R v Kokotis - [2006] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOKOTIS
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Boylan
3 March 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with two counts of taking part in the sale of a drug of dependence - trial by judge alone without jury - investigating officers intercepting telephone calls of suspected drug dealers - whether accused's voice in brief series of calls - whether references in intercepted calls to purchase of drugs - where investigating officer identified accused's voice by hearing accused speak at charge counter on another matter - voice identification - where accused has identical twin brother. Verdict: accused not guilty of both counts.

R v KOKOTIS
[2006] SADC 32

The accused is charged with two counts of taking part in the sale of a drug of dependence.
The particulars of the offences are as follows:
“First Count
Statement of Offence
Taking Part in the Sale of a Drug of Dependence. (Section 32(1)(d) of the Controlled Substances Act, 1984).
Particulars of Offence
Matthew Kokotis on the 3^rd day of December 2003 at Port Pirie, knowingly took part in the sale of a drug of dependence, namely amphetamine or methylamphetamine, to another person.
Second Count
Statement of Offence
Taking Part in the Sale of a Drug of Dependence. (Ibid).
Particulars of Offence
Matthew Kokotis on the 4th day of December 2003 at Port Pirie, knowingly took part in the sale of a drug of dependence, namely amphetamine or methylamphetamine, to another person.”
The accused pleaded not guilty to both counts. He elected for trial by judge alone.
The charges arise out of a series of telephone calls which were intercepted by police (“the intercepted calls”).
There is no dispute about the factual basis of the prosecution case. The issue is whether or not the prosecution has proved beyond reasonable doubt
(1) that the calls were about the proposed sales of amphetamine and
(2) whether the accused is the male speaker in the intercepted calls.
Summary of the Prosecution Case
At the end of 2003, Detectives Borghardt and Bussenschutt were investigating the activities of two women who lived in Port Pirie: Julie Lee and her daughter Sarah. They were suspected of being drug dealers. Their telephone line was intercepted and their calls recorded. Between the 31^st of October 2003 and the 19^th of December 2003, some 2,500 calls were recorded. Detective Borghardt listened to all, or nearly all, of them soon after each of the calls was made. There were male voices in about half of the total number of calls.
On the 3^rd and 4^th of December 2003, there was a series of brief calls between one or other of the women and a male who used the name “Matt”. He was speaking from telephone number 0415179455. On one interpretation, the calls were about arrangements for the sale and delivery of amphetamines.
It is the prosecution case that “Matt”, the male caller, was the accused.
It is now necessary to go back in time a little. The accused has a twin brother, Luke. Before December 2003 both brothers were known to the police at Port Pirie. On the basis of reports from informants, a number of police officers, including Detective Borghardt, had formed the view that both of the Kokotis brothers were drug dealers.
Detective Borghardt listened to the intercepted calls of the 3^rd and 4^th of December, either on those dates or very soon thereafter. As soon as she heard the name “Matt” she became suspicious that the male speaker was the accused.
On the 9^th of April 2004, Matthew Kokotis was stopped by uniformed police officers about a traffic matter. For reasons which are not now relevant, his car was searched and $4,500 was found hidden under one of the seats. Having found that money, one of the officers arranged for Detective Borgardt, who was the CIB officer on call, to be recalled to duty. The accused was taken to the charge counter at the Port Pirie Police Station. While he was at the charge counter, Detective Borgardt arrived and heard him speak. She gave evidence that, immediately upon hearing his voice, she recognised it as that of the male speaker in the intercepted calls of the 3^rd and 4^th of December.
I pause here to note that I excluded the evidence of the finding of the money as evidence tending to show that the accused was in fact dealing in illegal drugs. The evidence has some relevance otherwise. Given Detective Borgardt’s suspicions of the accused prior to the 9^th of April, the fact that he was then found in possession of such a sum of money may have further influenced her view that he was a drug dealer.
While at the charge counter, the accused was searched. He was found to be in possession of two mobile telephones. One of them contained in its “memory”, an address book in which appeared the following entry:
ME O415179455.
According to the records of Vodafone, the service provider, the subscriber to telephone number 0415179455 between the 10^th of April 2000 and the 21^st of August 2005 was a Mr Philip Stigwood of 4 Barry Street, Port Perry SA 5114. It is not disputed that both that name and that address are false. There is no evidence that either of the telephones found in the accused’s possession on the 9^th of April 2004 was used to make or to receive the intercepted calls.
There is evidence that the accused uses the name “Matt”.
The contents of the telephone calls
Before turning to a consideration of the elements of the offences and the evidence in support of each of the elements, I set out the transcripts of the relevant telephone calls. Each of them was ascribed a call number and I use that number to identify them.
“CALL NO. 686
Conversation commenced at 01:25 on 03/12/2003
MALE:After this …………. You know what he’s like. I’ll be off, it’ll be off if he doesn’t
(phone ringing)
(Female and child conversation in background)
MALE2:Hello
MALE:Hello
MALE2:Yo
MALE:Matt? Yeah how ya going mate, it’s Junior here, you asleep?
MALE2:Yeah man
MALE:Sorry mate
MALE2:That’s alright
MALE:Are you you in this way tomorrow?
MALE2:Yeah yep yep
MALE:Any chance that you can come like how like will it be early?
MALE2:Yeah yep yep
MALE:Yeah
MALE2:Yep
MALE:You know what I was talking about the other day?
MALE2:Umm
MALE:One of those bigger ones
MALE2:Yeah, yep
MALE:Like a five
MALE2:Yep
CALL NO. 700
Conversation commenced at 12:11 on 03/12/2003
FEMALE:Hello
MALE:Hello is Richard there
FEMALE:Um no he’s not at the moment but I’ll just grab Sarah for ya?
MALE:Alright no worries
FEMALE:Hello
MALE:How ya going Sarah?
FEMALE2:What (laughs) um
MALE:Had a big night?
FEMALE2:Yeah not bad
MALE:What’s Richard up to?
FEMALE2:Um nuthin at the moment he’s fuckin yeah just wanted to know if you wanted to catch up for a game a eight ball and shit man and they’re fuckin
(Mobile phone ringing in background)
MALE:Yeah yep
FEMALE2:Yeah
MALE:Oh I gotta answer me other phone just get him to give me a call when he wants to catch up alright?
FEMALE2:Yep, yeah no worries man
MALE:Alright see ya
FEMALE2:Yep see ya
CALL NO. 701
Conversation commenced at   12:12 on 03/12/2003
FEMALE:……..now I want it now
(Phone ringing)
MALE:Hello, hello
FEMALE:Hello Matt
MALE:Hello
FEMALE:Hello it’s Sarah d’you reckon you’ll be able to come now?
MALE:What’s that?
FEMALE:D’you reckon you’ll be able to come now? (laughs)
MALE:Is that Sarah?
FEMALE:Yeah
MALE:Yeah I dunno where you’s are
FEMALE:Um Edward Street, you know where the phone box is?
MALE:Umm fuck I can’t even think, um Wood Street er near Richard’s Lums up that way?
FEMALE:Um nah the other way um you know like on um Three Chain Road, before Afford
MALE:Oh yep the Three Chain near there somewhere?
FEMALE:Yeah, yep yep
MALE:Um
FEMALE:Just before Afford I think
MALE:Um I’m I’ll need a little bit of time anyway
FEMALE:Yeah
MALE:Alright? And what you definitely want it?
FEMALE:Yeah yep definitely
MALE:Alright. Alright ten minutes five fifty though alright?
FEMALE:Yeah yep
MALE:Have you got the extra fifty or I’ll have to take a bit out
FEMALE:Yep no worries
MALE:Alright?
FEMALE:Yep no worries
MALE:Alright no worries
FEMALE:OK
MALE:Alright catch ya
FEMALE:See ya
CALL NO.706
Conversation commenced at 12:45 on 03/12/2003
FEMALE:Hello
MALE:Hello is Sarah or Richard there?
FEMALE:Er well she said she’s standin out the front and she said go in the back (laughs)
MALE:Oh yeah I can see her now, yep
FEMALE:Yep no worries
MALE:Alright catch ya
FEMALE:Alright se
CALL NO. 761
Conversation commenced at 11:59 on 04/12/2003
(Rustling noises, Female breathing)
(phone ringing)
MALE:Hello
FEMALE:Yeah Matt, it’s Sarah’s Mum here did you get my message before?
MALE:Er no I didn’t nah
FEMALE:Nuh oh I asked could you drop in and see me like same as yesterday
MALE:Er yep yep
FEMALE:Yep
MALE:I haven’t got none of that but I’ve got a different one
FEMALE:Yep is it nicer or same or what?
MALE:Um I dunno I can give you a try but ……………….
FEMALE:Yeah
MALE:Give you a little bit to try
FEMALE:If you can yeah no problems (talking over each other)
MALE:(Talking over each other) See what you think. Huh what’s that?
FEMALE:We well yeah yeah if you can be good
MALE:Yep, alright no worries
FEMALE:Yep alright
MALE:I’ll bring you a little bit to try then
FEMALE:OK no worries thank you
MALE:Alright? Alright catch ya
FEMALE:Right see ya
CALL NO.763
Conversation commenced at 12:20 on 04/12/2003
FEMALE:Hello
(Baby in background)
MALE:Yo Blondie it’s Matt how ya goin?
FEMALE:Yep how ya goin?
MALE:Er my mate’s just out having dinner at the moment so I
FEMALE:Yep
MALE:can’t catch up with him for about half hour or three quarters of an hour
FEMALE:Yep no worries
MALE:Alright is that cool?
FEMALE:Yep no problems just give me (talking over each other)
MALE:(Talking over each other) Yep so s
FEMALE:A buzz when you’re on your way
MALE:Alright soon soon as I’ll catch up with him I’ll catch y up alright?
FEMALE:Yep OK thanks heaps
MALE:Alright see ya
FEMALE:OK yep see ya
CALL NO.855
Conversation commenced at 12:39 on 05/12/2003
MALE:Hello
FEMALE:Yeah Matt it’s Blondie and
MALE:Yeah how ya going alrlight?
FEMALE:Um ah yeah not bad um could I catch up with you like and give you like I said I how I was gunna give you a try of something
MALE:What’s that, give me what?
FEMALE:I I’ve got a little bit for you to try if you wanna
MALE:Yeah yeah that’s alright thanks anyway I don’t touch it though eh? I don’t touch it anymore
FEMALE:Yes, alright
MALE:I don’t touch it
FEMALE:Alright no worries
MALE:Yep yep alright?
FEMALE:O OK
MALE:Alright?
FEMALE:Right thanks for helping me too
MALE:Alright, right no worries
FEMALE:OK, alright
MALE:Right catch ya
FEMALE:    See ya, yep”
The elements of the offences
To prove each of the offences, the prosecution must prove beyond reasonable doubt each of the following elements:
1.That the material the subject of the alleged sale was amphetamine or methylamphetamine.
2.That both amphetamine and methylamphetamine are drugs of dependence. I direct myself that they are.
3.That a step was taken in the process of sale of amphetamine or methylaphetamine.
4. That the accused took part in that step.
5.That the accused knew the substance the subject of the step towards sale was an illegal drug.
The Prosecution Case in Further Detail
It is the prosecution case that, in the calls of the 3^rd of December 2003, the male speaker arranged to sell to one of the females or to a man called “Richard” a measure of amphetamine or methylamphetamine at a price agreed at $550. Further, the male caller has sought and received directions to a meeting place to effect the sale. In the calls of the 4^th of December, the male caller has offered to sell amphetamine to one of the females on the basis that she try the drug first. In the case of the calls of the 3^rd of December, the prosecution submits that the quoting of a price and the arrangements to meet are steps in the sale of a drug of dependence. The prosecution goes further and says that a sale actually took place on that day. As to the calls of the 4^th of December, the prosecution says that there was an offer to sell, that offer being by way of sample, and that such an offer is a step in the sale of a drug of dependence.
To prove that the speakers in the telephone calls were discussing the sale of amphetamine or methylamphetamine, the prosecution relies upon the evidence of Detective Brain. Detective Brain has had significant experience in investigation into drug related activities. He has spoken with people dealing in illegal drugs and with informants. As a result of his experience, he was able to give evidence about the meaning of various terms used by dealers in amphetamine and methylamphetamine. He gave evidence that the term “eight-ball” is a code word used by drug dealers to refer to a measure of 3.5 grams of amphetamine or methylamphetamine and that, in December 2003 an “eight-ball” of amphetamine sold for $150 to $300 and an “eight-ball” of methylamphetamine for $450 to $600.
Voice Identification
The prosecution case relies on proof that the accused was the male speaking in the intercepted telephone calls (and “Male2” in the first of those calls). To prove that he was the speaker, the prosecution relies on the evidence of Detective Borgardt that, on the 9^th of April, she recognised the accused’s voice as that of the male speaker. In addition, the prosecution has tendered various recordings of the accused’s voice and has submitted that, upon my comparing his voice on those recordings with the voice of the male speaker in the intercepted calls, I can be satisfied that the accused is the male speaker.
Detective Borghardt’s evidence
Detective Borghardt first heard the intercepted calls on the 3^rd and 4^th of December 2003 or within a couple of days of those dates. Before she heard them, Detective Borghardt believed that the accused was dealing in illegal drugs. As soon as she heard the name “Matt” used in the intercepted calls, she formed the “very strong suspicion” that the male voice was that of Matthew Kokotis. Indeed, she gave evidence that she could well have formed the belief, as opposed to a very strong suspicion, that the voice was that of the accused immediately after she heard the word “Matt”. She also said that, within a couple of days of the 4^th of December 2003, she had formed the view that she had sufficient evidence to arrest the accused. She had, at that stage, never spoken to the accused nor heard his voice in person.
She first heard the accused in person when she attended at the charge counter on the 9^th of April 2004. At that time, she could still remember the sound of the male voice on the intercepted calls, although she said that she could not remember how long before the 9^th of April she had last heard the recordings of those calls. She said that, at the charge counter, she could hear the accused’s voice well and that she decided almost as soon as she first heard him speak that it was his voice on the intercepted calls.
In addition to Detective Borghardt’s evidence of recognising the sound of the accused’s voice, the prosecution has submitted that there are features of the accused’s speech which he shares with the male caller. They are: a distinctive pronunciation of the word “Hello”; a habit of concluding his conversations with the expression “catch ya”; and repetition of the word “yep” in rapid succession.
The Comparison Tapes
The prosecution tendered, in addition to a compact disc recording of the intercepted calls, tape recordings (both audio and visual) of the accused’s attendance at the charge counter on the 9^th of April 2004 and of an occasion on which he spoke to police officers on the 2^nd of May 2004 when they searched a cabin in the caravan park at Warnertown where he was then staying. I was invited both to compare the sound of his voice on those tapes with that of the male voice on the intercepted calls and to notice the similar features of the voices.
The prosecution also tendered a sample of Luke Kokotis’ voice. He was required to undergo a forensic procedure, the taking of a buccal swab, in July 2003. The procedure was recorded and the recording includes his voice. I was invited to notice the difference between his voice and that of the accused.
The Accused’s Case
The accused neither gave nor called evidence.
Directions
The prosecution must prove beyond reasonable doubt each element of each of the two offences charged against the accused.
I remind myself of the presumption of innocence.
I have considered each of the offences separately.
I have not used propensity reasoning in any form.
I have not treated one count as admissible in proof of the other.
I have not used use of the name “Matt” in the intercepted calls as proof of the name of the male caller.
I have drawn no inference adverse to the accused from his failure to give evidence.
Conclusions
I found all of the witnesses to be honest.
I accept Detective Brain’s evidence about the terminology used by drug dealers and about the prices at which amphetamine and methylamphetamine sold in December 2003. Despite accepting his evidence on those topics, I am not satisfied beyond reasonable doubt that the item or items apparently being discussed by the speakers in the intercepted calls was amphetamine or methylamphetamine. The conversations are highly suspicious, but there is no evidence before me other than the contents of the conversations that the speakers were discussing the sale of amphetamine or methylamphetamine. The term “eight-ball” was used only once. It is used by a female speaker. It is unclear whether she was referring to some arrangement about an “eight-ball” between her and the male speaker or between the male speaker and a male referred to as “Richard”. In those circumstances, I am not satisfied beyond reasonable doubt that by “eight-ball” the female speaker was necessarily referring to a drug of dependence. Detective Brain’s evidence about the price of various measures of amphetamine and methylamphetamine does not convince me otherwise. I note, in particular, that he was unable to make sense of the expression “like a five” in one of the calls.
Nor am I satisfied beyond reasonable doubt that the male caller in the intercepted calls was in fact the accused.
I have warned myself that, in the circumstances, it is dangerous to act upon the evidence of Detective Borghardt’s purported voice identification. Detective Borghardt was plainly an honest witness. But, as she readily admitted, she had formed the view well before first hearing the accused in person that his was the male voice in the intercepted calls. She falls into the category of an honest witness who is genuinely convinced of the accuracy of her evidence of voice identification. The dangers of what is called “the displacement effect” are present. It is regrettable that she did not, before she heard the accused’s voice, compare the male caller’s voice with a number of recordings of different male voices, including the accused’s.
I have listened to the tapes and the compact disc of the intercepted calls myself. In doing so, I have not been assisted by any expert evidence about the fidelity or otherwise of any of the recordings. I do not know if the method of recording the intercepted calls can give rise to any distortion of the voices. The recordings of the accused’s voice on the audio and visual tapes were not of good quality. Moreover, there were often a number of speakers speaking at the same time and, in the tape at Warnertown, there was a television on in the background in addition to the voices of police officers speaking on mobile telephones and on police radios. I am unable to conclude, from comparison of the sound of the accused’s voice with the sound of the voice of the male caller in the intercepted calls, that the accused is that male caller.

I have paid attention to the possible features of expression common to the accused and to the male caller. I was unable, on listening to the tape of the proceedings at the charge counter, to hear the accused using the word “catch ya”. He did use the word “Hello” on that occasion and there is clearly a similarity between his pronunciation of that word and the pronunciation of the same word by the male caller. I can attach no significance to his use of the word “yep”. I accept that there is some similarity between his use of the word and the male caller’s use of the word. But “yep” is also used by Luke Kokotis in the tape of his voice and, indeed, by at least one of the police officers during the course of the search at Warnertown.
Bearing in mind the warning which I have given myself about the dangers of acting on Detective Borghardt’s evidence and bearing in mind that, despite some pieces of circumstantial evidence, the case depends on the accuracy of voice identification I am not satisfied beyond reasonable doubt that the accused is the male speaker in the intercepted calls.
Accordingly, I enter verdicts of not guilty on both counts.