R v Mouhalos No. Sccrm-98-27 Judgment No. S6743

[1998] SASC 6743

R  v  MOUHALOS

Court of Criminal Appeal:  Doyle CJ, Olsson and Bleby JJ

DOYLE CJ

Introduction

This is an appeal against conviction.

The appellant, Mr Mouhalos, was convicted, after a trial before a judge and jury for having a prohibited drug, namely methylamphetamine, in his possession for the purpose of sale, contrary to s32(1)(e) of the Controlled Substances Act 1984 (SA).

Background

On the night of Thursday 9 May 1996 Mr Mouhalos, and a man called Putland (“P”) arrived in the Sydney suburb of Glebe.  They went to a flat in Glebe.  They had driven hire car from South Australia.  A man called Georgiou (“G”) lived at the flat.  He was suspected of drug dealing, and his flat was under police surveillance at that time.  The flat had been fitted with listening devices to enable conversations inside the flat to be heard by police and recorded.  The listening devices were installed, pursuant to a warrant issued by a judge of the New South Wales Supreme Court, under the Listening Devices Act 1984 (NSW) (“the NSW Act”). The front entrance to the flat was also under surveillance by a video camera, as was the car park of the block of flats.

From the time that Mr Mouhalos and P arrived at G’s apartment they were subject to surveillance.  The surveillance was conducted by direct observation by detectives, and using the video cameras.  Conversations in the apartment, and movements in and out of the apartment, were monitored and recorded.

On Monday 13 May 1996 they left to return to Adelaide.

The following morning, Tuesday May 14, the South Australian Drug Task Force stopped Mr Mouhalos and P in the hire car at Tailem Bend.  The South Australian Police had received some information from the NSW Police about Mr Mouhalos and P, and the car in which they were travelling.

The police found P to have in his possession 3.03 grams of pure methylamphetamine mixed in 100 grams of white powder, which had been placed in a heat-sealed plastic bag.  This package was found inside the left trouser leg of P’s tracksuit pants.  Another plastic bag containing methylamphetamine was found under the waistband of the tracksuit.  No drugs were found in the possession of Mr Mouhalos at the time that the police intercepted the two of them.

P was immediately arrested.  Mr Mouhalos was not arrested until 20 June after further police investigations.

P was jointly charged, with Mr Mouhalos, with possessing a prohibited drug for sale and entered a plea of guilty.  Mr Mouhalos pleaded not guilty, and was subsequently convicted upon the verdict of a jury.

Three grounds were argued on the appeal.  The first ground was that the evidence of the conversations that took place within the flat was not lawfully obtained, and that the judge should have excluded the evidence in the exercise of his discretion.  The second was that the conviction was unsafe and unsatisfactory, because of the unreliability of the evidence of two police officers who purported to identify the voices recorded by the listening devices.  The third ground complained of the judge’s directions relating to the voice identification evidence.

The prosecution case

The prosecution case was that Mr Mouhalos and P were engaged in a joint enterprise and that Mr Mouhalos and P were jointly in possession of the prohibited drug which was found on P.  It was the prosecution case that Mr Mouhalos and P visited Sydney for the purpose of paying G some money that was owed to him by Mr Mouhalos, and to enable Mr Mouhalos to pick up drugs to take back to South Australia for sale there.  The prosecution alleged, on the basis of what occurred in Sydney and relying on certain other matters, that Mr Mouhalos and P were in possession of the prohibited drug jointly at the time they were intercepted at Tailem Bend.  The prosecution submitted that Mr Mouhalos knew P had the methylamphetamine.

There was no direct evidence linking Mr Mouhalos to possession of the methylamphetamine.  The prosecution case was entirely circumstantial.  The prosecution relied upon a number of items of circumstantial evidence.  However, the prosecution case hinged on certain voice identification evidence.  Without this evidence a jury, acting reasonably, could not have convicted Mr Mouhalos.  This is merely to emphasise the importance of that evidence.

A Detective Schulz interviewed Mr Mouhalos on 20 June 1996 for about thirty minutes.  This interview was played to the jury and they were able to compare Mr Mouhalos’ voice in that interview with the voices on the surveillance tapes.

To help the jury follow and understand the video and audio evidence resulting from the surveillance of G’s flat, they were given a chronology and transcripts of the audio tapes.  The chronology summarised the dates and times of movements of people in and out of the flat.  It gave the names of these persons where known.  The voice identification evidence, if accepted, established that Mr Mouhalos participated in incriminating conversations.  This evidence, together with other evidence, was capable of establishing beyond any reasonable doubt that Mr Mouhalos was at G’s flat in Sydney to pick up drugs and to transport them to South Australia for the purpose of sale in South Australia.

Photographs taken by Detective Seary and video pictures established without any doubt that Mr Mouhalos was in G’s flat at Glebe at various times from May 9 to May 13.

The prosecution relied on evidence indicating a friendly relationship between Mr Mouhalos and G.  This familiarity was graphically illustrated by video evidence showing Mr Mouhalos and G enthusiastically shaking each other’s hand upon the arrival of Mr Mouhalos at the flat.  This stood in contrast to the reception P received from G upon arrival.  The prosecution said this showed that Mr Mouhalos and G, unlike G and P, had an existing friendly relationship.  The evidence suggested that Mr Mouhalos, and not P, was the organiser of the trip to Sydney.  As well, it was Mr Mouhalos who had hired the car.

Reliance was placed upon items found in G’s flat, which was searched by the New South Wales Police on May 15.  A number of items were seized.  They were a false driver’s licence, five $1000 money orders from the Glebe post office, a heat sealing machine, plastic bags and a ledger book with a list of people’s Christian names, and numbers written underneath.

The prosecution said that the book recorded names of people who owed money to G.  One of the names on the list is “Bill.” The prosecution suggested that that this was a reference to Mr Mouhalos.  An amount recorded under his name could be linked to one of the recorded conversations.  If the link was made, one could conclude that this was a record of money owed by Mr Mouhalos to G.

The prosecution said that the five $1000 money orders related to $5000 sent by money order from the Plympton Post Office in South Australia to the Glebe Post Office at about noon on 13 May.  There was no doubt that G had collected the money orders from the Glebe Post Office.  The money orders were linked to an address at Novar Gardens, which address appeared on the money orders.  Mr Mouhalos’ car was later found at that address by the police.  The money orders were in the name of Con Stantanin.  This was the name found on a false South Australian driver’s licence discovered in G’s flat.  The prosecution said that phone calls from Mr Mouhalos’ mobile phone to Adelaide on 13 May, verified by telephone accounts, were to organise this transaction between G and Mr Mouhalos.  One of the recorded conversations was capable of leading to the conclusion that it recorded Mr Mouhalos arranging for the money to be sent.  That, of course, depended upon a conclusion that the relevant voice was that of Mr Mouhalos.  The jury was asked to infer a debtor/creditor relationship between Mr Mouhalos and G from this material.  The other obvious inference was that the money was used to pay for the drugs.

The prosecution also relied on the nature of the plastic bags found on P.  These plastic bags were similar to those found in G’s flat when it was raided.  The plastic bags in P’s possession could have been heat sealed on the machine in G’s flat.  Reference was also made to the similarity of the drugs found on P and drugs found in G’s unit, when analysed as to content and as to ratio of drugs to the cutting agent.

The jury was asked to infer from all this circumstantial evidence that Mr Mouhalos was in Sydney organising a drug transaction with G, that Mr Mouhalos was the financier and prime mover, with P left to do the packing as part of the joint enterprise.

The defence case

Briefly summarised, the defence case was that the nature and quality of the voice recordings were such that, when regard was had to the demonstrated and admitted errors in the voice identification evidence, to alterations to the transcript of the conversations, and to the dangers inherent in voice identification evidence, there had to be a reasonable doubt as to who was speaking at the time, and that Mr Mouhalos was entitled to the benefit of that doubt.

Method of voice identification

Police officers (Kaizik and Heenan) gave evidence identifying the voices on the tapes, including the voice of Mr Mouhalos.  These officers were involved in conducting the surveillance of the unit and listened to the conversations as they occurred.  Their evidence was not based upon having heard the voice before, or upon having heard it subsequently.  This was not a case where a witness identified a voice on the basis of having heard it before, as in R v Bueti & Morrissey (Unreported, Court of Criminal Appeal, 12 December 1997, Judgment No. S6479). In such a case the witness must have heard a sufficient amount of the accused’s speech to be familiar with it because, in saying that the voice at the scene of the crime is the accused, the witness is basing a conclusion on a memory of the accused’s voice: see Bulejcik v R (1995) 185 CLR 375 at 394 per Toohey and Gaudron JJ. Nor was this a case where a witness identified a voice on the basis of having heard it at the scene of a crime and then having heard it subsequently, as in R v Smith (1990) 50 ACrimR 434. In such a case there should be something distinctive about the voice at the scene of the crime, sufficient to embed it in the mind of the witness so as to enable him or her to say that it is the same voice which he or she heard subsequently: Bulejcik (supra) at 395.

In the present case, each of the police witnesses gave their evidence after having listened to the tapes many times and for many hours.  However, neither Kaizik nor Heenan had any prior familiarity with the voices of Mr Mouhalos or P.  They had only ever heard the voices on tape.  Neither of the police witnesses was an expert in voice identification.  They also acknowledged that the comparison of voices was made difficult by the general quality of the tapes and by background noise in the flat.  Indeed, there were some inconsistencies between the original transcripts of the conversations and the final version of the transcripts provided to the jury as an aide-memoire.  The original transcripts were prepared after the tapes had been listened to on a limited number of occasions.  The final transcripts were prepared by the officers who originally heard the conversations, with the assistance of their notes made contemporaneously with the conversations, and after many hours of listening and relistening to the tapes.

Their evidence identifying Mr Mouhalos’ voice was based upon a process of elimination, reconstruction and deduction.  Based upon their own visual observations of persons entering and leaving the flat, most of which were recorded on video and for which contemporaneous notes (log sheets) were made, they were able to identify occasions when the only persons in the flat were G, P and Mr Mouhalos or just two of them.  The video cameras outside the flat were also used for this.

Having reduced the possibilities to three people, the next step was to work out which of the three was speaking, by a process of elimination.  From prior conversations they had had with G, they knew his voice, and thus when he was speaking.  Further, they said that they were able to identify P’s voice because there was a time when only G and P were in the house together.  Hence, by recognising the voices of P and G, and by knowing who was and was not within the flat at the time of monitoring, they were able to deduce when the voice speaking was that of Mr Mouhalos.

Some of the conversations included references to names or certain events which assisted, in conjunction with the other evidence, in inferring the identity of the persons talking.  For example, according to Kaizik and Heenan Mr Mouhalos had identified himself at various times as “Bill”.  These acts of self-identification assisted in identifying the voice on those occasions as his.

Each of Mr Mouhalos, P and G had a mobile phone.  Some use was also made of records of the time of calls made on these phones, the hypothesis being that each man would have used his own mobile phone.

In summary, the process by which the voices, recorded by the listening devices, were identified involved the following elements.  First, observations by the witnesses and by video camera of the flat to identify who was present at different times.  At times there were people present other than the three men already referred to.  Secondly, some prior acquaintance with G’s voice.  Using those observations, and the prior acquaintance with G’s voice, the witnesses made what might be called a tentative identification of the voices of Mr Mouhalos and P, using selected sample conversations.  From that they moved to an overall identification process using the observations and limited acquaintance with G’s voice.  This involved repeated listening to the tapes, the use of the content of the conversations, and the use of records of the use of mobile phones when what was heard on the tapes appeared to be one end of a telephone conversation.

There are obvious difficulties about the process.  The witnesses acknowledge that.

Admissibility of the evidence as evidence of voice identification

The admissibility of the evidence was not challenged on appeal.  Nevertheless, it is helpful to consider the basis upon which the evidence was admissible and was admitted.  I say that because an understanding of the reason for admitting the evidence assists in considering the challenge to the conviction on the ground that it is unsafe and unsatisfactory.

In Bulejcik the High Court had cause to consider the admissibility of evidence of what can conveniently be called voice identification.  The court did not have to determine the principles upon which such evidence might be admitted.  Nevertheless, there is nothing in the judgments which casts any doubt upon the admissibility of evidence of voice identification given by a person who is not an expert in that field.  In saying that, I do not convert a failure to doubt admissibility into affirmative support.  I merely make the point that Bulejcik does not present an obstacle to the admissibility of the evidence in question in the present case. Brennan CJ dissented in the result. In the course of his judgment he said (at 382):

“Evidence of identification by voice recognition is not a distinct category of evidence, though its probative value may oftentimes be dubious and will vary according to the circumstances of each case.  The test of its admissibility must be, in my opinion, one of degree.  The prescription of particular conditions of admissibility is not supported by any principle of the law of evidence.  Provided a reasonable jury could find, or be assisted in finding, a relevant fact upon consideration of evidence of voice identification that is admissible under the ordinary rules of evidence, there is no reason why the tender should be rejected.

Toohey and Gaudron JJ did not find it necessary to express a view on this point: see at 393-394.  Nor did McHugh and Gummow JJ, although the tenor of their comments suggests that they were inclined to agree with what Brennan CJ said: see at 406-407.

There is no other authority in point that binds this court, so far as I am aware.  I agree with what Brennan CJ said, and I respectfully adopt his approach.  In doing so I also agree with, and respectfully adopt, the approach of Ormiston J in R v Harris(No.3) [1990] VR 310. That case dealt with evidence of voice identification similar to the evidence in question here. It was evidence given by a police officer purporting to identify voices recorded on tape recordings. She had listened to the tapes many times to make the identification. Ormiston J reviewed a number of Australian decisions. I will not go over the same ground. I repeat, that the admissibility of the evidence was not challenged here, and although I agree with the approach of Brennan CJ and Ormiston J, this is not the occasion to resolve any issues of principle. I am doing no more than indicating the basis upon which I approach the evidence in question. In the course of his judgment, Ormiston J denied (318)

“...  that voice recognition is a field of expertise about which only experts may give evidence.”

I agree.  He went on to say (at 318):

“Consistently with Gowan J’s comments in Donnini’s Case the process of identifying a voice is a matter of everyday experience and one which is normally incapable of precise analysis.  Notwithstanding the well-known authorities on the question of expert evidence cited to me, this is clearly a field in which non-expert opinion may be received, even if it were to involve opinion rather than observation in the widest sense.  It follows that the witness, Miss Corrie, would in the ordinary course of events be entitled to give evidence of her recognition of specific voices.

Once again, I agree.

Ormiston J went on to consider whether the evidence should be excluded in the exercise of the discretion based on the interests of justice.  He applied the test of whether there was a danger of the jury being “irrationally impressed” by the evidence (at 319).  He decided that the evidence should be excluded.

Ormiston J referred to the following factors.  The police officer had limited familiarity with the voices of the persons whom she purported to identify.  That is certainly the case here.  But his reason for excluding the evidence was that the process undertaken by the police officer, while quite logical and sensible, was not capable of being unravelled before the jury.  By this he meant that the elements of the process of decision making could not be examined satisfactorily before the jury.  The reasons for that were these.  First, the police officer had begun the process with transcripts that made tentative voice identifications, and these were made by other persons who, presumably, were not to be called as witnesses.  In other words, one could say that the police officer began with a draft transcript, that contained identifications made by other persons.  Secondly, the police officer was aided by other police officers who also listened to the tapes.  There was an element of joint decision making.  Thirdly, the police officer had made use of the contents of the conversations to assist in the process of identification, but also had used the content of conversations recorded on other tapes that were not to be put in evidence.  Those factors in combination meant that the opinion finally expressed by the police officer, in the transcript that she prepared, could not be tested satisfactorily.  And, one must remember, she was not giving an expert opinion.  Those difficulties are not present here.  The logs recording the movement of people in and out of the flat were there to be examined, and could be related to the tapes.  Video recordings were available to check against the logs.  The mobile phone records were there to be used to test the identifications made.  Each police officer was expressing his own opinion.  There was, however, some checking done with other police officers (see voire dire, T102-T103 cf T179, T181).  The contents of conversations were used as aids, but the relevant conversations were before the court.

It was not argued in this appeal that the evidence should have been excluded by the judge in the exercise of his discretion.  But, as it seems to me, this was not a case in which it could be said that the opinions expressed by the police officer could not fairly or satisfactorily be tested before the jury.  The difficulty that caused Ormiston J to exclude the evidence in the case before him is not present in this case.

Exclusion of evidence obtained unlawfully

The first point argued was the judge should have excluded the evidence, in the exercise of the discretion to exclude evidence that is obtained unlawfully: see The Queen v Swaffield (1998) 72 ALJR 339; Nicholas v The Queen (1998) 72 ALJR 456.

The evidence was obtained pursuant to a warrant validly issued under the NSW Act. That was conceded. The warrant was granted on the basis of a suspicion that the offence of supplying a prohibited drug, namely cocaine, was about to be committed. The warrant authorised the use of listening devices to record the private conversations of G “... and in respect of any such conversation, of any person participating with him therein.” The recorded conversations, to the extent that they relate to the supply of a prohibited drug, appear to relate to the supply of methylamphetamine by G to Mr Mouhalos and to P. On this basis, it was argued, that either the recording of the conversations, or their use for the purpose of prosecuting Mr Mouhalos, was unlawful.

There is nothing at all in this point. The use of the listening device was conceded to be lawful: see s5 of the NSW Act. The communication of the conversations overheard was, therefore, not unlawful: see s6 of the NSW Act. Evidence of the conversations was not rendered inadmissible in a NSW court by s13 of the NSW Act. That section renders inadmissible evidence of a private conversation obtained by the use of a listening device in contravention of s5. The use of the listening device did not contravene that section. Section 14 of the NSW Act deals with the admissibility of evidence of a private conversation that 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 ...” I doubt whether that provision applies to the conversations in question. Even if it does, that provision renders evidence of the conversations admissible because, as counsel conceded, a warrant could have been obtained in New South Wales on the basis of a suspicion that the offence of supplying methylamphetamine was about to be committed: see s14(2) of the NSW Act.

The evidence was lawfully obtained under the law of New South Wales, and the evidence was admissible before a New South Wales court.

In any event, some of that is unimportant.  In a court of this State, the admissibility of evidence is determined by South Australian law.  A discretion  to exclude the evidence arises if the evidence has been obtained unlawfully.  Here, under the law of New South Wales, which is the law to which reference must be made, the evidence was obtained lawfully.  If the admissibility of the evidence before a New South Wales court is relevant, its admissibility is established.  If the situation is to be tested as if it had occurred in South Australia, the answer is the same.  A warrant could have been obtained for the use of a listening device.  If the warrant had been lawfully obtained on the basis of a suspicion that cocaine was about to be supplied, in my opinion the evidence could have been used to support a prosecution based upon the supply of methylamphetamine: R v Daniele and Brizzi (1989) 49 ACrimR 44 at 47.

In my opinion, the discretion to exclude the evidence did not arise.  I reject the submission.

Unsafe and unsatisfactory

The submission on this ground can be expressed simply.

The two police officers in question conceded that a significant number of changes in the ascribing of voices to particular individuals had occurred between the compiling of an earlier version of the transcript of the conversations, and the version finally put before the jury.  They were cross-examined on many of these changes.  They were plain to see.

The police officers were cross-examined on the basis that on several occasions the content of a conversation suggested that their voice identification was wrong.  This does not appear to have caused the police officers to change their opinion.  For what it is worth, in one case, relating to a court appearance (T219-T220), I suspect that the identification was erroneous.

The police officers acknowledged that no attempt had been made to submit the tapes to expert scrutiny: T230.

There were several instances in which a voice identification made by one of the police officers in court when the tapes were played for the jury, conflicted with the identification made in the transcript.  The police officers were cross-examined about this: see, for example, T228, T234, T237.

In my opinion, these matters did not mean that the evidence given by the police officers was so unreliable that the jury, acting reasonably, could not be satisfied of guilt beyond reasonable doubt: see Chidiac v The Queen (1991) 171 CLR 432 at 444 and M v The Queen (1994) 181 CLR 487 at 494.

It is not surprising that, in the course of preparing the transcripts, some changes of mind occurred.  The process of voice identification was not an instantaneous one.  The police officers acknowledged that the process involved the repeated listening to the tapes, and the use of the logs and the use of the contents of the conversations.  To the extent that changes of mind might be significant, they were demonstrated to the jury and were able to be assessed by the jury.  As to the suggested errors that were put by counsel to the witnesses, in my view they are neither numerous nor particularly significant.  Once again, the jury would have had no difficulty in assessing their significance.  The same applies to the conflicts between the evidence given in court and the identifications recorded on the transcript.

In considering the admissibility of the evidence I have alluded to the difficulties inherent in the process of voice identification that was undertaken.  They are not to be underestimated.  But I consider that the evidence was admissible, and was rightly admitted.  It might be said that in relation to admissibility, the court is primarily concerned with the soundness of the technique used.  In relation to the ground of appeal it could be said, the concern is with the reliability of the application of the process to the facts.  For the reasons that I have indicated, I do not accept that the matters raised indicate such unreliability in the carrying out of the process of voice identification that a jury could not reasonably be satisfied of guilt beyond reasonable doubt, relying upon the evidence of voice identification.

Directions to the jury

The final complaint was that the warning that the trial judge gave about this evidence, and the guidance that he gave to the jury, were inadequate.

I consider that the case called for a careful and clear warning, and for clear guidance to be given to the jury about the process of voice identification, the dangers in such evidence, and the care needed if reliance was to be placed upon it.

The judge did all of that.  He emphasised that the evidence of voice identification was critical to the prosecution case.  He told the jury that they could not convict unless satisfied beyond reasonable doubt that the voice identification was correct.  He told the jury to scrutinise the evidence “with great care”.  He told the jury in terms that the experience of the courts was that honest and apparently reliable witnesses might be mistaken in such matters.  He gave the jury another warning in similar terms a little later.  He twice told the jury that in such matters mistakes can and do occur.  He referred to the obvious difficulty that the witnesses had had in the process of voice identification.  He repeated his earlier warning.

He told the jury that parts of the tape were indistinct.  He said that in such cases they should disregard the conversations.  He canvassed a number of matters of detail relating to the evidence of voice identification.  He reminded the jury that the witnesses had no prior familiarity with the voices.  He reminded the jury of the alterations that had occurred between the first transcript and the final transcript.

I can find no fault with the judge’s directions.

Conclusions

In my opinion all of the grounds of appeal fail.  The appeal should be dismissed.

OLSSON J

I agree.

BLEBY J

I agree that the evidence of voice identification was admissible as such for reasons given by the Chief Justice.  I also agree that there is no substance in the argument that the evidence was obtained unlawfully and should have been excluded.

The use of the listening device and its legality were governed by the law of New South Wales, being the State in which the listening device was used.  There was no dispute that its use in New South Wales in the circumstances in which it was used was lawful.  Communication or publication of the conversations was therefore not unlawful: Listening Devices Act 1984 (NSW) s6. Section 14 of the New South Wales Act has the effect of restricting the admissibility in certain circumstances of evidence of a private conversation obtained lawfully but inadvertently, where the warrant for the use of the listening device was not granted for the purpose of allowing that particular evidence to be obtained. It is not a section which renders certain evidence admissible. It acts as a qualification on the admissibility of certain evidence lawfully obtained by means of a listening device.

The evidence obtained in this case against the appellant may or may not have been admissible against him in a Court in New South Wales.  I incline to the view that it was.  However, that is not to the point.  Whether evidence of the conversation is admissible in South Australia is governed by South Australian law.  Although the Listening Devices Act 1972 (SA) regulates the use of listening devices in South Australia, neither it nor any other Act contain any provisions restricting the admissibility of evidence of conversations heard by means of a listening device, whether authorised or not.  That is left to the general law of evidence applicable in South Australia.  As the evidence was lawfully obtained in New South Wales, there were no relevant discretionary reasons why it should not be admitted into evidence in South Australia.  See R v Swaffield (1998) 72 ALJR 339. It was properly admitted.

I also agree that the verdict cannot be said to be unsafe and unsatisfactory.  I agree with the reasons given by the Chief Justice.  Not only was the jury able to assess the evidence of the police officers as to changes made in the voice identification, but there was evidence to show that the appellant was present during all the relevant conversations, and a great deal of additional and very relevant circumstantial evidence against the appellant, to which the Chief Justice has referred.

I also agree that the directions to the jury regarding the evidence of the voice identification were entirely appropriate and were all that was necessary. 

I too would dismiss the appeal.