R v Dunn

[2012] NSWDC 192

District Court

New South Wales

Medium Neutral Citation:	R v Dunn [2012] NSWDC 192
Hearing dates:	11October 2012. 15-16 October 2012.
Decision date:	17 October 2012
Before:	Berman SC DCJ
Decision:	Accused is found not guilty
Catchwords:	CRIMINAL LAW - Judgment - Judge alone trial - Voice identification evidence - Failure to ask important questions - Difference between words heard on recording and words appearing in transcript
Category:	Principal judgment
Parties:	The Crown Jack James Dunn
Representation:	Mr G Corr - The Crown Mr R Driels - The Accused The Director of Public Prosecutions Miers Legal - The Accused
File Number(s):	2011/293954

Judgment

Introduction

1. The accused Jack James Dunn was arraigned on an indictment alleging that, on 14 May 2011 in company with others, he had attempted to break and enter premises at Belrose with intent to steal on 14 May 2011. He pleaded not guilty to that charge. In accordance with orders I had made earlier his trial was held without a jury, with me as the judge determining whether the prosecution had proved the guilt of the accused beyond reasonable doubt.

1. I heard evidence about the commission of the offence. It is clear that someone attempted to break and enter into the premises at Belrose with the intention of stealing from those premises. I am easily able to find that beyond reasonable doubt. What is at issue is whether the accused was one of the men involved.

1. The police had been investigating the activities of a number of people, including the accused, for some time. As part of those investigations a number of types of electronic surveillance were used. In particular, telephones were intercepted and listening devices were installed. Two of the telephones which were intercepted were those of the accused. Over the period that the telephone intercept warrants were in force a large number of voice calls involving the accused's telephones were recorded, something in the order of 3,800. Although at times his telephone was being used by other people, for the majority of the time his voice could be heard on those calls.

1. A listening device had also been installed in a stolen Mercedes Benz motor vehicle. That device recorded sounds emanating from within and near to the motor vehicle. The motor vehicle was used in the offence and a number of conversations between those involved in the offence were recorded. Those recordings included conversation before the offence was committed and during its commission. Indeed on the recording the sounds of a sledge hammer being used in an attempt to break into the premises could clearly be heard.

1. There is no dispute that the listening device records the voices of people who are guilty of the offence. The issue for me to determine is whether I am satisfied beyond reasonable doubt that one of the voices recorded was that of the accused.

1. The Crown case against the accused is based solely on the recordings. The Crown says that police officers who have listened both to the listening device recording and the telephone intercept recordings have become ad hoc experts in identifying the voice of the accused. They gave evidence that in their opinion one of the voices heard on the listening device recording was that of the accused. The Crown case is that the police officers had become very familiar with the voice of the accused through listening to the results of the telephone intercept warrant and so their opinion should be accepted beyond reasonable doubt. The Crown also purports to rely on some of the things said in the conversations recorded on the listening device, in particular those parts of the recording where one of the people involved in the offence used the name of the accused - "Jack", a derivation of it - "Dunny", or his nickname - "Crack".

Preliminary Matters

1. I will set out some preliminary matters. They are the sorts of things that I would tell a jury were this a trial where a jury decided the guilt or otherwise of the accused.

1. I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial.

1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty.

1. The accused did not give evidence. I have not used that in any way against him. The accused was entitled to say nothing in Court and make the Crown prove his guilt if it could. The fact that the accused did not give evidence does not effect the fundamental proposition which I must apply - that is that the Crown must prove his guilt beyond reasonable doubt.

1. So the silence of the accused in Court is not evidence against him. His election not to give evidence was not an admission made by him. His decision not to give evidence must not be used by me to fill gaps in the Crown case or make up any deficiencies or defects in the Crown's case that might exist.

Identification Evidence

1. As I trust I have made clear the issue in this case is whether the accused's voice has been correctly identified. Should I accept beyond reasonable doubt the opinion of those police officers who say that, having heard the accused's voice repeatedly on the telephone intercept recordings, they are able to identify the accused's voice on exhibit 1, the listening device recording?

1. Although the directions that a judge gives to a jury when identification is an issue are largely based on the need to impart the experience and wisdom of judges to lay jurors, the fact that this is a trial by judge alone does not obviate the need for me to explain why I have approached this issue cautiously.

1. There is a difference between a witness' honesty and a witness' accuracy. Even though it may well be the case that the officers who expressed their opinions about the identification of the accused were doing so honestly, that does not mean that they were necessarily accurate.

1. Identification evidence is evidence which may well be unreliable. I must exercise caution before I accept that evidence. All identification evidence may be unreliable because mistakes are often and easily made and because what is at issue is not the honesty of the witness but the accuracy of the witness' conclusion. Identification evidence can be given in a very persuasive manner simply because of that fact - I repeat it is usually given by an honest witness who genuinely and firmly believes the truth of his or her evidence.

Voice Identification

1. It is important that I bear firmly in mind that all identification evidence may be unreliable but in particular identifying someone by their voice can be very fraught with difficulties indeed. When compared with the act of identification visually there are fewer objective features which can be examined. When visual identification is undertaken an objective comparison can be made of such things as the height of a person, the colour of their eyes, the shape of their nose, whether the person has freckles or not and so on. But those objective criteria are not readily found as one voice is compared to another.

1. The fact that more than one person believes that the voice is that of the accused may simply mean that more than one person has made an honest mistake. After all the voice is either the accused or someone who sounds sufficiently like him as to have his voice mistaken for that of the accused.

1. As well as these general matters, in the particular circumstances of this case there are specific factors which effect the reliability of the identification evidence. They include the following:

• Whilst the police listened to the sound of the accused's voice repeatedly as it appeared on the various telephone intercepts, the number of utterances of V3 (the person said to be the accused) on the listening device recording is comparatively small. The Crown said, without challenge from counsel for the accused, that there were 32 utterances totalling 119 words. Many of those however were very short exclamations and very few complete sentences were used.

• Whilst technology is clearly improving as far at the product of listening devices is concerned, there remained on the listening device recording interference from such things as engine noise, and it appeared that the microphone part of the listening device was inside the car whilst the person said to be the accused remained at all times outside the car. At times the voice of V3 was indistinct.

• Just as the accuracy of visual identification can be affected by the circumstance that a person from one culture is identifying a person from another background, so too does that problem arise as far as voice identification is concerned. Those of us not used to strong accents find it more difficult to recognise particular speakers with those accents than those of us who do have familiarity with such an accent. I note that in this case the accused is of aboriginal background. I might be wrong but it did not appear that any of the police officers had a similar background. In any case the Crown did not lead any evidence on this issue.

• The police officers were comparing, in almost every case, the product of telephone intercepts with the product of listening devices. I simply do not know the fidelity of the product of the telephone intercepts. No recordings were played to me and I was not able to make my own assessment as to the quality of the sound they produced.

• The person said to be V3 was wearing a mask, at least at the time of some of the recordings on the listening device. The evidence established that the persons attempting to commit this offence were seen on CCTV footage wearing masks. Thus there is the possibility that the wearing of a mask has introduced some distortion to the actual voice of the person said to be V3.

• The utterances of the accused on the telephone intercepts and V3 on the listening device recordings were clearly said in different circumstances. One could expect that the voice of a person committing an offence might be somewhat different to that same person's voice when they are in a more relaxed frame of mind.

• Human beings are very suggestible and they tend to hear what they are told they are going to hear. Instances of this abound in criminal cases around the world. In the present case some of the officers were told, before they had even listened to the listening device product, that other officers had formed the conclusion that V3 was this accused. That circumstance significantly diminishes the weight which I can place on those officers' acts of identification.

• A similar thing applies, to a lesser extent, to other officers. The accused was targeted as part of the operation carried out by police. Thus when those police heard a voice on the listening device they chose from quite a narrow pool of people whom they believed could be speaking. Although one of the officers said he was quite surprised to hear the voice of the accused, it remains the case that the officers would expect that the voices recorded on the listening device all came from people they were investigating. So to a greater or lesser extent there was a sub conscious bias in the mind of every police officer tending to induce them to identify the voice as that of the accused.

1. The dangers involved with identification evidence in general, and with the identification evidence in this case in particular, have led me to look carefully to see if there is any other evidence tending to point to the conclusion that the Crown wishes me to draw, namely that the accused's voice was recorded on the listening device. Indeed I can confidently say that in the absence of any such evidence a verdict of not guilty would have been inevitable. Notwithstanding the obvious honesty of the officers who genuinely believe that they can recognise the accused's voice on the listening device recording, the problems with identification evidence generally, and which apply specifically to this case, are such that their opinions alone as to their recognition of the accused's voice would not satisfy me beyond reasonable doubt of his guilt.

1. But there is other evidence. I refer of course to the content of some parts of the listening device recording in which the crown case is that the words "Jack", "Crack", and "Dunny" appear. The accused's name is Jack Dunn and so it is highly likely that he would on occasions be referred to as "Jack", and not at all surprising if he was occasionally referred to as "Dunny." I recognise immediately that those police officers who listened to the accused's telephone calls did not hear him being referred to as "Dunny" on any occasion, but if the context of the utterance is such as to exclude other meanings of the word "Dunny", then if that word was used in addressing another person, that would be some evidence that the other person was the accused. As far as the name "Crack" is concerned, evidence was given by the police that on two occasions in the intercepted telephone calls the accused was referred to by that nickname.

1. It is therefore appropriate to examine whether the Crown is accurate in saying that the names "Jack" "Crack" or "Dunny" can be heard on the listening device recording and if so, the circumstances in which Mr Petterson and Mr O'Mealey, used those terms. I will return to those issues later.

Other evidence exculpating the accused

1. The Crown called evidence from two of the men who were undoubtedly guilty of the offence with which the accused has been charged, Mr Petterson and Mr O'Mealey. Mr Petterson had already been sentenced. Mr O'Mealey was to be sentenced a few days after he was called by the Crown. Whilst he confirmed that he was involved in the offence he said that he would not answer any questions as to who else was involved. The Crown did not ask me to advise Mr O'Mealey that his attitude could be seen to be in contempt of Court and so his evidence was simply left at that.

1. Mr Petterson on the other hand gave evidence that Mr Dunn was not involved in the offence. I must confess at being somewhat surprised that the Crown did not ask Mr Petterson to listen to the listening device recording, in particular the part where the transcript attributes the word "Dunny" to Mr Petterson himself, and ask him firstly what he said and secondly what he meant by it. Mr Driels did not ask Mr Petterson those questions either. When I tried to ask what is, after all, an obvious series of questions, I discovered that the Crown prosecutor had not even brought to Court the necessary equipment to play the listening device recording. In those circumstances what Mr Petterson would have said is completely unknown.

1. It is not an exaggeration to say that the resolution of this case may well turn on whether Mr Pettersen did say "Dunny" as the transcript records. In Mr Driels submission the transcript was not accurate and the words actually used by Mr Petersen were "Done, we're just up there". In the Crown's submission the transcript was accurate. Whilst I can understand Mr Driel's reluctance to ask Mr Pettersen what he said, the same cannot be said about the Crown. The Crown complied with its obligation of fairness by calling Mr Pettersen, but its failure to ask whether he used the word "Dunny", and if so, what he meant is inexplicable. It should not have mattered to the Crown whether the answer was supportive of its case or not.

1. It is of course a matter very much in the accused's favour that there is evidence from a witness that Mr Dunn was not one of the people present whilst the offence was being committed.

Is there support for the accuracy of the identification evidence?

1. I now return to examine whether the Crown is accurate in saying that the names "Jack" "Crack" or "Dunny" can be heard on the listening device recording and if so, what were the circumstances in which Mr Petterson and Mr O'Mealey, used those terms.

"Crack"

1. The circumstances leading up to the commission of the offence included these: Neil Petterson and Sean O'Mealey were together in a stolen Mercedes motor vehicle. This was the car that had the listening device in it. The two men met up with a person, said by the Crown to be the accused, at a location some distance from Belrose where the offence was committed. The other person was driving a second motor vehicle, an Audi. Those in the Mercedes had a scanner with them capable of picking up police radio transmissions. The listening device in the Mercedes recorded the sounds of the scanner from time to time. At one stage police radio transmissions concerning an incident in Auburn can be heard. Petterson and O'Mealey discuss that matter. O'Mealey then says "I think Crack wanted, wanted this one more than the other one". Neil Petterson responds with "hmm, I don't know" and then "I wish I was in the other one now its fucking raining. Should be right". O'Mealey asks "traction on?" and Petterson says "yeah I had it on the whole time".

1. It is clear that the reference to "this one" and "the other one" are references to the two motor vehicles - "this one" being the Mercedes in which Petterson and O'Mealey were travelling and "the other one" being the Audi in which someone else involved in the offence is travelling. Thus the statement by O'Mealey "I think Crack wanted, wanted this one more than the other one" tends to suggest that someone named Crack would have preferred to drive the Mercedes rather than the Audi.

1. I repeat that uncontested evidence was given in the Crown case that on two occasions on the telephone intercepts the accused was referred to as "Crack," once by a person named Mel and once by his sister.

1. Putting all those circumstances together the use of the name "Crack" by Petterson, in the context in which it was used, supports the Crown case that this accused was in the Audi and thus involved in the later attempt to break into the premises at Belrose.

"Jack"

1. The transcript prepared by police suggests that at another point on the listening device recording Neil Petterson is heard to say "Jack probably said let me drive". As I have just explained an Audi and a Mercedes were used by the offenders with the Crown case being that the accused was in the Audi. If the transcript is accurate then the context in which the name "Jack" is used in this part of the recording suggests that a person with that name was in the Audi and from what Neil Petterson knew of him it was likely that he would have wanted to drive that vehicle. This would tend to suggest that the accused was in the Audi as the vehicles travelled towards the location where the offence was committed.

1. However the transcript is not to take the place of the actual recording. Where there is a conflict between what I read in the transcript and what I hear (and don't hear) with my ears then it is the latter which must prevail.

1. In circumstances where the accuracy of the transcript is disputed, as in this case, it is disappointing indeed that the Crown did not initially make the recording available in a format which made it easy to replay, over and over again, discreet parts of the recording. At first I was told that this was not technically possible, but after inquiries were made, during the trial, it appeared that there was in fact no technical impediment to producing a version of the recording which made repeated review much easier. That version, in effect a working copy of exhibit 1, was tendered without objection. It became exhibit 3. The sounds on it were identical to the sounds on exhibit 1, but exhibit 3 was much easier to use.

1. I have listened repeatedly to that part of the recording where Petersen purportedly says "Jack probably said let me drive" and I simply cannot hear the entirety of that phrase. The word "Jack" is very clear and I can make out the words "probably" and "drive" but the words in between are, to my ears, indistinct.

1. In those circumstances the support the Crown receives from the use of the name "Jack" is significantly diminished.

"Dunny"

1. Towards the end of the listening device recording Petterson and O'Mealey are heard discussing how the offence of breaking and entering is to be committed. There are sounds consistent with the window of the car in which they are travelling being wound down and then Pettersen says something.

1. The transcript records him as saying "Dunny...just up there". When the Crown prosecutor addressed me, he told me that Mr Petterson was speaking to someone outside the car. That is a possible interpretation if one relied only on the transcript. But having listened to the recording, rather than just relying on the transcript, it is beyond argument that the Crown Prosecutor's submission is just plain wrong. The volume of the voice is such that someone not in the car could not hear what was said. The volume of the voice is much lower than in later utterances, (where there is a reference to a "sledgie"), which were obviously directed to a person outside the car.

1. On top of that, the question arises as to the whether the transcript is accurate when it attributes the use of a name by which Mr Dunn might well be known to Mr Petterson. Once more I have listened repeatedly to this part of the recording. I simply cannot hear the term "Dunny" being used. I am not sure what I do hear, but I think that if I had to choose what I hear, I would say that it is much more likely to be "Damien" than "Dunny". I repeat - I do not hear the word "Dunny". I do not hear the word "Done". I hear something quite different, probably the word "Damien". I will proceed on that basis.

Conclusion

1. So the Crown case comes down to the opinion of four officers who have listened to the accused's voice for many many hours and who each express the opinion that they recognise that voice on the listening device recording. Their opinions are supported in a minor way by the way by the use of the name "Crack" but there is nothing else to support the accuracy of their opinions, and the evidence of Mr Petterson was that the accused was not involved.

1. I have set out above the problems that exist with identification evidence generally, more specifically with voice identification, and even more specifically with the evidence of voice identification in the case before me. I cannot exclude the reasonable possibility that those opinions are mistaken. Particularly important in making this finding are the following:

• The relatively small number of utterances made by the person said to be the accused on the listening device recording and

• The influence of unconscious suggestion that the officers would likely hear either the voice of the accused or at the very least the voice of someone they had been investigating.

1. For those reasons I find the accused not guilty.

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Decision last updated: 17 October 2012