R v Phan - [2017] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHAN
[2017] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
23 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - EVIDENCE
CRIMINAL LAW - PROCEDURE - INTERPRETERS AND THE INTERPRETING OF EVIDENCE
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - LAY OPINION - BASIS OF OPINION
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - VOICE IDENTIFICATION
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - VOICE IDENTIFICATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
Appeal against conviction.
The appellant was convicted by a jury in the District Court of one count of knowingly take part in the sale of heroin contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA).
On 3 May 2007 South Australian Police Officers and agents from the Australian Crime Commission observed a male and a female arriving from Sydney. The male and female observed, together with two others, travelled to a premises at Virginia. Officers searched the premises and located five packages each containing a substance which included heroin. The appellant was not one of the four people at the airport nor at the Virginia premises.
The prosecution case involved some 62 intercepted phone calls which were played to the jury. 61 of those phone calls were conducted primarily in the Vietnamese language. In those calls the appellant was said to have arranged for the substances containing heroin to be transported from Sydney to Adelaide.
A Vietnamese interpreter, Mr Tran, gave evidence over objection that each of the 62 phone calls featured the same male speaker whom he identified by a name used in some of the calls as “Hai”. The jury had the benefit of transcripts of those phone calls which Mr Tran and another Vietnamese translator had prepared.
It was the prosecution case that the appellant was Hai. The appellant did not give evidence. Proving that the appellant was “Hai” was achieved by circumstantial evidence.
The appellant appeals against his conviction on the grounds that the Judge erred in law in admitting the evidence of Mr Tran, that the Judge erred by failing to adequately direct the jury of the dangers of accepting Mr Tran’s evidence of voice comparison, and that the verdict of the jury was unsafe and unsatisfactory.
Held per Hinton J (Kelly and Nicholson JJ agreeing), dismissing the appeal:
1. Mr Tran’s evidence of voice comparison was admissible to assist the jury because of the sheer volume of intercepts, in accordance with R v Solomon (2005) 92 SASR 331.
2. The Judge did not err in his directions to the jury as to the dangers of accepting Mr Tran’s evidence of voice comparison.
3. The verdicts of the jury were not unreasonable or insupportable having regard to the whole of the evidence.
Controlled Substances Act 1984 (SA) s 32, referred to.
Bulejcik v The Queen (1996) 185 CLR 375; Butera v The Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Solomon (2005) 92 SASR 331, applied.
R v Menzies [1982] 1 NZLR 40; Smith v The Queen (2001) 206 CLR 650, discussed.
Irani v The Queen (2008) 188 A Crim R 125; Kheir v The Queen (2014) 43 VR 308; Li v The Queen (2003) 139 A Crim R 281; Libke v The Queen (2007) 230 CLR 559; Lithgow City Council v Jackson (2011) 244 CLR 352; Nguyen v The Queen (2002) 26 WAR 59; R v Baden-Clay (2016) 258 CLR 308; R v Korgbara (2007) 71 NSWLR 187; R v Leung (1999) 47 NSWLR 405; SKA v The Queen (2011) 243 CLR 400; The Queen v Bonython (1984) 38 SASR 45; The Queen v Hillier (2007) 228 CLR 618; The Queen v Nguyen (2010) 242 CLR 491; Tran v The Queen [2016] VSCA 79, considered.

R v PHAN
[2017] SASCFC 70
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J.

I agree that the appeal should be dismissed for the reasons given by Hinton J.
NICHOLSON J.
I agree with the orders proposed by Hinton J for the reasons he has given.
HINTON J.
Introduction
On 29 March 2016, after a trial in the District Court before a judge and jury, the appellant, Mr Chien Cong Phan, was convicted of one count of knowingly take part in the sale of heroin, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). He now appeals against his conviction.
Critical to the prosecution case was some 62 intercepted telephone calls. In those calls, all bar one of which was conducted primarily in the Vietnamese language, the appellant was said to have arranged for a substance containing 237.1 grams of heroin to be transported from Sydney to Adelaide. On the prosecution case the appellant was one of the speakers in each of the 62 calls. Proof of that fact involved two steps. First, that there was common to each call one speaker. Second, that the appellant was that common speaker.
Acceptance of the evidence of Mr Huu Tran, a Vietnamese interpreter, was indispensable to proof of the first step. Mr Tran gave evidence, over objection, that the voice of a male in each of the 62 calls, identified by Mr Tran in each call after each was played to the jury, was the voice of the same male. He did not know that person and did not know the appellant. Proof of the second step was then achieved by circumstantial evidence.
The appellant contends that the trial Judge erred in law in admitting the evidence of Mr Tran. He argues that the evidence was of an opinion that was not wholly or substantially based on specialist knowledge. He further contends that Mr Tran, by identifying the speaker as “Hai”, usurped the function of the jury.
In the alternative, the appellant contends that the directions given by the Judge were inadequate such that there exists a perceptible risk of a miscarriage of justice. In particular he argues that the absence of a direction regarding Mr Tran’s generalised evidence about the characteristics of the voice of “Hai” encouraged the jury to substitute Mr Tran’s opinion for its own.
Lastly, the appellant applies for permission to appeal on the ground that the verdict was unsafe or unsatisfactory because on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the voice of “Hai” was the voice of the appellant and that in combination the evidence could not establish that the appellant took part in the sale of heroin.
For the reasons that follow I would grant permission to appeal on the third ground but dismiss the appeal.
The prosecution case
a. The search of the Virginia premises
On 3 May 2007 at around 9.00 pm police officers and Australian Crime Commission (the Crime Commission) agents in attendance at Adelaide Airport had an Asian female and an Asian male under observation as the male and female sat in a Hudson’s cafe located within the airport. As the officers watched these people they saw them meet a second Asian female and a second Asian male. This meeting occurred shortly after two flights had landed, one from Sydney and one from Melbourne. The second male and female did not have any luggage, however the second male was in possession of a red backpack. The officers then watched as the four people left the terminal and got into a silver Toyota Rav4 which had been parked in the short-term carpark at the airport. That vehicle was then followed by other officers to a semi-rural property at Virginia (the Virginia premises). The Rav4 was not observed to stop en-route to that destination.
The Rav4 was later seen to leave the Virginia premises and travel to an address at Salisbury. Only one person was in the vehicle. In the driveway of the premises at Salisbury police observed a Holden sedan that was registered to Phuong Nguyen.
At about 1.25 am the following day police entered the Virginia premises armed with a search warrant. The premises had been kept under surveillance by officers the entire time since the Rav4 first arrived. During that time the only person to leave the premises was the person who drove the Rav4 to Salisbury. No-one else attended.
When the officers entered the premises they found four people present, a women, Leena Nhi Nguyet Phuong, and three men, Duong Tran, Ky Lu Phan and Quang Binh Ly.
Whilst in the kitchen with these people one officer used his mobile telephone to call a mobile number ending 486. Immediately a mobile telephone on the kitchen bench began to vibrate. One of the males, Duong Tran, reached over to pick up that phone. The officers took it from him and kept it.
The premises were searched. In one bedroom, identified by the officers as bedroom two, a plastic shopping bag was found in a wardrobe. Inside that shopping bag were five packages each containing a substance which upon analysis was found to include heroin. In total the substances in the packages weighed 304.8 grams and contained 237.1 grams of heroin.
The officers also located a backpack in bedroom number two matching that observed to be in the possession of one of the males at the airport. In the backpack officers found a driver’s licence and a boarding pass for a Virgin Blue flight from Sydney to Adelaide, departing Sydney at 16.25 pm on 3 May 2007, each in the name of Quang Binh Ly.
In a handbag in the same room officers located an invoice in the name Leena Phuong from a travel agent in New South Wales together with a second Virgin Blue boarding pass also in the name Leena Phuong.
In the course of his address counsel for the appellant said to the jury that there was no dispute that Quang Binh Ly and Leena Phuong had travelled to Adelaide from Sydney and that Duong Tran and Phuong Nguyen had gone to the airport to pick them up.
The five packages found in the wardrobe, as referred to above, were submitted to the Forensic Science Centre for analysis. Not only were they found to contain heroin in the total amount mentioned above, but swabs taken from three of the packages yielded a DNA profile matching the DNA profile of Leena Phuong. Evidence was adduced from a forensic scientist that statistically the chance of the profile having been deposited by a person who just happened to have the same DNA profile as Ms Phuong was rarer than one in one billion.
Enough has been said to indicate that the appellant was not one of the four people observed at the airport nor one of the four present in the Virginia premises when police entered. The only physical evidence connecting the appellant to the Virginia premises was some documents including an invoice made out in his name by an optometrist. Those documents and the invoice were found in a black document case on top of the wardrobe in bedroom number two.
b. The telephone intercepts and the handset with IMEI number ending 491
The jury heard evidence of a number of telephone intercept warrants obtained by the Crime Commission in relation to eight different telephone numbers in the period commencing 30 March 2007 and ending 13 June 2007.
Many of the calls intercepted pursuant to the warrants were conducted in the Vietnamese language. The Crime Commission utilised the services of interpreters to listen to those calls and to produce summaries of them. Mr Tran was one of those interpreters. He produced summaries for 1,471 calls. He flagged 204 of those calls as including a reference to a person using the name “Hai” or referred to as “Hai”.
Evidence was lead from an Optus employee that every mobile telephone produced has a unique electronic serial number known as an International Mobile Equipment Identifier or IMEI number. That same witness told the jury that when a call is made using a mobile telephone with a SIM card registered to Optus, Optus records both the IMEI number of the phone making the call and the related SIM card number. The SIM card number or telephone number travels with the SIM card. That is, the telephone number of a phone is not determined by the physical handset but by the SIM card that is inserted into the handset.
Optus records showed that IMEI number ending 491 accessed the Optus network in the period commencing 1 May 2007 and concluding 9 July 2007 using two different SIM cards, one with the mobile number ending 978 and the other ending 967. In effect two different Optus SIM cards had been used at different times in the one mobile telephone. Both of these numbers were subject of intercept warrants.
Optus records also showed that the last time that the mobile telephone with IMEI number ending 491 was used with the mobile number ending 978 was 3 May 2007, the date of the police search at the Virginia premises, and the first was sometime before 1 May 2007.
Lastly, Optus records showed that the first time the mobile telephone with IMEI number ending 491 was used with the mobile number ending 967 was 7 June 2007 and the last 16 June 2007.
The jury did not have the benefit of records showing how many times the mobile telephone with IMEI number ending 491 had been used between 1 May 2007 and 9 July 2007 utilising the two SIM cards/mobile telephone numbers referred to.
On 16 June 2007 the appellant was intercepted by police officers in New South Wales. A mobile telephone was seized from him. The IMEI number for that mobile telephone was the same as that detected by Optus using the services referred to above.[1] Police downloaded from that phone a list of saved contacts.[2]
[1]    Above at [24]-[26].
[2]    Exhibit P19.
c.      Evidence of the heroin trade
The prosecution called Detective Toan Tri Nguyen. Detective Nguyen had been a member of the South Australian Police for 22 years. He gave evidence of his experience in investigating drug crime and South-East Asian organised crime. His experience extended to the interstate trafficking of heroin and methylamphetamine by Southeast Asian organised crime groups. Detective Nguyen was also fluent in the Vietnamese language and a qualified interpreter/translator accredited with the National Authority of Interpreters in Australia.
Detective Nguyen gave evidence about the heroin trade in Australia. In particular he gave evidence of the forms, quantities, purities and prices of heroin traded in Australia. He also gave evidence that heroin is in the main imported into Australia from places including Thailand, Laos and Burma. When imported it has a purity of, generally, around 70%. It is then mixed with cutting agents of similar appearance such as glucose, lactose or paracetamol tablets increasing its saleable quantity. In May 2007 a gram of heroin sold, he said, for between $300 and $400, an 8-ball (or 3.5 grams) for between $1,200 and $1,800, and an ounce (or 28 grams) for between $7,000 and $10,000.
The detective also gave evidence that 300 grams of heroin at 70-80% purity was quite potent and would normally be cut down to a street level purity of between 18 and 34%. At street level heroin was usually sold in “tablets” or “points” being point one of a gram in quantity sold for between $50 and $100.
The detective also gave evidence of code words commonly used by people involved in the heroin trade and in particular those of Vietnamese ethnicity. Vietnamese traffickers would often refer to heroin using clothing industry terms, such as “fabric”, “material”, “jacket”, “tops”, “drum” or “garment”. Often they would also use market-gardening terms referring to heroin as “cucumbers” or “tomatoes”. “Cut fabric”, he said, will refer to heroin that has been cut as would cucumbers described as being dirty as opposed to clean cucumbers. Within groups, he said, it was not uncommon for a combination of these terms to be used. It was also common, he said, for heroin to be referred to as “slow” and methylamphetamine as “fast”.
In cross-examination Detective Nguyen gave evidence of it not being uncommon for a person involved in the drug trade to operate multiple phones, one devoted to the drug trade and another used for ordinary purposes. The phone used for the drug trade will usually contain the contact list of those involved with the trafficker in the trade in some way. He also referred to the common experience of traffickers using code names in telephone calls at some point tripping up and revealing their true identity or naming the product or in some other way dropping the usage of the code.
d. Mr Tran’s evidence
Above I have referred in passing to one aspect of the task undertaken by Mr Tran for the Crime Commission. In what follows I set out the additional task he undertook and the evidence he gave.
Mr Tran was 62 years of age at the time he gave evidence. He was born in Vietnam in a province called Kien Hoa which is in the Mekong Delta. He came to Australia in August 1978. He attended the University of Western Sydney and read for the degree of Bachelor of Arts majoring in interpreting and translating. He started work as an interpreter and translator in 1990. Since then he has continually worked in those fields.
Mr Tran told the Court that interpreting was different to translating. The former related to oral communication and the latter to the conversion of documents written in one language into a document written in another.
As an interpreter and translator his skills lay in the Vietnamese and English languages. He had regularly appeared in courtrooms as an interpreter and had also done both interpreting and translating work for the police. In the past 15 years a great deal of his work involved listening to intercepted telephone calls and translating the same for the police. Generally this involved translating audio spoken in Vietnamese into written English and passing the product onto the police.
The process involved in the work Mr Tran would undertake in relation to intercepted calls was two staged. Initially a summary of conversations is prepared. Thereafter the police choose particular calls from the summary that they wish to have translated. Mr Tran then undertakes that task.
The first work that Mr Tran undertook in relation to this case was in mid‑2007 when he was involved in the preparation of summaries of intercepted calls as I have indicated above. He undertook this task over a period of three to four weeks. Using the technology available to the authorities he would listen to each individual call once, or more than once and then prepare the relevant summary.
Subsequently Mr Tran was asked to prepare a number of transcripts from the summary he had himself prepared. He did this for about a week or so. He told the jury that in the preparation of a transcript of a telephone conversation he would need to listen to the intercepted call more than once.
In the past Mr Tran had undertaken voice comparison work for the authorities. In relation to this case he was requested to do the same by officers attached to the Crime Commission. For that purpose he attended at the Commission between 21 and 25 January 2008. He was given a name, a list of telephone calls and a folder containing the transcripts of those calls. He was then asked to listen to the calls and prepare a voice comparison statement in relation to a person known as Chien Cong Phan.
Mr Tran described the process that he would undertake in the course of preparing a voice comparison statement. He said he would listen to the recorded conversation subject of each call contained in the list of calls. He would listen to them over and over. Once he came across a conversation where a voice was identified by a name he would thereafter use that name for that voice wherever that voice was heard by him in any other call. That meant that once a person was identified in a call he would then go back and compare that voice with the voices captured in the other intercepted calls in order to determine whether any of the participants was the same person. That was the process he undertook in this case.

In this case Mr Tran was given 119 calls to listen to. In a large number of those calls a speaker was referred to as Hai. Mr Tran was of the opinion that in 108 of the 119 calls that he listened to the person referred to as Hai was one of the speakers in the intercepted conversation. Mr Tran described Hai’s voice as that of a male person of between 40 and 50 years of age. He was speaking the Vietnamese language. Hai had a southern Vietnamese accent which Mr Tran was able to localise to the Mekong Delta. He described the pitch of Hai’s voice as medium to low and the speed at which he spoke as medium to slow.
Mr Tran told the jury that in general there were three different accents in Vietnam. There was the Hanoi accent, common to the people up north, a central accent, which is a bit harsher when compared to the Hanoi accent, and a southern or Saigon accent. He added that there was a derivative of the Saigon accent detectable when one moved outside the city and into the countryside. He said that as an interpreter he had come across people from different regions of Vietnam and, within a short time of the person speaking, he could tell if they had a southern, central or northern accent. If the conversation was carried on for any longer period of time he could detect other characteristics of the voice, such as whether or not it came from the Mekong Delta.
As mentioned 62 of the 119 calls were played to the jury. At the conclusion of each of the calls Mr Tran was asked to identify which of the speakers he knew as Hai. He did so. During this exercise the jury had the benefit of transcripts that had been prepared translating the calls in the Vietnamese language into English by Mr Tran and Mr Huynh Lan Nguyen, a second qualified English/Vietnamese interpreter and translator.
Because he was involved in preparing the summaries and transcripts, and because he had listened to the calls over and over again in the course of preparing the voice comparison statement, Mr Tran was confident that he was able to recognise the voice that he attributed to the person referred to in some of the calls as Hai.
In cross-examination, Mr Tran said that he did not know the accused, Mr Phan, and had never met him. He said he assumed that the appellant was Vietnamese but could not tell whether he was from the north or south. He said that if the appellant were to speak he could tell straightaway whether he came from the south, central, or northern regions of Vietnam. He agreed that he had no formal qualifications in voice comparison. He said he was aware of spectrographic analysis but he did not use it in this case. Nor did he use any sort of computer software to compare voices. He had read nothing in the way of recent literature or scholarly articles on the topic of voice comparison. He repeated that Hai’s accent was a southern accent with a Mekong Delta influence. He accepted that the Mekong Delta was geographically close to Saigon, now Ho Chi Minh City. He then advised the jury of a number of characteristics of the Mekong Delta accent such as the pronunciation of the letters “TR” as “CH”. He accepted, however, that that was a characteristic of the northern Vietnamese accent as well. He repeated that the voice of Hai was heard by him in each of the 119 calls.
Mr Tran made plain that he could not say that the person in the recorded intercepted calls whose voice he recognised as that of Hai was the accused. He had never heard the accused speak. The limit of his evidence was to say that the same person, namely, Hai, was a speaker in each of the 119 calls that he listened to. He identified the voice of Hai by listening to the telephone calls and utilising the linguistic skills that he had in Vietnamese. He said that he was able to state that Hai was a man of 40 to 50 years in age because his voice was a mature voice but also because there is detail given in some of the calls, such as his relationship, his family, and having children of a certain age that confirmed his opinion as to the age of the speaker. He admitted that in Australia there were a great many people from southern Vietnam and from the Mekong Delta region. He disputed the proposition put that he could not tell one southern Vietnamese Mekong Delta male accent from another. In fact, he said that despite a number of the calls played to the jury featuring other male voices with the same accent, he was able nonetheless to distinguish Hai’s voice from those others.
e. The intercepted telephone calls
The prosecution tendered a recording of each of the 62 intercepted calls to which reference has already been made.[3] As mentioned Mr Tran and Mr Nguyen had translated those calls from Vietnamese into English and prepared transcripts of those calls and the jury were provided with copies of those transcripts.[4] On oath both Mr Tran and Mr Nguyen gave evidence of their expertise, told of the process they undertook in the preparation of the transcripts and vouchsafed the accuracy of the transcripts they produced. Neither Mr Tran nor Mr Nguyen were challenged in this regard.
[3] Exhibit P4.
[4] Exhibit P2.
It is unnecessary for the purposes of this appeal to go through the content of the 62 intercepted calls in any detail. Suffice it to say that the 60 calls intercepted during the period 12 April 2007 – 3 May 2007 tell a story largely of a supply of poor quality or dirty “cucumbers” to Hai that, but for the poor quality, he intended to on supply. This failed supply disrupts and delays Hai in obtaining further supply and meeting the demand of his customers. There is much frustration expressed at the delay and the inconvenience that results. Frustration is also expressed by Hai and others with the response of Hai’s suppliers and their willingness to retrieve the defective supply and reimburse him. These calls form a backdrop to those in the days immediately before 3 May 2007 in which at last a fresh supply is obtained and arrangements are made for the couriers to be picked up at the airport and transported to the Virginia premises.
With the exception of one call, all 62 calls are conducted in the Vietnamese language punctuated from time to time by words in English. The calls are notable generally for the use of code and the absence of details identifying the parties to the calls or the relationship they share. The calls are also notable as generally not being in the nature of social calls. Rather they reveal a relationship revolving around the trade in a commodity that is not identified save, for example, as “cucumbers” or “cabinets” or “flocks of chickens”. The content of the calls taken as a whole makes plain that the commodity is not, in fact, cucumbers, cabinets or chickens. Further, the content of the calls suggests that there are various people involved in the commercial undertaking with different duties.
I say nothing more about the capacity of the 62 intercepted calls to prove that Hai took part in the sale of the heroin seized by police from the Virginia premises on 3 May 2007. On the hearing of the appeal the appellant conceded that it was open to the jury to be satisfied beyond reasonable doubt that the intercepted telephone calls did prove that Hai took a step in the sale of the heroin found at the Virginia premises. It is important, however, to refer to the two calls intercepted after 3 May 2007 that were played to the jury in addition to the call intercepted on 3 May 2007 at 11:09:08. The former demonstrated that Hai was still using the mobile telephone with IMEI number ending 491 as at 13 June 2007 (i.e. 3 days, before that mobile handset is seized from the appellant). As to the latter call, I deal with the content of this call in detail below in the course of dealing with the third ground of appeal. It stands out from virtually all other calls as in it no code is used and in it Hai gives his name as Phan Chien.
f. The circumstantial evidence proving that the appellant was Hai
It was not in dispute that Hai was not one of the four people at the Virginia premises on 3 May 2007 nor one of the four people observed that same day at the airport.
The prosecution relied upon the following circumstantial evidence to establish that Hai was the appellant;
i.that his appearance in the dock was not inconsistent with that of a 40‑50 year old man of Vietnamese ethnicity;
ii.that he was on 16 June 2007 in possession of the mobile telephone handset with IMEI number ending 491;
iii.that that same handset had been used by Hai to access the Optus mobile telephone network between 1 May 2007 and 3 May 2007 using mobile telephone number ending 978;
iv.that on 3 May 2007, Hai using mobile telephone number ending 978, called mobile telephone number ending 486 three times. The mobile telephone handset with number ending 486 was found by police in the kitchen of the Virginia premises;
v.that the mobile telephone handset with IMEI number ending 491 using mobile telephone number ending 967 first accessed the Optus mobile telephone network on 7 June 2007 and last accessed that network using that same number on 16 June 2007;
vi.Hai used mobile telephone number ending 967 on 10 and 13 June 2007;
vii.that it was not unusual for Hai to change service numbers;
viii.that it was open to infer that Hai had remained in possession of the mobile handset with IMEI number ending 491 from 1 May 2007 to 13 June 2007;
ix.that Hai had given his name as Phan Chien on 3 May 2007;
x.documents were located at the Virginia premises, one of which bore the same name as the appellant’s name and others bearing what may be considered derivatives.
The defence case
The appellant did not give evidence. His defence had two limbs. First, the jury could not be satisfied beyond reasonable doubt that the appellant was Hai. Second, even if the jury found that the appellant was Hai, the evidence did not establish beyond reasonable doubt that Hai took part in the sale of the heroin located at the Virginia premises. With respect to this second limb, the appellant argued that the intercepted calls could not prove that the heroin found at the Virginia premises was the heroin spoken about in the intercepted calls, if indeed it was heroin at all that was spoken about, nor that the heroin at the Virginia premises had been transported to Adelaide by Quang Binh Ly and Leena Phuong. Further, the circumstantial evidence did not link the appellant to the heroin found such that it could be concluded, having regard to that evidence and the intercepted calls, that he had taken part in the sale of the heroin found.
The admissibility of the voice comparison evidence (ground one)
The appellant challenges the admissibility of Mr Tran’s evidence that Hai was a speaker common to all 62 calls tendered in evidence and played to the jury. He contends that Mr Tran’s evidence was in the nature of opinion evidence and that, as such, it was necessary to establish that the evidence Mr Tran gave was based upon specialist knowledge. Mr Tran, the appellant says, had no such specialist knowledge in the field of voice comparison.
Mr Tran’s evidence was admitted over objection. Relying upon this Court’s decision in R v Solomon[5] (Solomon) the Judge ruled:[6]
I am of the view that the witness Tran has, by spending the time he asserts listening to the conversations, that is the 119 conversations for consideration, has performed sufficient study of the conversations to be able to be permitted to give evidence identifying a person in the conversations as being the same person in respect of all the conversations.
In accordance with the decision of the Full Court in The Queen v Solomon I will permit the witness to give that evidence in the trial. Naturally it will be necessary to give the jury certain directions and warnings as to the use of that evidence and I will hear the parties on that topic at the appropriate time.
[5] (2005) 92 SASR 331.
[6] T110.
Before turning to consider Solomon it is to be noted that in Bulejcik v The Queen[7] (Bulejcik) the High Court was required to consider whether it was permissible for a trial Judge to invite a jury to compare the voice of the accused, recorded when he gave his unsworn statement in court, with voices on a recording made by police of out of court conversations in which the accused was, according to the police, a participant, in order that the jury might determine for itself whether the accused was in fact a participant in the out of court conversations. Bulejcik may be accepted as authority for the proposition that, subject to adequate direction and warning, a jury may compare voices recorded on recordings tendered in evidence for the purposes of determining for itself whether there is one or more speakers common to each recording. It does not settle, however, the question whether there is any special rule governing the admissibility of recordings of out of court statements or conversations admitted for, amongst other things, voice comparison purposes. Brennan CJ may be taken as concluding that there is no special rule and that the evidence is admissible if relevant to a fact in issue, subject to discretionary exclusion. McHugh and Gummow JJ may be taken as doubting but not deciding the question of whether there is a special rule, whilst Toohey and Gaudron JJ appeared to accept the existence of such rule without deciding the same.
[7] (1996) 185 CLR 375.
If it is permissible for the jury to undertake voice comparison because “[r]ecognition of a speaker by the sound of the speaker’s voice is a commonplace of human experience”,[8] it follows that evidence of voice comparison does not fall exclusively within the province of experts and expert opinion evidence.[9] That said, the expert who satisfies the qualifying criteria for the admissibility of expert evidence may give expert evidence of voice comparison.[10] It also follows that evidence of voice comparison lead from a non-expert will be inadmissible unless the non-expert enjoys an advantage over the jury.[11] It is this last proposition with which Solomon deals.
[8] Bulejcik v The Queen (1996) 185 CLR 375 at 381 (Brennan CJ).
[9] R v Leung (1999) 47 NSWLR 405 at [44] (Simpson J).
[10] The Queen v Bonython (1984) 38 SASR 45 at 46-47 (King CJ).
[11] Smith v The Queen (2001) 206 CLR 650.
In Solomon the appellant was convicted of drug offences proven in part by the tender of 120 intercepted telephone calls. As in this case, it was essential in Solomon that the prosecution establish that the appellant was one of the speakers in each of the calls. A Detective Wilkins was permitted to give evidence that, having listened at length to the recordings of the calls, including for the purpose of preparing transcripts, he could identify a particular voice in a number of conversations as being the same person. Thereafter the prosecution proved the identity of the common speaker circumstantially.
The task undertaken and the evidence given by Detective Wilkins was not materially different to that undertaken and given by Mr Tran in this case. In Solomon, as in this case,[12] the voice comparison evidence was left to the jury on the basis that it was admitted to assist the jury because of the sheer volume of intercepts, and that it was the jury’s opinion that mattered. Thus the jury was told in Solomon,[13] as in this case,[14] that it could undertake the voice comparison exercise for itself.
[12] Summing Up, R v Phan (District Court of South Australia, DCCRM-14-765, Cuthbertson DCJ, 29 March 2016) at 6, 9 and 10.
[13] (2005) 92 SASR 331 at [62] (Doyle CJ, Duggan and Sulan JJ agreeing).
[14] Summing Up, R v Phan (District Court of South Australia, DCCRM-14-765, Cuthbertson DCJ, 29 March 2016) at 9.
In Solomon, the admissibility of the Detective Wilkins’ evidence was challenged on appeal on the basis that he was not an expert in voice comparison. Doyle CJ, with whom Duggan and Sulan JJ agreed, considered the admissibility of Detective Wilkins’ evidence authoritatively determined[15] by the High Court in Butera v The Director of Public Prosecutions (Vic) (Butera).[16] In Butera, amongst other things, the High Court considered the admissibility of a transcript prepared by interpreters who had listened to a recording made using a listening device of a conversation involving the co-conspirators that was mostly in Punjabi, but partly in English, Thai and Malay. The recorded conversation was admitted in evidence as was the transcript. As to the transcript Mason CJ, Brennan and Deane JJ said:[17]
The basis on which a transcript may be provided to the jury was stated by Cooke J., speaking for the majority in Reg. v. Menzies. Noting that Phipson said that the relaxing of the rules of evidence tended “to effect economy, convenience and dispatch”, his Honour said:
The problem is how best to enable a jury to assess the contents of a tape, in the light of those aims. It is a problem sui generis and not automatically answered by settled principles.
If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.
The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. …
(footnotes omitted).
[15] R v Solomon (2005) 92 SASR 331 at [68].
[16] (1987) 164 CLR 180.
[17] Butera v The Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 187-188.
Accepting that Detective Wilkins’ evidence was left to the jury on the basis that it was an aid,[18] that it was for the jury to decide whether a particular voice in a conversation was the accused’s,[19] and that such task did not require expert evidence,[20] Doyle CJ was of the opinion that it performed a function no different to the transcripts prepared to assist the jury in Butera. He said:[21]
… Mr Henchliffe submits that the evidence of Detective Wilkins was not admissible. He makes the point that Detective Wilkins had no expertise in voice comparison. But there is no suggestion in the case law that the preparation of a transcript of a conversation in which English is spoken requires expertise. Nor is there support in the authorities for the view that comparing voices, through repeated playings of recorded conversations, requires expertise before evidence may be given that the same voice is heard on different occasions. Mr Henchliffe submits that Detective Wilkins was no better placed than was the jury to listen to the tapes and make the necessary comparisons, and so his evidence was superfluous. But the decision in Butera is based on considerations of practicality. The evidence is admitted to avoid the need for the jury to spend as much and probably more time than did the person who produces the transcript. As long as the jury used the transcripts as an aid, and not as a substitute for the decision that they had to make, there is no reason why the transcripts could not be used by the jury to avoid what would otherwise have been a substantial practical problem. Mr Henchliffe submits that Detective Wilkins had listened to recordings that were not tendered in evidence. But as long as the jury performed their task faithfully, and treated the transcript as an aid only, it does not matter that Detective Wilkins used other material to enable him to produce the transcript. That is subject to it being open to the defence to cross-examine Detective Wilkins on that other material, as it was.
[18] R v Solomon (2005) 92 SASR 331 at [75].
[19] R v Solomon (2005) 92 SASR 331 at [65].
[20] R v Solomon (2005) 92 SASR 331 at [66].
[21] R v Solomon (2005) 92 SASR 331 at [75].

Just as Doyle CJ considered Butera binding upon him, so it is upon this Court as, indeed, is Solomon.
The appellant sought to argue that Solomon was obiter, there being no ground of appeal challenging the admissibility of Detective Wilkins’ evidence. In the alternative, the appellant contended that Solomon cannot be considered an application of Butera, but was an extension of Butera. The extension he contended lay in the fact that Butera was not a voice comparison case and had nothing to say about the admissibility of voice comparison evidence such as that undertaken by Mr Tran and Detective Wilkins.
Butera may be treated as authority for the proposition that where relevant evidence is adduced in a form that renders its assessment and evaluation by a jury onerous, then, for reasons of “economy, convenience and dispatch”,[22] evidence may be adduced of an assessment or evaluation undertaken by a witness for the purposes of assisting the jury, provided that the jury is directed that the witness’ evidence is admitted as an aid and that it remains the jury’s task to assess and evaluate the evidence. That was the purpose for which the transcript in Butera was prepared, and the purpose for which it was to be deployed.
[22] R v Menzies [1982] 1 NZLR 40 at 49 (Cooke, McMullin and Somers JJ, and Sir Clifford Richmond).
In Solomon Doyle CJ applied the same principle. The voice comparison task involved a consideration of 120 intercepted calls. For the jury to undertake the task unaided of listening to each call, and probably listening to each call more than once, in order to determine whether it could identify a common voice was an onerous task. That task was made easier by Detective Wilkins who had listened to the calls and could identify in relation to each the voice that he considered was the same. The jury was not invited to substitute Detective Wilkins’ opinion for its own, merely to use his opinion to assist it in arriving at its own conclusion. Similarly a jury does not accept a transcript in substitution for the content of a recording, but merely uses it to understand the content of the recording.
So understood, Solomon is an application of the principle settled in Butera. Further that principle was applied in ruling that Detective Wilkins’ evidence of voice comparison was admissible. At paragraph 46 of his judgment the Chief Justice made plain that the admissibility of the Detective’s evidence was challenged. At paragraph 75, reproduced above, he deals with the admissibility of both the transcripts produced by the Detective and the Detective’s evidence of voice comparison. In relation to each the same principle – that derived from Butera – is applied. If there were any doubt, it evaporates upon a consideration of the succeeding paragraphs in which the Chief Justice addresses an argument advanced relying upon Smith v The Queen[23] (Smith).[24] That argument was that, just as in Smith the police officers were in no better position than the jury to determine whether it was the accused that featured in the CCTV footage, so Detective Wilkins was in no better position than the jury in Solomon to determine from listening to the tendered calls whether there was one speaker common to all. That is to say, his evidence of voice comparison was, applying the principle in Smith, irrelevant and inadmissible. The Chief Justice rejected the submission. He held:[25]
I agree that it would have been better if the judge had directed the jury, consistently with the reasons in Butera, that the transcript did not provide independent evidence of what was said or that a particular voice was the voice of the one person, but only as an aid to them in coming to their own conclusion. The judge could usefully have emphasised that they should use the transcript simply to help them understand what they heard by listening to the tapes. But the judge emphasised that the decision was a decision for the jury and the warning that he gave them about Detective Wilkins’ evidence, although slightly misdirected, must have made it plain to the jury that they were not to put their faith in his opinion.
For those reasons, I am satisfied that the evidence of Detective Wilkins was admissible, and that the judge’s directions on the topic were sufficient.
[23] (2001) 206 CLR 650.
[24] R v Solomon (2005) 92 SASR 331 at [76]-[79].
[25] R v Solomon (2005) 92 SASR 331 at [82]-[83].
In my view Solomon is decisive of the challenge advanced in this case to the admissibility of Mr Tran’s evidence. I do not think Solomon is plainly wrong and decline the appellant’s invitation to reopen it. In fact, with respect to the former Chief Justice, I think Solomon correct.
I appreciate that this case differs in one important respect to Solomon. In Solomon all intercepted calls were conducted in the English language. Here 61 of the 62 calls were conducted in the Vietnamese language. I do not think this distinction one that matters. After all it is to be recalled that in Butera the transcript prepared was of a conversation conducted in Punjabi, Thai and Malay in addition to English. Further, Butera referred with approval to the New Zealand Court of Appeal judgment in R v Menzies.[26] In Menzies Cooke J, speaking for the majority, said:[27]
If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused.
[26] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 187-188 (Mason CJ, Brennan and Deane JJ); R v Menzies [1982] 1 NZLR 40.
[27] R v Menzies [1982] 1 NZLR 40 at 49 (Cooke, McMullin and Somers JJ, and Sir Clifford Richmond).
Whilst the task undertaken by Mr Tran could not be described as a simple voice comparison exercise,[28] the principle settled in Butera and applied to voice comparison evidence in Solomon remains applicable.
[28] R v Leung (1999) 47 NSWLR 405 at [42] (Simpson J).
I note a similar approach has been taken in New South Wales and Western Australia.[29] For example in R v Leung,[30] Li v The Queen[31] and Nguyen v The Queen[32] interpreters all gave voice comparison evidence where the voices recorded spoke in languages other than English.[33] In R v Leung Simpson J, with whom Spigelman CJ and Sperling J agreed, said:[34]
Voice comparison is not necessarily a question for expert evidence, although it may be. If the two sets of tape-recordings in the present case had been in English, it would have been open to the Crown to have left it to the jury to make their own comparison and assessment of whether the voices on the DAT tapes (or any of them) corresponded to either of the voices on the police tapes. That course theoretically remained open but would have left the jury with a task immeasurably more difficult, given the reasonable assumption that no member of the jury understood either of the Chinese languages involved. The jury would, truly, have been comparing voice only, without the intrusion of language and speech patterns that are part of voice identification.
[29] R v Leung (1999) 47 NSWLR 405; Liv The Queen (2003) 139 A Crim R 281; Nguyenv The Queen (2002) 26 WAR 59; R v Korgbara (2007) 71 NSWLR 187; Irani v The Queen (2008) 188 A Crim R 125.
[30] (1999) 47 NSWLR 405.
[31] (2003) 139 A Crim R 281.
[32] (2002) 26 WAR 59.
[33] Although R v Leung (1999) 47 NSWLR 405 and Li v The Queen (2003) 139 A Crim R 281 concerned s 79 of the Evidence Act 1995 (NSW) in R v Leung Simpson J held that s 79 accommodated the common law notion of the ad hoc expert referred to in Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 and R v Menzies [1982] 1 NZLR 40.
[34] (1999) 47 NSWLR 405 at [44].
Lastly, I note that the difference of opinion between Victoria and New South Wales as to whether voice comparison evidence of the kind with which this case is concerned falls within s 78 or s 79 of the Uniform Evidence Acts.[35] That is not a debate with which this Court need be concerned. It is sufficient to note that nothing in the Victorian approach suggests the evidence is inadmissible at common law. I have, however, purposely avoided styling voice comparison evidence such as that given by Mr Tran as the evidence of an ad hoc expert. Using that expression risks confusion between expert opinion evidence and evidence of knowledge gained through the intense listening exercise undertaken. In conveying what he says he heard and purports to know he heard, at common law, opinion is admissible.[36]
[35] Kheir v The Queen (2014) 43 VR 308; Tran v The Queen [2016] VSCA 79.
[36] Lithgow City Council v Jackson (2011) 244 CLR 352 at 370-371 (French CJ, Heydon and Bell JJ).
In my view Mr Tran’s evidence of voice comparison was admissible. I would dismiss the first ground of appeal.
The Judge’s directions (ground two)
The appellant contends that the Judge’s directions regarding the use to be made by the jury of Mr Tran’s evidence were inadequate in that the Judge failed to alert the jury to the fact that Mr Tran had given only generalised evidence about the characteristics of Hai’s voice and had not referred to any unique traits or characteristics of Hai’s voice that the jury could discern in the course of conducting the voice comparison exercise for itself. Without such evidence, and without drawing the absence of such evidence to the jury’s attention, the appellant contends there arose a perceptible risk that the jury would have simply substituted Mr Tran’s assessment for its own.
In Bulejcik Toohey and Gaudron JJ said:[37]
This Court would be slow to depart from a trial judge’s assessment that material was of sufficient quality and quantity for the jury to be permitted to make the necessary comparison. The question rather is whether the jury were given sufficient warning of the difficulties involved. While they were properly alerted to differences in the acoustics, they were not told to consider: (a) the different contexts in which the taping took place, namely, at the appellant’s home, in the car and in the car park on the one hand and in the courtroom on the other; and (b) the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury were not familiar. The reference to English not being the appellant’s mother tongue was insufficient. Indeed the risk, where an accused’s first language is not English, is that a jury might conclude too readily that a foreign accent on a tape is that of the accused where the accents are similar. Furthermore, counsel should have been given an opportunity to address the jury in regard to the comparison, though it must be acknowledged that neither counsel asked for the opportunity.
Domican v The Queen was concerned with visual identification. Nevertheless, the following passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ is particularly apposite:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
(footnotes omitted).
[37] (1996) 185 CLR 375 at 397-398.
In this case the Judge gave detailed directions to the jury regarding the evidence of Mr Tran. The jury was advised that Mr Tran’s evidence was adduced as an aid, that they could conduct the voice comparison exercise for themselves, that Mr Tran was not an expert in voice comparison, and whilst they might consider him honest he could nonetheless be mistaken. The advantage Mr Tran had, the jury was reminded, was that he was a native speaker of Vietnamese.
The Judge added the weight of his judicial office to his direction, advising the jury that the experience of the courts was that voice comparison evidence may be unreliable and had been shown on occasion to be so in the past. On no less than three occasions he urged “special caution” upon the jury in assessing the reliability of Mr Tran’s evidence before they act upon it. The comparison of voices unknown was an exercise notoriously liable to be mistaken he said.
The Judge then directed the jury to carefully consider the circumstances in which Mr Tran undertook the voice comparison exercise as those circumstances may affect the reliability of his evidence. The Judge raised with the jury nine factors relevant to its consideration of the reliability of Mr Tran’s evidence (Mr Tran was a stranger to the voices whose only opportunity to familiarise himself with Hai’s voice was by listening to the recordings and not hearing the voice live; was Mr Tran attentive to the task; was the voice clear or distorted by the recording medium and/or background noise; was there anything distinctive about the voice – a lisp, an accent, or a particular pronunciation; was there any special reason to remember the voice; was the witness of the same language background (one language community may have difficulty identifying the voices of another); how long was Mr Tran required to retain the characteristics of Hai’s voice; had Mr Tran been influenced by extraneous factors).
The Judge then turned to the difficulties confronting the jury in undertaking the comparative task for itself. Here his Honour indicated that the same factors as applied in assessing the reliability of Mr Tran’s evidence applied to the jury undertaking its own comparison.
The jury was reminded of the limit of Mr Tran’s evidence – that he did not identify the voice of Hai as that of the appellant – and advised not to have regard to his evidence where it relied upon circumstantial evidence to support his opinion as opposed to the comparative exercise he described undertaking.
The Judge brought his direction to a close with clear and strong warning:
In this matter you heard 119 telephone recordings. That is a substantial amount of material. You will have the benefit of hearing the material as many times as you wish during the course of considering your verdict. I urge you to take the time to review the material as required to enable you to concentrate on both similarities and dissimilarities, although this is a particularly difficult task because the voices are in Vietnamese and, for this reason, you have the assistance of Mr Tran.
While I am required to warn you as to the dangers of acting on voice comparison I must say to you that after careful examination of the evidence of the voice comparison given by the witness, the reliability of whom you have had an ample opportunity to form a judgment and after properly considering the warning that I have given you, if you are satisfied about the correctness of the voice comparisons you are then entitled to act upon that evidence.
The Judge at the end of his summing up clarified that the jury listened to 62 telephone calls. 119 was the total number of calls that Mr Tran listened to in undertaking his analysis.
I do not think there is any risk that the jury would have understood that it was entitled simply to substitute Mr Tran’s assessment for its own. The Judge was emphatic about the need to exercise special caution in assessing Mr Tran’s evidence before relying upon it.
The fifth factor referred to by the Judge as relevant to the jury’s assessment of the reliability of Mr Tran’s evidence was as follows:
Fifthly, was there anything about the voice which would have impressed itself upon the witness? Was there anything distinctive about the voice which was similar or different? You can detect that more easily, ladies and gentlemen, because you normally listen to a voice in the English language and it is easier for you to say whether there is something different about the voice. It will be very difficult for you to do that when you are hearing a voice in a foreign language.
Was there a lisp, an accent, a particular pronunciation? It may be difficult to describe a voice unless it has some peculiar characteristic, and without the witness being able to provide some description, that makes your task of assessing the reliability of the witness even more difficult. Here, the witness describes the speaker as having a Saigon or southern accent with Mekong Delta overtones.
The two questions asked in opening this part of the direction would have caused the jury to think back to the evidence given by Mr Tran as to the particular traits of Hai’s voice, if the direction on voice comparison generally did not do so – Hai was 40-50 years of age, male and had a southern Vietnamese accent localised to the Mekong Delta; his pitch was medium to low and his speed medium to slow.
It is true that Mr Tran did not give evidence as to specific traits discernible in Hai’s voice demonstrated by reference to excerpts from the recorded calls. I do not think that would have gone unnoticed by the jury.
In Nguyen v The Queen Anderson J said:[38]
Whilst it may have strengthened Mr Colin Nguyen’s evidence if he had enumerated the means by which he was able to distinguish and thus identify the voice of “Huy”, I am not persuaded that the fact he did not do so was something which ought to have been especially brought to the jury’s attention. It is ordinary human experience that voice recognition may be unerringly accurate without the person who claims to recognise the voice being able to analyse and explain the characteristics of the voice which sets it apart. Matters of intonation, duration of vowels, rapidity of speech, cadence, accentuation, timbre, pronunciation and syntax are means by which voices may be distinguished: see R v Harris [No 3] per Ormiston J (at 317). It is not to be expected that ordinary people, although well able to recognise voices which are familiar to them, would have the capacity to go through these points of recognition in the same way that a person trained in linguistics or phonetics may be able to do. The question for the jury to consider was whether Mr Colin Nguyen had sufficient quantity of material of sufficient quality in order to become so familiar with the two voices in question that he could recognise them so that his evidence honestly given could be safely acted on. The evidence as to the quantity and quality of material – at least 300 calls involving the appellant’s mobile phone – was such that no reasonable jury could have come to any conclusion other than that this was sufficient for an ordinary person to become familiar with a voice. In my opinion, it would have been a misdirection to tell the jury that the evidence of Mr Colin Nguyen was less reliable because he did not provide an analysis of the kind referred to by counsel.
[38] (2002) 26 WAR 59 at [145].

The same may be said for this case. Here the Judge raised with the jury all issues relevant to assessing the quality and quantity of the material that Mr Tran had regard to in the course of assessing whether to rely upon his opinion. Nothing in the direction causes me to think that the jury would have understood that it was entitled simply to substitute Mr Tran’s assessment for its own; quite the contrary.
I would dismiss the second ground of appeal.
Unreasonable and cannot be supported by the evidence (ground three)
It being contended that the verdict is unreasonable and cannot be supported by the evidence, the question for this Court is whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt of the appellant’s guilt.[39] In Libke v The Queen[40] Hayne J, with whom Gleeson CJ and Heydon J agreed, said that the question for an appellate court in determining whether it was open to a jury to be satisfied of guilt beyond reasonable doubt involves consideration of whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[41] Hayne J said:[42]
… It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …
[39] The Queen v Nguyen (2010) 242 CLR 491 at [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ). See also SKA v The Queen (2011) 243 CLR 400 at 405-406 (French CJ, Gummow and Kiefel JJ).
[40] (2007) 230 CLR 559.
[41] (2007) 230 CLR 559 at 596-597.
[42] Libke v The Queen (2007) 230 CLR 559 at [113].
Here the appellant concedes that it was open to the jury to be satisfied beyond reasonable doubt that the intercepted telephone calls evidence a step in the sale of the heroin found at the Virginia premises. Further, on the assumption that the evidence given by Mr Tran is admissible, the appellant concedes that it was open to the jury to be satisfied beyond reasonable doubt that a common speaker in each of the 62 calls played was the person to whom Mr Tran referred as Hai. It follows that the appellant concedes that if Mr Tran’s evidence is admissible, it was open to the jury to be satisfied beyond reasonable doubt that Hai took part in the sale of heroin. What the appellant disputes, however, is that it was open to the jury to be satisfied beyond reasonable doubt that he was Hai.
It is to be recalled that the prosecution case relied upon circumstantial evidence to prove that Hai was in fact the appellant. In this regard in The Queen v Hillier Gummow, Hayne and Crennan JJ said:[43]
… It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. …
(footnotes omitted).
[43] (2007) 228 CLR 618 at [46]-[48].
It must also be borne in mind that a reasonable hypothesis consistent with innocence:[44]
… “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
(footnotes omitted; emphasis in original).
[44] R v Baden-Clay (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
It is not disputed that on 16 June 2007 the appellant was in possession of a mobile telephone handset the IMEI number of which ended 491.
It is also not disputed that that same handset and had been used to access the Optus mobile telephone network between 1 May 2007 and 3 May 2007 using service number ending 978. If Mr Tran’s evidence was accepted, that number was used by Hai during that period. It may be inferred then that Hai was in possession of the handset during that period.
Significantly, on 3 May 2007 Hai using service number ending 978 called the number ending 486 three times. The mobile telephone handset with service number ending 486 was found by police in the kitchen of the Virginia premises. Those three calls form one link between Hai and the Virginia premises.
Evidence was also adduced showing that the mobile telephone handset with IMEI number ending 491 using service number ending 967 first accessed the Optus mobile telephone network on 7 June and last accessed that network using that same number on 16 June 2007. If Mr Tran’s evidence was accepted, Hai used service number ending 967 on 10 and 13 June 2007. Further, and again if Mr Tran’s evidence was accepted, it was not unusual for Hai to change service numbers.[45] It was open to the jury to infer then that Hai had remained in possession of the mobile handset with IMEI number ending 491 from 1 May 2007 to 13 June 2007.
[45] See Exhibit P2 at P68 and T184; Exhibit P2 at P85 and T184-185; Exhibit P2 at P124 and T188.
The defence hypothesis was that the appellant had just by chance come into possession of the handset after 13 June 2007. The prosecution hypothesis was that there had been no change of possession. Hai was a code name used by the appellant in the course of the commission of the offence so as to conceal his true identity. The hypothesised change of possession is weakened by the recency of Hai’s use of the phone (13 June 2007) and the fact that Hai’s number as at 13 June 2007 remained active as at 16 June 2007 when the phone was seized by police.
As mentioned above, Mr Tran considered Hai to be a male in his forties or fifties who spoke Vietnamese with a southern Vietnamese accent that had a Mekong Delta influence. No evidence was lead of the appellant’s country of birth. Nor did the jury ever hear the appellant speak. The jury could see for themselves, however, that the appellant was a man in his forties or fifties and was of an ethnicity that could be Vietnamese.
As also mentioned, the last occasion that the handset was used to access the Optus network was 16 June 2007, the same day that it was seized from the appellant. The prosecution did not adduce any evidence as to whether the handset contained a SIM card upon seizure and, if it did, the service number related to that SIM card. The appellant did not ask any question of the prosecution witnesses on this topic. The evidence was however that the handset had been used that day, that is 16 June 2007, to access the Optus network using service number ending 967. To hypothesise that Hai sold the handset or that it was stolen or misplaced by him and somehow innocently came into the possession of the appellant sometime after 13 June 2007 is to engage in conjecture. There is no evidence capable of supporting such hypothesis.
In any event, when Hai accessed the Optus mobile telephone network using the handset with IMEI number ending 491 he used a SIM card with service number ending 978. On 3 May 2007 that same number telephoned a landline number ending 8589 at 11:09:08. During the course of the intercepted call that ensued Hai gave his name as Phan Chien.[46] Mr Tran gave evidence that Phan is a common surname in Vietnam and Chien a common first name.
[46] Exhibit P2 at P110.
The defence hypothesis remains one of coincidence; it is coincidental that the appellant came into possession of a mobile telephone handset previously possessed by a person who, in taking part in the sale of heroin used codenames and code, and who whilst that handset was in their possession, just happened to give the appellant’s name in an intercepted call unassociated with the drug trade, as his own.
The prosecution response is that it is to be recalled that the intercepted calls indicate that Hai is concerned to conceal the nature of the business in which he is involved and, generally, the identity of those with whom he speaks who are also involved in that business. Similarly the other participants in the calls are equally concerned not to reveal identities or the nature of the business they and Hai are involved in. That lends support to the suggestion that Hai is not the common speaker’s true name. The call of 3 May 2007 at 11:09:08 strengthens that suggestion. Here Detective Nguyen’s evidence may also be taken into account, that being, that whilst it is common for those involved in the illicit drug trade to use code and codenames, it is not unknown for them to “trip up”. Further, it is also to be recalled that the content of the call reveals that it is not one related to the drug trade. It is not the sort of call then where a code need be deployed and, in any event, would be counterproductive. That suggests the speaker’s true identity is more likely to have been revealed.
As indicated Hai is linked to the Virginia premises by the calls he made to the mobile number ending 486. He is also linked by references made in one call to the farm being in Adelaide,[47] by the discussion in another call about there being enough mattresses for all attending to sleep on[48] and the search conducted by the officers depicting a house with sparse furnishings but a number of mattresses in bedrooms,[49] by the presence at the house of Quang Binh Ly when in yet another call he announced that Binh would be travelling to Adelaide,[50] and by the presence of Duong Tran who along with Phuong Nguyen picked up Quang Binh Ly and Leena Phuong from the airport on Hai’s instructions.[51] And as mentioned the appellant concedes that, if Mr Tran’s evidence was admissible, it was open to the jury to be satisfied beyond reasonable doubt that Hai took part in the sale of the heroin found at the Virginia premises.
[47] Exhibit P2 at P94 and T185-186.
[48] Exhibit P2 at P128 and T188.
[49] Exhibit P20.
[50] Exhibit P2 at P46 and P115.
[51] Exhibit P2 at P107, P115, P118, P124, P128, P130 and P133.
The police search of the Virginia premises uncovered documents one of which bore the same name as the appellant’s name and others bearing what may be considered derivatives.[52] There was no direct evidence of the appellant ever having attended the premises. Again the defence hypothesis was coincidence. The prosecution contention was that as a matter of admeasuring probabilities, when one adds the fact of the appellant’s possession of the handset at a time proximate to when Hai last used it, to the fact that as at the date of its seizure the number was the same and it had been used, to the use of the appellant’s name in a call unrelated to the drug trade by Hai who otherwise used code and code names, a call that required identity to be disclosed, to the fact that that call was made in and amongst an ongoing series of calls related to the offence subject of the charge, to Detective Nguyen’s evidence of “trip ups”, to the finding of the documents at the Virginia premises one of which bore the same name as the appellant’s name and others derivatives, the inference is inescapable – the appellant was Hai.
[52] Exhibit P6.
In my view it was open to the jury to conclude that the coincidence contended for by the appellant was too great to amount to a reasonable possibility consistent with innocence.
I would grant permission to appeal on the third ground of appeal but dismiss that ground.
Conclusion
I would dismiss the appeal.