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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Phan [2017] SASCFC 70
Case
[2017] SASCFC 70
Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of evidence in a criminal trial. The appellant, R v Phan, was appealing a conviction. The judges hearing the appeal were Kelly, Nicholson, and Hinton JJ.
The central legal issues before the court were the admissibility of lay opinion evidence regarding voice identification, and the adequacy of warnings given to the jury concerning such evidence. Specifically, the court considered whether the evidence of Detective Nguyen regarding the practices of drug traffickers and the evidence of Mr Tran, a professional interpreter and translator, constituted admissible opinion evidence, and whether the trial judge had adequately directed the jury on how to approach this identification evidence.
The court reasoned that Detective Nguyen's evidence, based on his experience in the drug trade, was admissible as lay opinion evidence concerning common practices of drug traffickers, including the use of multiple phones and code names. Regarding Mr Tran's evidence, the court found that his extensive experience in listening to and translating intercepted telephone calls, including voice comparison work for authorities, qualified him to provide expert opinion evidence on voice identification. The court noted that Mr Tran had been provided with specific intercepted calls and transcripts and was asked to compare voices. The court concluded that the trial judge's directions to the jury regarding the identification evidence were adequate, and that the admission of this evidence did not occasion a miscarriage of justice.
The appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
KELLY J
HINTON J
I would grant permission to appeal on the third ground of appeal but dismiss that ground.Conclusion I would dismiss the appeal.