
   

   27 occasions.  On none of these occasions was the intervention responsive to an objection by the prosecutor.  Further, approximately 40% of the transcript space devoted to the cross-examination of Dr Rose by prosecution counsel was in fact occupied by questions from the judge and the answers thereto.  Moreover, on three occasions the judge stated to the jury that Dr Rose had not had the benefit of reading a transcript of Dr Storey-Whyte’s evidence.

1. These statistical observations convey something of the level of intervention that was undertaken by the judge.  Having read and re-read the transcript we have concluded that the trial miscarried due to an accumulation of the following reasons:

(i)                The judge intervened unnecessarily and very frequently in front of the jury.  As we have observed at paragraph [56] of these reasons, the judge was placed in a very difficult position by the inadequacy of Dr Storey-Whyte’s report and the defence’s forensic decision not to challenge its admissibility.  Ultimately, the fault of course rested with the prosecution for relying on a ‘woefully inadequate’, supposedly expert report going to a critical aspect of its case.  We consider that the trial judge erred in finding fault with the defence for not challenging the admissibility of the report, and also erred in questioning Dr Storey-Whyte in front of the jury to explain, expand upon and illustrate her reasoning path well beyond the boundaries of her report.

(j)                Several of the judge’s interventions may have been considered by the jury to amount to a denigration of the applicant or the applicant’s case.  In particular we refer to:

·‘[Counsel], this is not a game’ (twice). The first instance of this admonishment was followed shortly after with:  ‘[The witness] is not to be locked into or bullied into saying yes or no just because it might suit you.’

·‘No, I’m not interrupting, I’m asking you to abide by the rules and ask questions that make sense.’

·‘Hope springs eternal, [Counsel]’ — in response to a request by defence counsel that the judge refrain from intervening and allow him to ask questions to which the witness could ‘respond in any meaningful way’.

·In the midst of a line of questioning of Dr Storey-Whyte by defence counsel:  ‘Well, this is helpful.’

(k)              Given the extent and nature of the judge’s interventions, we consider that the jury are likely to have considered that the judge adopted the role of a party to the proceeding, such as to appear a partial advocate.  In particular we refer to:

·The interruption of the applicant’s evidence-in-chief to question the plausibility of his explanation for being at the pharmacy a second time, effectively cross-examining him before prosecution counsel had the opportunity:  ‘But Chris had been staying at your house since the previous Friday? … But he asked for a toothbrush this night? … On the Tuesday?’

·The apparent dismissal, in the charge to the jury, of the applicant’s explanation for the missing ‘second receipt’:  ‘[T]here was this garbled explanation … about how [the applicant] sent two receipts by email and he photocopied a receipt for his personal reference but he couldn’t find the original one.  Life’s probably a bit short, members of the jury.’

·The repeated lament that it was ‘unfortunate that [Dr Rose had] not been given the benefit of reading Dr Storey-Whyte’s evidence’,[51] and the criticism of the defence for not providing the transcript of Dr Storey-Whyte’s oral evidence to Dr Rose that it implied. The only reason that it was in fact ‘unfortunate’ was because Dr Storey-Whyte’s report (which was provided to Dr Rose) was hopelessly inadequate.

[51]As stated at [98] of these reasons, this statement was repeated, more or less verbatim, by the judge three times before the jury.

·

The repeated assertion that defence counsel was not putting

Dr Storey-Whyte’s evidence to Dr Rose accurately, including:  ‘Hang on.  I don’t think, [Counsel], that reflects [Dr Storey-Whyte’s] evidence at all … [Y]ou said that [listen, listen, listen] was what she did.  She did a lot more than that’; and, ‘With respect, [Counsel], that’s not correct … You’re reducing [it] in a way that is not accurate, what Dr Storey-Whyte’s evidence was, with respect.’

(l) We consider that, by introducing significant material that was beyond the scope of Dr Storey-Whyte’s report,[52] and by putting that material to Dr Rose, the judge shaped the content of this important aspect of the trial and filled in what would otherwise have been gaps in the prosecution case.

[52]See point (a) above.

1. Whilst, as we have said, a judge may intervene to maintain proper control of proceedings,[53] and may intervene to understand technical issues or to clarify those issues for the jury,[54] for the reasons we have expressed we consider that the accumulated extent and nature of the judge’s interventions in this trial went well beyond mere clarification of technical issues.

   [53]See above [31].

   [54]See above [27].

1. We consider that there has been a connected series of errors and irregularities in relation to the trial.[55]  Given the undisputed importance to the prosecution case of the evidence affected by the impugned interventions, and in particular to the proof that the applicant was the user of the 582 number, we cannot be satisfied that these  did not make a difference to the outcome of the trial.[56]

   [55]See Criminal Procedure Act 2009 s 276(1)(b).

   [56]See Baini v The Queen (2012) 246 CLR 469, 482 [35], 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’);  Andelman v The Queen (2013) 38 VR 659, 677 [85] (Maxwell P, Weinberg and Priest JJA), quoting Baini at 479 [26].

1. We cannot leave this ground without observing that, in criminal jury trials, judges ought be extremely cautious when intervening in evidence uninvited by any form of objection.  It creates the appearance, if done often enough, that the judge has an interest in the outcome of the proceedings and it may well interrupt the flow of evidence to the detriment of one party or the other.  In bygone days, a practice had developed whereby, if a judge had a question or a series of them, he or she would wait until all examination, cross-examination and re-examination had concluded and, if the question or series of questions remained unanswered, the judge would then ask those questions in as neutral a form as possible.  At the conclusion of this process, the judge would ask counsel for all parties, ‘Anything arising from that?’  Very often, by deferring the judicial questioning to the end of all questions, the judicial question(s) would be answered in the course of evidence at any event, and the need for intervention would have dissipated.  We would welcome the revival of this practice.  Further, exercising a little self-discipline and patience, should the judge anticipate straying into a controversial or pre-agreed area[57] by asking the proposed questions, the jury and witness should be sent out of court and the judge may then discuss the proposed questions with counsel.

   [57]An area agreed previously between counsel as being irrelevant or ‘off-limits’ from some other evidentiary perspective.

1. We consider that the applicant has established the first ground.

Ground 2

1. Ground 2 contends that a series of irregular events occurred in the trial that related to the applicant’s evidence about obtaining a ‘second receipt’ concerning a purchase he asserted he had made of toothbrushes at the Kealba Pharmacy at about 10:44 pm on 13 January 2015.

1. These events were referred to in our reasons dealing with the first ground.[58]  It will be recalled that it was a component of the prosecution case that Mr Nwagbo attended the vicinity of the Kealba Hotel car park on the late evening of 13 January 2015, for the purpose of overseeing the consignment and to observe its removal from the car park.  The Kealba Pharmacy is proximate to the car park.  In his evidence, the applicant had attempted to provide an innocent explanation for his attendance at this location.  In short, as recounted in our disposition of ground 1, he said that he had driven his wife’s red Toyota Yaris at around 9:44 pm to purchase a supplement.  After he returned home his friend Chris borrowed the Yaris for a short time.  Chris had been staying at the applicant’s house.  After Chris returned, the applicant again used the Yaris to drive to the pharmacy to buy two toothbrushes for Chris.  He purchased these toothbrushes at about 10:45 pm.

   [58]See above [83]–[88].

1. During his evidence-in-chief, the applicant’s counsel had tendered only a single receipt, which related to the 9:44 pm attendance at the pharmacy.  In cross-examination, the applicant stated that he had also obtained a receipt from the second, 10:44 pm attendance at the pharmacy, which he had provided to his legal team.  At this stage, the judge sent the jury to the jury room.  We have reproduced the transcript of what occurred at [86]–[87] of these reasons.  In short, the judge, curiously, stated that she would leave the bench and that defence counsel should consider his ‘ethical situation’.  Upon her return, defence counsel explained that he did not consider the ‘second receipt’ tenderable because he only had a copy of a duplicate of that receipt.

1. It will be recalled that defence counsel showed the prosecutor the ‘second receipt’.  Thereafter, any issue around it faded away as the time it recorded for the purchase of the two toothbrushes broadly coincided with the surveillance of the applicant in the vicinity of the pharmacy at that time.  Thus there was no issue between the parties as to the presence of the applicant in the pharmacy and thus near the Kealba Hotel car park at the relevant time.

1. Defence counsel went to the jury contending that the applicant had a legitimate purpose for attending the pharmacy.  Counsel for the prosecution argued that this was a contrivance — that his real purpose for going to the pharmacy was to provide a ‘cover’ for his presence in that vicinity to observe the consignment and see it being moved from the car park.  In cross-examination of the applicant, the prosecutor did not dispute that the applicant had purchased toothbrushes at about 10:45 pm;  he contended that this did not account for the Yaris’s observed movements after the second attendance at the pharmacy.

1. We have already set out this part of the judge’s charge to the jury in our consideration of ground 1.[59]  It will be remembered that in describing portions of the applicant’s evidence, the trial judge said:

Then, there was this garbled explanation at 744 about how he sent two receipts by email and he photocopied a receipt for his personal reference but he couldn't find the original one.  Life's probably a bit short, members of the jury.

The applicant contended that these comments had the potential to undermine the applicant’s credibility in the eyes of the jury.

[59]See above [97].

1. Given our conclusion on ground 1, which incorporated a consideration of the above remarks as part of a much broader ground based on the judge’s interventions, it is unnecessary to consider whether the passage set out above was itself the source of a substantial miscarriage of justice.  Certainly it amounted to a judicial comment about the applicant’s credibility on this ‘dead’ issue and we consider it to have been most unwise.  That said, we do harbour doubts that, standing alone, it would have founded the conclusion that a substantial miscarriage of justice had been occasioned.  We note that the judge made this comment before the High Court specifically stated that judges ought be circumspect in exercising the discretion to comment on evidence and counsel’s arguments.[60]  Notwithstanding their timing, these comments were unwise, dismissive and disparaging of the applicant’s evidence.  We disagree with the respondent’s contention that they were merely ‘arguably flippant’.  They were certainly not balanced by other comments.

   [60]See McKell v The Queen (2019) 264 CLR 307, 313 [3], 323 [47] (Bell, Keane, Gordon and Edelman JJ).

Ground 3

1. The third ground contends that the admission into evidence of transcripts of translated telephone intercept conversations by two ‘interpreter translators’ resulted in a substantial miscarriage of justice.

1. Transcripts of those translated telephone conversations were provided to the jury as Exhibit G.  They were tendered without objection and the interpreters, who were called as witnesses, were not cross-examined by defence counsel as to the efficacy of their interpretations.  The applicant’s position now is that incorrect translations were put before the jury.

1. There is nothing in this ground.  Defence counsel of long experience made a forensic decision not to challenge the Igbo interpreters, either in relation to their qualifications or the accuracy of their translations.  Given that the defence case was that it was not the applicant speaking on the 582 number, this forensic decision can readily be understood.  In opening the case, defence counsel made this clear.  He identified the dispute as centring around the identity of the user of the 582 number and then said, ‘So there’s no dispute about the fact of the calls being made or received and the content.’[61]

   [61]Emphasis added.

1. Leave to appeal on this ground must be refused.

Ground 4

1. Given our conclusion on ground 1, it is unnecessary to consider ground 4, which asserted that an aggregation of errors caused the trial to miscarry.

Conclusion

1. Leave to appeal against conviction will be granted;  the appeal will be allowed;  the conviction will be set aside;  and a new trial will be ordered.

1. Given our conclusions with respect to conviction, it is unnecessary to consider the application for leave to appeal against the very stern sentence imposed.

- - -

ANNEXURE

Extract of Report of Dr Storey-Whyte dated 28 May 2015

3.        PRELIMINARY EXAMINATION AND OBSERVATIONS

The control samples for Mr NWAGBO provided an excellent reference sample for relevant aspects of his voice and speech habits, in terms of quality, duration and comprehensiveness.  The language spoken during interview was English.

The disputed samples provided reference samples of varying adequacy for comparable aspects of the voice and speech habits, in terms of quality, duration and comprehensiveness.  Much of the sample from the disputed recordings was not in English, but rather in the Nigerian language Igbo;  there was however sufficient sample in English to use for comparison purposes for many of the recordings and non-language-specific aspects of the speaker’s voice could also be examined.

4.        AUDITORY ANALYSIS

There were a number of close and significant auditory similarities between the voice and speech patterns of the target male speaker as provided on the audio CD of the intercept calls ref:  and those of Onyeka Evans NWAGBO as recorded and identified on the police interview recordings.  These included the broader categories of sex, apparent age group of the speaker and social dialect, [foreign language] influence (as well as regional/dialectical [foreign language] aspects) as well as matches in phonation type, voice quality, intonation patterns and general articulatory settings.

In the finer phonetic detail, there was a range of similar or matching realisations, including some distinctive ones such as /ou:/and /ei:/ and the articulation of the word ‘yeah’.

5.        ACOUSTIC ANALYSIS

5.1Spectograms (computer generated graphs showing speech energy against frequency across time) were also made of selected sounds and utterances, including the vowel sound / ou:/ (the vowel in know, no) and /ei:/ (the vowel in say and day).

These were extremely close similarities in formant measurements, shape and trajectory;  some were identical.

5.2Fundamental Frequency (F0) measurements were made of a section of the taped record of interview and produced an average reading of 103 Hz.  F0 averages were taken of a sample of the disputed recordings and yielded similar readings.  These corresponded with the perceived auditory perception of the voice pitch of the voice samples.

6.CONCLUSIONS

Given the nature, range and distribution of the similarities between the target voices and samples of speech, the distinctiveness of the voice quality, and the lack of counter-examples, I have formed the following opinions:

I formed the opinion that the voice of Mr NWAGBO is consistent with the voice of the male speaker on the telephone recordings listed in Appendix 1 and identified on the transcripts as NWAGBO.

Further, taking into account the quality of the disputed sample noted above, I consider the distinctiveness of the consistencies between the samples to be Highly Distinctive (point 4 on the 5 point scale set out below).

7.        METHODS OF ANALYSIS USED FOR SPEAKER COMPARISON/IDENTIFICATION

The opinions on speaker identity expressed in this report are based upon auditory and instrumental examinations of the recordings.  These  methods take account of recent Appeal Court Rulings relating to forensic voice analysis including Northern Ireland Court of Appeal R–v–Dougherty [2002] and more recently, EWCA, R–v–Flynn and St John [2008].

The analyses were initially made on an auditory basis — i.e. by careful listening to the recordings as a whole, in sections, and then to digitally re-recorded sections of speech from each sample repeated many times and played side by side for direct comparison.  Assisted by a specialised system of notation developed by the International Phonetic Association for capturing the features of speech, a study was made of the patterns of pronunciation and voice represented in each recording.

In those cases where the control sample had been recorded via a fixed digital recording device and another via a telephone line, a digital filter was devised to mimic the telephone frequency response and applied to a section of the control sample to enable a more realistic like-for-like comparison.

Fine details of selected vowel and consonant pronunciation(s), rhythm, timing, intonation, pitch, phonation type, perceived articulatory settings and voice quality were analysed.  Pragmatics, lexicon, syntax and aspects of fluency/dysfluency were also noted.

Acoustic measurements, such as formant measurements within spectrograms, were made, using voice acoustics software.

The following equipment was used:

·Software programmes for analysis of voice and speech sounds

·Adobe Audition™ — signal processing programme for handling sound files

·Praat™ — software programme for analysis of voice and speech sounds

·Sennheiser™ and other high quality headphones

·Creative Audigy™ soundcard

Limitations of procedure

These analytical techniques do not, under any circumstances, provide an identification comparable to fingerprints.  Rather, they allow one to arrive at an opinion which can be supported by reference to phonetic (articulatory, auditory and acoustic) features of the material examined.

The normal limitations of opinion evidence apply.

8.        FRAMEWORK FOR FORENSIC VOICE ANALYSIS and COMPARISON CONCLUSIONS

The framework set out below is in accordance with the Position Statement adopted by the International Association for Forensic Phonetics and Acoustics (IAFPA) in February 2007 regarding expression of expert opinion in cases involving Speaker Comparison:

8.1      Consistency Outcomes

A decision is made initially within the following categories in relation to the speech sample examined.

·The samples are consistent with having been spoken by the same speaker

·The samples are not consistent with having been spoken by the same speaker

·No decision was reached as to whether or not the samples were spoken by the same speaker

8.2      Consistency Outcomes — Distinctiveness

The distinctiveness of the consistencies between the voices in the speech samples is assigned according to the 5 point scale set out below:

5.Exceptionally distinctive — the possibility of this combination of features being shared by other speakers is considered to be remote.

4.        Highly distinctive.

3.        Distinctive.

2.        Moderately distinctive.

1.        Not distinctive.

…

9.        INDEPENDENCE OF EXPERT

The author of this report is fully aware of, and complies with, her duty to the Court only, and not to any other interested or instructing party.