R v Mouhalos No. DCCRM-97-38 Judgment No. D3666

[1997] SADC 3666

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Anderson

Hearing

13/08/97.

Catchwords

PRELIMINARY APPLICATION Application by the accused that evidence legally obtained in NSW be excluded. Application refused.

Materials Considered

• Listening Devices Act (1984) NSW;
• Drug Misuse and Trafficking Act (1985) NSW;
• Butera v DPP (Victoria) (1987) 164 CLR 180, referred to.
• R v Lee (1970) 126 CLR 321;
• Cleland v R (1982) CLR 1;
• Bulejcik v R (1996) 135 ALR 517, applied.
• R v Leo, Talbot and Morgan (1996) 187 LSJS 132, discussed.

Representation

Director Of Public Prosecutions R:
Counsel: MR J WHITE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused BILL MOUHALOS:
Counsel: MR D HALL - Solicitors: DAVID SINCLAIR HALL

DCCRM-97-38

Judgment No. D3666

27 August 1997

(Criminal)

R v Mouhalos

Criminal

Judge Anderson

Ruling

The accused is charged, together with one Putland, with possessing amphetamine and methylamphetamine for sale.Putland has entered a plea of guilty and awaits sentence.

Consequent upon a Rule 9 Notice filed by the accused a voir dire hearing was commenced on 13 August 1997.Para 3 of that Notice was argued initially. Briefly put, it seeks that the evidence obtained in New South Wales be excluded.

There is a substantial volume of evidence which the Crown seeks to lead which was obtained by the New South Wales Police.This evidence is in the form of video and audio surveillance tapes.These were obtained after a warrant was issued by a judge of the Supreme Court of New South Wales pursuant to the Listening Devices Act 1984 (NSW).No issue is taken with the granting of the relevant warrant on 24 April 1996.The warrant was obtained in relation to the supply of a prohibited drug, identified therein as cocaine, which is an indictable offence pursuant to s25 of the Drug Misuse and Trafficking Act 1985 (NSW).The warrant was obtained pursuant to s16(2) of the LDA 1984 (NSW).

S14 of that Act is in these terms:

"14 Admissibility of evidence of private conversation when obtained inadvertently pursuant to warrant

(1)Where a private conversation has inadvertently or unexpectedly come to the knowledge of a person as a result, direct or indirect, of the use of a listening device pursuant to a warrant granted under Part 4:

(a) evidence of the conversation, or

(b) evidence obtained as a consequence of the conversation so coming to the knowledge of that person.

may be given by that person in any criminal proceedings notwithstanding that the warrant was not granted for the purpose of allowing that evidence to be obtained.

(2)Subsection (1) does not render any evidence admissible if:

(a)the evidence relates to an offence in respect of which a warrant could not be granted under Part 4, or

(b) the application upon which the warrant was granted was not, in the opinion of the court, made in good faith."

In this matter it is not disputed that the warrant was directed towards the obtaining of admissible evidence relating to one Constantine Georgiou.After the surveillance devices had been installed within and without Georgiou's apartment 24 hour monitoring thereof occurred.

On 9 May 1996 the accused, in company with Putland, arrived at Georgiou's apartment.From that time they were subject to surveillance.Their conversation and physical movements were monitored and recorded.

On 13 May 1996 they left to return to Adelaide.They were travelling by motor vehicle.The following morning near Tailem Bend their vehicle, with Putland driving and the accused a passenger, was stopped and searched.Drugs were found about Putland's body.No drugs were found with the accused.About a month later he was also charged with possessing drugs for sale.

There is no doubt that had the surveillance of the type which occurred in New South Wales taken place in South Australia pursuant to the Listening Devices Act 1972 (SA) evidence obtained beyond the purport of the warrant may not be admissible against persons other than those named in a properly issued warrant. The South Australian Act does not contain a section similar in terms or purport to s14 of the New South Wales Act.

Mr Hall of Counsel for the accused submitted, as is set out in his Notice, that as the devices were installed for a specific purpose named in the warrant the evidence thereby obtained in relation to the accused should be excluded in its entirety as being outside the scope of the authority given to the Police.

Mr White for the Crown seeks to have the impugned evidence available either as directly relevant and therefore admissible, or pursuant to a discretion favourably exercised.

In my opinion it is of no significance that such evidence as was obtained outside the intended scope of the warrant may not be admissible in South Australia had it been obtained in similar circumstances.What is important is that the evidence obtained in New South Wales was lawfully obtained and, even though indicative of the commission of an offence other than that named in the warrant, and even though involving different and previously unknown persons, it is admissible in New South Wales pursuant to s14 of the New South Wales Act. As such it is not illegally obtained evidence and there is no need to consider the exercise of a Bunning v Cross type discretion.

Would the admission of this evidence against the accused or his trial in South Australia be unfair?This was the contention of Mr Hall.

In my opinion the answer to this question must be in the negative.There is no question of unfair conduct or behaviour on the part of the investigating authorities.It is trite to say that evidence lawfully obtained cannot be unfair:R v Lee(1970) 126 CLR 321 as approved in Cleland v R (1982) 157 CLR
1 @ 6.

The onus is upon the accused to show that the receipt of the evidence would be unfair (Cleland per Deane J @ p19).On this point of the Notice I am of the view that the accused has failed so to do.As presently advised the evidence is admissible as not illegally or unfairly obtained when the competing interests discussed in the cases are considered.Subject to its relevance I declined to grant the application in terms of paragraph 3 of the Notice for these reasons.

The first two grounds set out in the Rule 9 Notice were then argued. Those grounds are:

"1.The Defence says that any evidence by way of alleged voiceidentification of the Defendant from tapes obtained as a result of the installation of listening devices under the listening Devices Act 1984 NSW should be excluded as the evidence to be adduced by the Crown is not the evidence of experts in the area of voice identification.

2. The Defence says that any evidence from officers of the NSW Police Force as to the identification generally of the Defendant should be excluded from the Trial of this matter as they do not have expertise in the identification of the Defendant and that if records of observations are allowed that this should be a matter for the jury to decide as to identification."

As it transpired nothing of substance was said about paragraph 2 because it became apparent in the course of the voir dire hearing that this was an issue which would resolve itself should there be a trial.It will be for the jury to be satisfied beyond reasonable doubt as to the identity of the accused. In this instance, because of the existence of the video recording and photographs, no real issue will arise in relation to paragraph 2 of the application and it is not necessary for me to say more about it.

It is no longer the law, if indeed it were so, that voice identification evidence may only be given by experts or by those who are familiar with a particular voice or who are able to identify particular characteristics about a voice (distinctiveness).Since Bulejcik v R (1996) 135 ALR 517 those matters go to weight and are therefore for the jury.

On the evidence which has been given upon this application there is no reliance upon prior or subsequent familiarity with what is alleged to be the voice of the accused.Rather here, where the location at which the accused and Putland attended had been under police surveillance pursuant to the Listening Devices Act 1934 (NSW) for nearly two weeks prior to their arrival, the basis put forward to ground the identification of the voice of the accused is the use of deduction, elimination of others and the fact that the voice "Bill" referred to himself, made telephone calls to his local Adelaide number on his mobile telephone and on one occasion gave out a mobile telephone number which is alleged to be that registered in his name.It is the Crown case that the "quality and quantity" (Bulejcik @ p53) of the recorded voice was such that the listening and observing police officers, with their contemporaneous notes, should be permitted to say in evidence which voice on the recording is that of "Bill".Of course they were not to know any more of "Bill", including his surname, until after the South Australian Police had subsequently intervened at their request.

Should this evidence be admitted it may well turn out to be extremely probative of the Crown case.There is no doubt, as a corollary, that it has the capacity, if accepted by the jury, to be extremely prejudicial to the accused and to make the conduct of his defence a tactically difficult thing. That, however, is of no relevance.The evidence should only not be admitted, if relevant, where it is insufficiently probative or is excessively prejudicial to the accused.

This was Mr Hall's position.He submitted that the evidence has the capacity to be so prejudicial that any probative value it holds is outweighed and hence it should not be admitted.Because there was nothing obviously referring to amphetamines on the tapes, he submitted that they were not relevant and therefore should not be admitted.What is on the tapes is for the jury to assess.The offence does not need to be specifically identifiable before they may be admitted.

Whilst there are many criticisms of the nature and quality of the Crown evidence on the voir dire, at the end of the day, I am not persuaded that those criticisms go other than to the weight of otherwise admissible evidence.The lack of clarity on the tapes is not such as to require their non use.

I agree with Mr White of Counsel for the DPP that the evidence the subject of this application is relevant and admissible.It is not in the same category as the evidence considered by Judge David in R v Leo, Talbot and Morgan (1996) 187 LSJS 132.There the police officer compared taped voices with subsequent short interviews in which little was said.Here the police officers Kaizik and Heenan already knew the voice of their target.They had been listening to him for almost two weeks when the accused and Putland arrived. By use of observations, mostly recorded on video and in contemporaneous notes, they were able to eliminate others, refer to the various acts of alleged self identification by "Bill", and form an opinion as to who was speaking at different times.

They were able to do so notwithstanding that at times and for quite lengthy periods the tapes are indistinct.These police officers were in a good position to identify the voices, including "Bill", and that is so even though at times the tapes are indistinct and there has been some uncertainty leading to a change of opinion or to no opinion being expressed by them.That that should be so goes to weight and not admissibility. Even though the jury may have intermittent portions of audible tape available to them the relevance and the capacity to be probative of those audible portions outweighs whatever prejudice to the accused may attach to their admission.

Mr Hall criticised of the manner in which the transcriptions of the recordings were produced.These transcriptions are not evidence and are useful only as an aide for the jury:Butera v DPP (Victoria) (1987) 164 CLR 180.

Other criticisms as to the identity of persons present or not present at particular times are also a matter of weight.

In my opinion each of the three New South Wales police officers is able to give evidence as to which voice, in his opinion, is "Bill".

The application in paragraph 2 of the Rule 9 Notice is refused.