R v Solomon - [2005] SASC 265

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SOLOMON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Sulan)
20 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction - the appellant was convicted in the District Court on five counts of taking part in the sale of cocaine contrary to the Controlled Substances Act 1984 - issues on appeal - the validity of the warrants authorising the interception of telecommunications - the admissibility of a tape recording of a conversation - the Judge's directions regarding voice comparison by the jury when listening to recordings of intercepted telecommunications - the Judge's directions regarding the voice comparison evidence of a police officer regarding the intercepted telecommunications - the Judge's directions on the elements of the offence - the Judge's directions on the cross-admissibility of evidence between counts - the Judge's directions on evidence of uncharged acts - the Judge's directions on the finding of guilt on one count when considering another count - the failure by the prosecution to comply with its obligation of disclosure - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d); Telecommunications (Interception) Act 1979 (Cth) s 5D, s 46, s 49; Telecommuniations (Interception) Regulations 1987 (Cth) ; Summary Offences Act 1953 s 74D, s74E(1)(b), referred to.
R v Neiterink (1999) 76 SASR 56; Butera v Director of Public Prosecutions (1987) 164 CLR 180; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; Bulejcik v The Queen (1996) 185 CLR 375, applied.
Smith v The Queen (2001) 206 CLR 650, distinguished.
Director of Public Prosecutions (No 2 of 1995) (1995) 65 SASR 508, discussed.
Domican v The Queen (1992) 173 CLR 555; R v Harris (No 3) [1990] VR 310; R v Mouhalos (1998) 197 LSJS 483; R v Leung (1999) 47 NSWLR 405; R v Menzies [1982] 1 NZLR 40; Deng (1996) 91 A Crim R 80; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, considered.

R v SOLOMON
[2005] SASC 265
Court of Criminal Appeal: Doyle CJ, Duggan and Sulan JJ

DOYLE CJ: Mr Solomon appeals against convictions recorded by the District Court.
Mr Solomon was tried before a jury and convicted on its verdict on five counts of taking part in the sale of cocaine, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA).
He was found not guilty by direction of the Judge on one count. He was found not guilty by the jury on one count. The jury were unable to agree on another count.
Mr Solomon was also charged jointly with his brother, Andrew Solomon, and with Max Serkoshian on two counts of taking part in the sale of cannabis, contrary to the same section. All three of them were found not guilty by direction of the Judge on one count, and not guilty at the conclusion of the trial on the other count.
Mr Serkoshian was convicted on one count of taking part in the sale of cocaine. That count related to events that occurred on 5 October 2002, when Mr Solomon and Mr Serkoshian were found by the police in each other’s company and were arrested. The count against Mr Solomon arising out of this occasion was the count on which the jury was unable to agree.
The case in outline
The prosecution case against Mr Solomon was that between May 2002 and October 2002 he was regularly involved in the sale of cocaine in Adelaide to fairly regular customers. The case was that much of his selling was arranged and conducted using a mobile telephone. The prosecution relied on evidence obtained by intercepting a large number of telephone conversations in which Mr Solomon was allegedly a participant. Evidence was led to the effect that certain words used in those conversations were code words for cocaine and for dealing in cocaine. This evidence came from a detective who was experienced in the ways of the drug trade. The prosecutor argued that once those code words were properly understood, the conversation showed that the person who was said to be Mr Solomon was arranging the sale of cocaine. The prosecution relied also on evidence of the surveillance of Mr Solomon during the period in question. This evidence, some of which related to things being said in the course of telephone conversations, was capable of leading to the conclusion that on a number of occasions a particular speaker in a conversation was Mr Solomon. There were other aspects of some of the conversations which could lead to the same conclusion. In particular, a speaker in the conversations frequently referred to himself as “Matt”, and that was the name by which Mr Solomon was known.
Count 10 (on which the jury could not decide) and Count 11 (on which Mr Serkoshian was convicted) related to events on 5 October 2002. This was Mr Solomon’s birthday. In an intercepted conversation at that time Mr Solomon refers to the fact that it is his birthday. On that day police forced their way into a hotel room and found Mr Solomon and Mr Serkoshian in the room. Heroin was found in the room. The prosecution case was that Mr Solomon had arranged for Mr Serkoshian to bring cocaine from Sydney to Adelaide, so that Mr Solomon could sell it to his customers. The prosecution case was that they had met to carry out the sale, but were interrupted by the police.
In a nutshell, the case was a circumstantial one. The prosecution relied on the content of the intercepted telephone calls as indicating Mr Solomon was engaged in selling cocaine, and as indicating that on each of the occasions charged he was taking part in a particular proposed sale.
For the prosecution to succeed it was essential that the jury be satisfied that Mr Solomon was the speaker who was arranging to sell cocaine in the relevant calls. As I have said, on occasions the speaker referred to himself as Matt, and there were other pieces of evidence which might have satisfied the jury that the speaker on a number of occasions was Mr Solomon. Apart from that, for the prosecution to succeed the jury had to be able to conclude that on other occasions a particular speaker was Mr Solomon. This conclusion could have been reached by the jury being satisfied that the speaker on the relevant occasions was the same person, and then by the jury being satisfied, from the evidence referred to, that that person on one of the occasions must have been Mr Solomon. In short, the prosecutor could rely on things said and circumstantial evidence, to prove that on certain occasions a speaker was Mr Solomon. The prosecutor could then invite the jury to find that a voice heard on other occasions (when no internal or external identifier was available) was the same voice, and so was the voice of Mr Solomon. That involved a comparison of the voices recorded on the intercepts.
It was also necessary, if the prosecution were to succeed, for the jury to draw the inference that the conversations related to cocaine (and not to some other drug), that they related to the sale of cocaine (and not just to its purchase by Mr Solomon for his own use or to share with friends), and that the conversations related to a particular proposed sale on the occasion the subject of each count.
Mr Solomon did not give evidence. I will summarise his case as put to the jury. Counsel did not deny that Mr Solomon was a participant in a good number of the conversations, although with one or two exceptions (for example, conversations immediately prior to his arrest) no concession was made as to Mr Solomon being a participant in any particular conversation. Counsel accepted that the conversations indicated that Mr Solomon used illicit drugs. Counsel for Mr Solomon relied on some of the telephone intercepts to support a submission to the jury that Mr Solomon had a job with a finance company, was selling apartments and had a legitimate source of income, and lived at home with his parents. His counsel made a good deal of the point that when Mr Solomon’s house was searched no drugs were found, no large amounts of cash were found, no lists of customers were found, and none of the common indicia of dealing in drugs were found. Counsel accepted that the telephone conversations showed that Mr Solomon was involved in drugs, and was obtaining them through telephone calls. But the point was made that he used a variety of drugs.
The thrust of the submission was that the evidence for the prosecution left too much for speculation.
Counsel argued that the evidence could not satisfy the jury that, in the crucial calls relied on as evidence of participation in a particular sale, the speaker was Mr Solomon. He was critical of the evidence of Detective Wilkins who gave evidence that he had listened for many hours to the intercepts, and who claimed to identify particular voices in different conversations as the voices of the same person. The prosecutor relied in part on the detective’s evidence to identify the speaker in each relevant conversation as the one person, and then used other evidence to establish that that person was Mr Solomon. The detective was not allowed by the Judge to give evidence that the voice he heard was that of Mr Solomon. He was allowed to give evidence only that, having listened at length to the tapes, he could identify a particular voice in a series of conversations as being the same person. Counsel also argued that the jury could not be satisfied that the conversations related to cocaine. The speaker could equally well have been referring to other drugs. He made the point that Detective Wilkins never found drugs in the possession of Mr Solomon, and that despite extensive surveillance there was no evidence of Mr Solomon being in possession of drugs. I have referred already to the submission that none of the usual indicia of dealing in drugs were found. Counsel argued that some of the things said in the course of the conversations could be idle boasts. Some of them could be talk about proposals or suggestions that came to nothing. Counsel submitted that much of the intercepted material was consistent with the speaker obtaining drugs for his own use, and perhaps to share with friends. There was no direct evidence of an actual sale. The whole case was wholly circumstantial. As to Count 10, on which the jury could not agree, the evidence was consistent with Mr Solomon having met Mr Serkoshian in the hotel room to obtain cocaine to share with friends at Mr Solomon’s birthday party.
Counsel also made the point that as the prosecution had not been able to prove by direct evidence that a completed sale occurred on any occasion, it was more difficult for the jury to be satisfied that Mr Solomon took part in a sale. The jury would have to be satisfied that he intended the drug to be sold on the occasion in question, and that what he did amounted to taking part in an ongoing process of sale, and was something more than a preparatory act. Mere inquiries by potential buyers about the price or availability of a drug was a preparatory act, and not part of a process of sale. Counsel emphasised that buying drugs for personal use was not taking part in sale, nor was buying drugs to share them with friends.
The jury verdicts of not guilty on Count 3 and Count 9, and the inability of the jury to agree on Count 10, suggest that these submissions must have had some impact on the jury.
The appeal
On appeal Mr Henchliffe, counsel for Mr Solomon, relies on a number of separate grounds. It is convenient to deal with them separately.
Ground 1 - The validity of the warrants authorising the interception of communications
Mr Henchliffe submits that a pre-condition to the issue of a valid warrant was not satisfied, and that in any event the warrants in question are not valid because they do not, on their face, show that the pre-condition was satisfied. Accordingly, he submits, the evidence of intercepted conversations should not have been admitted.
The police intercepted and recorded telephone conversations in exercise of the power conferred by a warrant issued under s 46 of the Telecommunications (Interception) Act 1979 (Cth). Section 46 specifies the matters of which the issuer of the warrant must be satisfied, and the matters to which the issuer “shall have regard” in deciding whether to issue a warrant. The issuer must be satisfied, “on the basis of the information given” to the issuer, that information that is likely to be obtained:
… would be likely to assist in connection with the investigation … of a class 2 offence …:” s 46(1)(d).
Section 5D sets out the offences that are class 2 offences. Relevantly, s 5D(2)(b)(iv) provides:
(2)An offence is a class 2 offence if: …
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
…
(iv) trafficking in prescribed substances.
There is no dispute that cocaine is a prescribed substance. Mr Henchliffe submits that the Controlled Substances Act does not in terms create an offence of trafficking in drugs and that taking part in the sale of cocaine is not necessarily “trafficking”, and so the issuer of the warrant could not have been satisfied as required by s 46(1)(d). He also submits that the warrant referred to offences involving sale or supply, and that supply (at least) does not involve trafficking.
The first difficulty that this submission faces is that the material put before the issuer of the warrant has not been tendered. The validity of the warrant turns on the capacity of the information given to the issuer to support a finding of satisfaction in terms of s 46(1)(d). The issue is whether, on the information given to the issuer, it was open to the issuer to be satisfied that the offences in question were class 2 offences. The attack on the issue of the warrant lacks the required evidentiary foundation.
This first point lacks substance in any event. It is not necessary for the offence in question to be an offence the statement of which includes the word “trafficking”. It is sufficient that the offence in question amounts to trafficking.
If, as a matter of law, an offence against s 32(1)(d) of the Controlled Substances Act could not amount to “trafficking”, Mr Henchliffe’s submission might yet be made good. But the repeated sale or supply of a drug can amount to trafficking in its ordinary meaning: see Deng (1996) 91 A Crim R 80 at 99. A single sale or supply might be part of a course of conduct that is trafficking. It is not necessary to decide whether an isolated sale or supply could amount to trafficking. An allegation of repeated offences against s 32(1)(d) is capable of amounting to an allegation of trafficking. To the extent that it is relevant to look to the prosecution case at trial, it is a case that alleges trafficking.
For those reasons his second and third points fail also.
Accordingly, the submission that a pre-condition for the issue of a warrant was not made out, or could not have been made out as a matter of law, must fail.
The form and content of the warrant is governed by s 49 of the Telecommunications (Interception) Act 1979 (Cth). Section 49(1) requires that a warrant be “in accordance with the prescribed form …”. Section 49(7) provides as follows:
49Form and content of warrant
….
(7) A warrant shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:
(a)in the case of a warrant issued under section 48—paragraph 45(d) or 46(1)(d), as the case requires; or
(b)otherwise—paragraph 45(d), 45A(d), 46(1)(d) or 46A(1)(d), as the case requires.
The prescribed form (see Form 3 in the Telecommunications (Interception) Regulations 1987) has a paragraph that reflects the terms of s 46(1)(d), and calls for the addition to the specified form of “short particulars of the class 2* offence/*offences”. The asterisk indicates that inapplicable words may be omitted. The warrant that was issued follows the prescribed form and refers to information about offences:
… pursuant to s 32(1) of the Controlled Substances Act 1984, being offences where the conduct constituting the said offences involved, involves or would involve taking part in the sale or supply of prohibited substances and drugs of dependence.
Presumably the warrant referred to offences against s 32(1), and was not limited to subparagraph (d), because at the stage when the warrant was issued the applicant could not confidently identify the particular subparagraph or subparagraphs under which charges would be laid. I add that offences contrary to s 32(1) are offences capable of amounting to trafficking because they are offences that involve manufacture, production, sale, supply and administration of drugs.
The warrant satisfies the statutory requirement that it “set out short particulars of each serious offence” in relation to which the issuer was satisfied. There is no reason to read the statutory provision as requiring that the warrant summarise or particularise the facts on the basis of which a class 2 offence is said to be involved. The warrant is sought with a view to collecting information that will disclose the commission of an offence, and this will often be an offence yet to be committed. Factual particulars of an offence yet to be committed could not be provided. Of course, the applicant for the warrant can be expected to provide information supporting a conclusion that a class 2 offence will be or may be committed, but there is no reason to think that Parliament would have expected the issuer of the warrant to specify in the warrant the circumstances of a yet to be committed offence. It is sufficient if the warrant identifies the offence by name or by reference to a statutory provision, as long as the issuer is satisfied that having regard to its nature, or having regard to the circumstances in which it will be committed, the offence is a class 2 offence.
That, in effect, is what the Full Court of the Federal Court of Australia decided in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 197, where the Court said that:
… what is required by s 49(7) is a statement of particulars which identifies the alleged or suspected offences in a conceptual sense, in contrast to particulars of the essential factual ingredients of those offences in the particular case, such as those which an accused is entitled to have to enable him to prepare his defence …
I respectfully agree.
There is no requirement that the warrant disclose on its face or set out the facts relied on by the issuer of the warrant to support a finding that the warrant relates to a class 2 offence. They would be facts that satisfied the issuer that the suspected or anticipated offences against s 32(1)(d) were likely to be committed in circumstances that amounted to trafficking. As I have already said, there is no evidentiary basis to attack the issuer’s satisfaction on that point. All that the Act requires is that “short particulars” of the relevant offence be given.
There was no basis for excluding the evidence obtained pursuant to the warrants on the grounds that the warrants were invalid. Mr Henchliffe’s submission should be rejected.
Ground 3 and Ground 4 – The admission of a tape recording of a conversation
Mr Henchliffe submits that the Judge erred in exercising his discretion under s 74E(1)(b) of the Summary Offences Act 1953 (SA) to admit evidence of a tape recorded conversation with Mr Solomon. It was reasonably practicable to record the conversation on video tape, but that was not done.

Later the Judge decided that the tape recording was not to be used by the jury for the purpose of identifying the voice of Mr Solomon on recordings of intercepted conversations, by comparing the voice on the tape recording with voices in the intercepted conversation. Mr Henchliffe submits that a miscarriage of justice occurred when the Judge allowed the tape recording to remain with the exhibits to which the jury had access, despite his direction to the jury not to use it to identify Mr Solomon’s voice. Mr Henchliffe submits that the jury had access to a tape recording which should not have been admitted in evidence and which the Judge himself had decided should not be used for the purpose of voice identification.
The relevant facts are these. On 5 October 2002, as already mentioned by me, police went to a room in a hotel in Adelaide. They expected to find Mr Solomon and Mr Serkoshian in the room. They expected to find them engaged in the sale of cocaine. The police entered the room and found the two men there, with a woman. The police had their revolvers drawn. They told the three people to get down on the floor. Detective Connor searched Mr Solomon, and then told him to sit on a chair. Detective Connor saw items likely to contain drugs such as heroin or cocaine. Detective Connor then told Mr Solomon his name, and asked Mr Solomon his name, and Mr Solomon identified himself. This conversation, which I will call the first conversation, was not recorded. Detective Connor remained with Mr Solomon while other detectives dealt with the other two people who had been in the room. Detective Connor then told Mr Solomon that he would speak to him “on tape” in the bedroom to which Mr Solomon made a brief response. The conversation was not recorded. I will refer to this as the second conversation.
Detective Connor and Mr Solomon then went into the bedroom, where Detective Connor spoke with Mr Solomon for about four minutes. The conversation was recorded on a tape recorder. I will refer to it as the third conversation. He obtained personal details from Mr Solomon, told him he was under arrest for possession of cocaine for the purposes of sale and supply, and informed him of his rights. On several occasions Mr Solomon said that he did not understand what was going on, and made the point that he had no cocaine in his possession.
The Judge appears to have considered that each conversation was an interview, or part of an interview for the purposes of s 74D of the Summary Offences Act, and that it was reasonably practicable to record each conversation on video tape as required by s 74D(1). In other words, the Judge seems to have formed the view that Detective Connor had not complied with the requirements of s 74D, and accordingly each conversation or interview was inadmissible unless, as provided by s 74E(1)(b), the Judge was satisfied that “the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance”.
The Judge decided not to admit the evidence of the first or second conversation, but said that in the exercise of his discretion he would admit the evidence of the third conversation. Although the ruling is recorded, no explanation for the decision is given.
The Judge should have given an explanation, although it could have been quite brief. The Court should not have to speculate on a point like this. I think it likely that the Judge drew the distinction that he drew on the basis that only the third conversation was recorded on audio tape. It also appears that the Judge had in mind that the sole or main use of the evidence of the third conversation would be as an aid to the identification of Mr Solomon’s voice in the intercepted conversations, because when the Judge gave his ruling he said that it was subject to such argument as he would later hear in relation to voice identification.
I doubt whether the first conversation and the second conversation amounted to an interview for the purposes of s 74D. Neither of them was an interview in the ordinary sense of the word. Nor is there any link between the first two conversations and the third, by which I mean that the purpose and content of the first two interviews differed from the purpose and content of the third interview. Be that as it may, it was open to the Judge to exercise his discretion in relation to the third conversation, or in relation to the third part of the series of conversations, if they constituted a series. I do not accept that when there is a series of conversations, the discretion to admit despite non-compliance with s 74D(1) can be exercised only in relation to the series as a whole.
Was the exercise of the discretion erroneous? There was no challenge to the accuracy of the audio tape of the conversation. There appears to be no unfairness to Mr Solomon in allowing the audio tape to be admitted. The failure to comply with s 74D(1) was not deliberate, although it does appear that at the relevant time the police were not fully alive to their obligations under s 74D, even though the provision had been in force for about six years at the time of the relevant events. But it is relevant to bear in mind that the main purpose of the provision is to avoid arguments about evidence of questioning of a person by police. The use of the tape recording for the purposes of voice comparison is in no way counter to the policy that underlies s 74D. For all those reasons I am not persuaded that the Judge erred in exercising his discretion as he did.
But events took a further turn. As I have already mentioned, the Judge allowed Detective Wilkins to give evidence that a particular voice on recordings of intercepted conversations was, in different conversations, the voice of the same person. He allowed this form of voice comparison to be made in relation to a number of persons whose voices were heard on the recordings of intercepted conversations. He did not allow Detective Wilkins to give evidence identifying one of the voices as the voice of Mr Solomon. So the tape recording of the third conversation had some potential significance as a means of identifying the voice of Mr Solomon by way of comparison.
In her address to the jury the prosecutor told the jury that they could use the recording of the third conversation as an aid to identifying the voice of Mr Solomon. It could be put “into the mix” with other means of identifying his voice. The tape recording had been played to the jury during the trial.
At the conclusion of the address by counsel for Mr Solomon, the Judge indicated to counsel that he had doubts whether he should allow the recording of the third conversation to be used. Counsel for Mr Solomon had made only passing reference to it, in relation to whether Mr Solomon was intoxicated when he was arrested. The Judge remarked that it contained insufficient material to make it a reliable point of comparison. The prosecutor indicated that she relied on the recording of the third conversation solely for the purposes of voice identification. The Judge expressed the same doubt at the conclusion of the address by counsel for Mr Serkoshian. There was no application by either counsel to add to his address.
In summing up to the jury the Judge directed the jury not to use the recording of the third conversation to identify a voice in the intercepted conversations as that of Mr Solomon. The Judge said there was not enough material for the third conversation to be used in that way. Counsel then submitted that the tape recording should not be left with the jury, because it would be of no use to them. The Judge then suggested, apparently for the first time, that he might leave the tape recording with the jury because it showed that Mr Solomon had declined to answer any questions. The prosecutor added that it could be used by the jury on the question of whether Mr Solomon was affected by alcohol at the time, and that the jury could make use of the statement made by Mr Solomon in the third interview that it was his birthday that day. The Judge allowed the recording of the third conversation to remain with the jury. After these submissions the Judge reminded the jury that they were not to use the recording for the purpose of voice identification, and said that it would be “dangerous” to do so.
This is an unsatisfactory aspect of the trial. There is the failure by the Judge to state his reasons for excluding the evidence of the first two conversations and admitting the evidence of the third conversation. I agree with the Judge’s final view, that the third conversation was not an appropriate means of identifying Mr Solomon’s voice. It contained insufficient material, and on the occasion in question Mr Solomon was probably speaking in a somewhat agitated fashion. But the Judge’s change of approach, after the addresses by counsel, caused its own problems. I agree that the Judge should have withdrawn the exhibit from the jury.
However, although the Judge erred, I am satisfied that the error could not have given rise to a miscarriage of justice. The Judge gave the jury a clear and firm direction, on two occasions, not to use the tape recording to identify Mr Solomon’s voice. He was entitled to proceed on the basis that the jury would obey that direction. There is a risk that the jury’s approach had already been affected by the fact that they had already heard the tape. But the risk is hypothetical rather than real. As my summary of the case indicates, it proceeded on the basis that there was no real doubt that in a number of intercepted conversations, Mr Solomon was a speaker. Those conversations provided a basis for comparison with conversations in which it remained an issue whether Mr Solomon was a speaker. There was material for the jury, in the intercepted conversations, to provide a basis for comparison with voices and for the identification of Mr Solomon as a speaker. I am satisfied that the jury’s approach to this question would not have been influenced by the fact that they had already heard the recording of the third conversation, and had been told that they could use it to identify the voice of Mr Solomon.
For those reasons I do not accept the submissions made in support of Ground 3 and Ground 4.
Ground 9.1 and Ground 6 – The adequacy of the Judge’s directions to the jury about comparing voices recorded in the intercepted conversations. The adequacy of the Judge’s direction to the jury about Detective Wilkins’ evidence of voice comparison
Mr Henchliffe submits that the Judge failed to instruct the jury adequately that they had to make their own comparison of the voices recorded in the intercepted conversations; that the Judge failed to direct the jury adequately on matters that might make the process of comparison difficult; that the Judge failed to direct the jury’s attention adequately to the need for care in conducting the voice comparison, and that the Judge failed adequately to warn the jury about the dangers of the process of comparing voices. He submits further that the Judge should not have allowed Detective Wilkins to give evidence that, having listened at length to the recordings of intercepted conversations, he had identified certain voices as the voice of the same person in different conversations.
Recordings of about 120 intercepted conversations were admitted into evidence. There were many other intercepted conversations that were recorded. It was essential for the prosecution case that the jury find that Mr Solomon was a speaker in the conversations that were admitted into evidence, and that Mr Solomon said things that indicated (once the code used was understood) that he was arranging to sell cocaine on the occasions, the subject of each count.
That meant that the jury had to decide which of the recorded voices was that of Mr Solomon, what he said, and what it meant.
The prosecutor invited the jury to do this by two means. First, by the use of circumstantial evidence. I have already touched on this aspect of the matter. The main aspects of the circumstantial evidence on which the prosecution relied were the fact that the mobile telephone number used was registered in the name of Mr Solomon, the identity of the person who was responsible for the cost of the phone, the fact that on numerous occasions the speaker identified himself as “Matt”, the fact that certain other regular callers to “Matt” were heard, and the prosecution relied also on the admittedly limited surveillance evidence which tended to identify Mr Solomon as the speaker on some particular occasions. Taken as a whole this circumstantial evidence was significant. Second, the prosecutor invited the jury to compare the voices in the recordings and by that process of comparison to identify Mr Solomon as a speaker in conversations which had no internal or external identifiers. The jury were invited to compare the voice in those conversations with other conversations as to which they were satisfied the speaker was Mr Solomon.
There was no suggestion that the jury could directly identify a recorded voice as that of Mr Solomon, by comparing the recorded voice with a known sample or recorded sample of Mr Solomon’s voice. Mr Solomon did not give evidence before the jury, and so they would not have heard his voice, other than when he pleaded to the charge.
The case is therefore one that involves voice comparison, that is, comparing a number of voice recordings with a view to deciding whether the same voice or voices are heard. As well, the case involved the identification of a voice or voices as that of Mr Solomon based on the use of circumstantial evidence in the form of what I have called internal and external identifiers.
It follows that cases dealing with voice identification or recognition are of no direct relevance to this case. However, the cautionary note sounded in some of those cases has some bearing on the present case.
In Bulejcik v The Queen (1996) 185 CLR 375 Toohey and Gaudron JJ had reason to consider evidence as to voice comparison. In the course of their reasons they distinguished between voice identification and voice comparison, and made certain comments about the circumstances in which evidence of voice comparison is considered. They said at 394–395:
Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused’s speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused’s voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness’s memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness.
Where two voices are being heard side-by-side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made. By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery. It is in this sense that counsel for the respondent stressed that, notwithstanding that the aim is still to identify the voice on the tape, the exercise is one of voice comparison rather than identification from memory.
As to the quality and quantity of the material being compared, clearly the greater the amount of material, the greater the similarity in the circumstances in which the voices were spoken or recorded and the greater the number of similar words used, the more useful the comparison. A jury would also benefit from hearing the material more than once so as to enable them to concentrate on both similarities and dissimilarities. Counsel for each side should have the opportunity to point out or emphasise particular similarities or dissimilarities to the jury. The defence may wish to call expert evidence where the jury may have difficulty in drawing a distinction between two voices of a particular nationality or dialect.
Their Honours then referred to the facts of the case before them. The issue there was whether the jury could compare a tape recording, made by an undercover policeman, of a conversation said to involve the accused, with a tape recording of the accused’s unsworn statement made at the trial. The particular circumstances of the case do not call for any comment here. Their Honours then considered the matters to which the Judge should have called the jury’s attention, which of course depended on the circumstances of that particular case. They referred to the decision of Domican v The Queen (1992) 173 CLR 555, which dealt with visual identification, and to the well known observations made by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 561-562 about the matters of which a judge should warn a jury in a case involving visual identification. These observations were said to be “apposite”. There are three propositions that emerge from that passage. The first is that because of particular dangers of identification evidence, there is a need for a cogent warning tailored to the circumstances of the case. The second is that the warning should be given with the authority of the judge, and not merely as a reference to arguments by counsel. The third is that the judge should isolate and identify for the jury any particular matters that might undermine the reliability of the evidence.
Their Honours Toohey and Gaudron JJ then said at 398-399:
Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for. It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert. It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison. This was not done in the present case. (Footnote omitted)
Their Honours concluded that instruction given to the jury was not sufficient.
The other two members of the majority, McHugh and Gummow JJ, did not find it necessary to make any comment on the correct approach to a case like the present case.
Brennan CJ dissented. He proceeded on the basis that the jury was entitled to compare the voice recorded on the tape, tendered through the undercover detective, with the voice that they heard when the accused made his unsworn statement. They could do so “subject to a satisfactory warning”: at 383. He considered the warning that the Judge gave to be sufficient. That warning focussed on the fact that the jury were comparing a voice on a tape with a voice heard directly when the accused made his statement in court, and on the different circumstances in which the recording was made and the unsworn statement was made. He said at 384:
Other judges may have framed the warning in different terms but the sufficiency of a warning is not assessed by reference to a formula nor by postulating a hypothetical warning against risks of which a reasonable jury would be as well aware as the trial judge. The terms of a warning must be determined by the trial judge by reference to the live issues at the trial, not by reference to abstract possibilities that might later be contemplated for submission to a court of appeal. A jury should be reminded to be cautious before acting upon evidence of voice identification. Such a warning was given by the learned trial judge in this case.

I proceed on the basis that Bulejcik is authority for the proposition that the jury can compare recordings of voices to decide for themselves whether or not the voice on one recording is the same as the voice on another recording, with a view to coming to the conclusion, if the accused is adequately identified as the speaker in one recording, that the accused is also the speaker in the other recordings. However, the jury must be given a warning or guidance, tailored to the actual circumstances of the case, that will bring home to them any particular matters that might undermine the reliability of a conclusion based on the comparison that they are asked to make, and any particular factors that fall for consideration in the case before them.
Before coming to the Judge’s directions, I refer to the following aspects of the case. The jury had before them 120 conversations, most of them relatively brief, that were said to involve the voice of Mr Solomon. They had plenty of material to consider. English was the first language of all speakers. Each conversation was spoken in similar circumstances. Or, perhaps more accurately, there was nothing out of the ordinary about any of the occasions on which the speakers were speaking. The subject matter of the conversations was similar. As all conversations were by means of a mobile telephone, the recording was made of voices being transmitted by similar technology. The jury had the opportunity to listen to the conversations for as long as they wished. Counsel had the opportunity to address on the process of comparison. On my understanding of the case, there were no dangers of the jury making a mistake of a kind that might have been concealed from them, either having regard to particular circumstances of a given conversation or more generally. In other words, having regard to the circumstances of this case, there are no particular matters that occur to me as matters to be brought to the attention of the jury, other than the need for care and attention, and the jury hardly needed to be told that.
The potential use of the circumstantial evidence is significant. It is important to bear in mind that counsel addressed, as my earlier outline of the case indicates, on the basis that the voice heard in a good number of the conversations was the voice of Mr Solomon. This no doubt reflected the fact that there were a number of internal and external identifiers on which the jury could rely. In many cases the jury could proceed on the basis that the speaker was the accused. What remained for them was to decide whether on other occasions, when there was no internal or external identifier, the speaker was the accused. The comparison of voices was not, as I understand the case, decisive in the process of identifying Mr Solomon as the speaker. It was a part of that process.
I now turn to the Judge’s directions.
Relatively early in the summing up the Judge said:
There is evidence which the prosecution points to to prove the identity of the voices speaking on the phone and on that topic the prosecution points to certain things, namely the actual phone and the phone number itself and who was the owner, it refers to the contents of the calls and what names are referred to in the calls, and also it refers to the opinion of Detective Wilkins that there is a consistency of identity of a number of voices, especially the voice referred to as “Matt” or “Matthew”. I point out, as counsel have, that that evidence is not evidence from Mr Wilkins that it is Matthew Solomon but it is evidence that the person Matt is the same person and the Crown ask you to infer from other evidence, namely the phone itself and certain things that were said, that that must be Matthew Solomon.
The Judge then referred to the evidence from Detective Dewar, explaining the terms used which were said to be code for drugs and dealing in drugs. The Judge referred to the surveillance evidence. The Judge then explained that the case was largely circumstantial, and went on to give a thorough direction about the nature and use of circumstantial evidence. The jury could not have been in any doubt that they were being asked to decide whether Mr Solomon was the speaker in the relevant conversations, what he said, what it meant and whether it led to a conclusion that he was engaged in the sale of cocaine.
The Judge then said:
Let me deal first with Mr Wilkins. Mr Wilkins gave evidence that, having listened to many thousands of tapes, he is of the opinion there is a consistency in the voices of the person Matthew or Matt, and it is the same Matt throughout the intercepts, and the person Andrew is the same Andrew. The prosecution ask you to find that to be so and, indeed, go further and ask you to find the accused Matthew and Andrew Solomon are the voices you hear when there is reference to “Matt” and “Andrew”, but they do that not by voice comparisons but by other circumstances which I will not deal with now. However, Mr Wilkins’ evidence is confined to the consistency of voices. He does not actually relate it to the accused.
I direct you that you must be careful in your assessment of that evidence because, of course, Mr Wilkins is not what I might call an objective expert in this area; he has no particular training in the area of voice comparisons and he is, of course, involved in this matter on the prosecution side. His evidence is before you because it would be of assistance because of the sheer volume of material that he has heard. Therefore, you must treat that part of his evidence with great caution because you, of course, are the deciders of the facts and it is your view which is important. Also, you have heard a comparison of the voices on the telephone intercepts and the voices of the accused when arrested on those CDs, DVDs, videos when arrested.
Ladies and gentlemen, you are asked to compare those yourself and come to your own conclusions. Let me tell you that having heard that evidence that you should not do that, you should not compare them and you should look elsewhere for evidence of the fact that it is the voices of the accused. Because of the paucity of material, there is really just not enough material, you might think, in relation to the voices when they were arrested – they speak for a very short period of time – compared with the voices that you hear on the tapes on the telephone intercepts.
As can be seen, the Judge did not say much about the process of comparison to be undertaken by the jury. That is probably because of the significance of the circumstantial evidence in the process of voice identification. Counsel later asked the Judge to direct the jury more fully, and later the Judge returned to the topic. He said:
When I directed you about the evidence of the consistency of voices, remember Detective Wilkins’ evidence about how he gave evidence that is the voices were consistent and I referred to Matt and Andrew, I remind you of course, as I did not mention but I should have mentioned, that is there are also the voices of Max, Mary and Charlie; he also gave evidence about the consistency of those voices and you will bear in mind that is evidence. And, it is quite permissible for you yourself, on those telephone intercepts, to go through the exercise of comparing voices, as Mr Wilkins has. You will be hearing telephone intercepts, you will have them and you, if you wish, can go through that is exercise and compare voices. That is distinct from comparing voices between the telephone intercepts and the tape-recordings. I have told you not to do that is because there is so little to compare it with and it would be dangerous.
…
Of course, in relation to voice comparisons, I do not think I need to say this: that is if it is not proved beyond reasonable doubt that is a voice is not the voice of one of the accused that is tape cannot be used against the accused. It has to be proved beyond reasonable doubt that is you are happy and you are satisfied that is it is the accused’s voice before you can use what are the contents of that is tape against the accused.
Earlier the Judge had gone through the evidence relating to each count before the jury. In relation to each count he referred to the intercepted conversations that were relevant to the count. In each case he referred to circumstantial evidence that was significant in deciding whether the speaker was Mr Solomon. He referred, as appropriate, to whether the mobile telephone service in use was registered in the name of Mr Solomon, who was responsible for paying for the service, the use of the name “Matt” by the speaker, and he continually reminded the jury that they must be satisfied that in the relevant conversations the speaker was Mr Solomon.
In all the circumstances of this case I consider that the directions were adequate. There was no dispute that in many of the intercepted conversations Mr Solomon was the speaker. There was no dispute that on many occasions he was talking about obtaining drugs. While there were conversations as to which the jury had to decide whether Mr Solomon was a speaker, and if so what he said, the jury had a substantial amount of material to consider. There were no concealed dangers or difficulties in the process that, to my mind, needed to be brought to the attention of the jury. There were no particular considerations that would make a comparison difficult. There was the obvious difficulty of making a comparison by listening, but the jury could not have been unaware of that. It would have been better if the Judge had given the jury a specific warning about the need to take care but I do not accept that the jury would have been unaware of that. In the circumstances of this case I consider that the jury was given all the guidance that they required. The Judge was best placed to assess the amount of guidance required by the jury, having regard to all of the circumstances of the case. I am not persuaded that the Judge erred.
That leaves the question of whether the Judge erred in allowing the jury to use the evidence given by Detective Wilkins to assist them. The Judge’s directions on that topic are set out above, including the warning that the Judge gave the jury about the need for care in assessing the evidence of Detective Wilkins.
It was for the jury to decide whether a particular voice in a particular conversation was that of Mr Solomon. In so deciding the jury were entitled to consider and decide whether a particular voice in one conversation was the voice of the same person as was heard in another conversation.
The decision that the jury had to make did not require expert evidence to assist the jury. It is a decision that the jury was entitled to make unaided, provided sufficient suitable material was available for the jury to consider: R v Harris (No.3) [1990] VR 310 at 318, Ormiston J; R v Mouhalos (1998) 197 LSJS 483 at 489, Doyle CJ; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405 at [37] – [44] Simpson J.
Detective Wilkins was not put forward as an expert in voice comparison. He did what the jury was invited to do. He listened to the recordings of the intercepted telephone conversations. However, what is significant is that he had listened to them for many hours, had listened to other material as well, and had produced what he said was a transcript of what was said in the intercepted conversations, in which transcript he had identified certain voices as recurring voices.
The issues raised by this evidence were considered by the High Court in Butera v Director of Public Prosecutions (1987) 164 CLR 180, and in my opinion are authoritatively determined by that decision.
Butera involved a tape recording of alleged conspirators, who were speaking partly in English but mostly in a foreign language. The tape recording had been made by recording conversations using a listening device. The High Court had to consider the admissibility and permissible use of oral evidence, given by interpreters, of their translations of the conversations. The interpreters produced written translations which were admitted into evidence. Much of what is said by their Honours applies to a written record of an intercepted or overheard conversation, whether the conversation is in English or in another language.
Butera establishes that the tape recordings of intercepted conversations contain the evidence to be considered by the jury. The evidence to be considered is the sound recorded on the tapes. The tapes are merely a means of reproducing that sound. That evidence is put before the jury by playing the tapes, assuming it is established that they are tape recordings of the conversations in question. As Mason CJ, Brennan and Deane JJ said at 185:
Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court.
They made the same point at 186.
However, as they recognised there are situations in which a court will receive a transcript containing what a witness says the witness heard when the witness listened to the tape recordings out of court. The reasons for doing so are reasons of practicality. As their Honours acknowledged at 187, the tape recording might be indistinct, and might need to be played over repeatedly before the listener’s ear becomes attuned to the words. In such a situation a transcript might be provided to the jury as an aid, but only as an aid. As their Honours said at 188:
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.
Their honours approved of observations by Cooke J in R v Menzies [1982] 1 NZLR 40 at 49, where his Honour gave examples of situations in which a transcript of a tape recorded conversation might be admitted, one of those situations being one in which “the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury”.
The observations by their Honours are authority for the proposition that a transcript, prepared by a witness out of court, is admissible but only as an aid to the jury. Ordinarily such a transcript is not admissible on the basis that it is expert evidence, or the product of expertise. It remains for the jury to make a decision about what is recorded, on the basis of what the jury hear on the tapes.
In a separate judgment Dawson J expressed the same view. He said at 195:
Even when an original tape is produced and its contents are audible, intelligible and in English, it may be desirable to adduce secondary evidence of its contents as a matter of convenience. Instances of when this will occur are when the playing of the tape takes a long time or the conversation recorded can be understood only with difficulty. The production of a transcript in these circumstances provides a ready form of reference to the contents of the tape and avoids unnecessary playing and replaying of the tape. To admit secondary evidence in the form of a transcript in these circumstances is no more than an application of the well-established principle that when evidence is voluminous or complex, then abstracts, schedules or charts, proved by a suitably qualified person, may be admitted in evidence as an aid to comprehension …
Gaudron J seemed to take a more restrictive approach. At 207 she said that if the tape recording was audible and intelligible, “extraneous evidence” as to the contents of the tape recording was inadmissible. But at 211, apparently qualifying this statement she said:
Considerations of convenience could also lead to the making available of a transcript of lengthy tapes, even though audible and intelligible.
That decision binds this Court. The tapes in question were lengthy. It would have taken many hours for the jury to listen to the tapes until they had a good grasp of what was being said. To make a comparison of the voices they would also have had to make fairly detailed notes during repeated playings of the tapes. There was every reason to provide them with a transcript of the conversations. It was permissible to do so.
Despite this, 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 Mr 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.
Mr Henchliffe relied on the decision of the High Court in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. That was a case in which the accused was charged with robbery in company. There was no doubt that a robbery had taken place. The prosecution case was that the appellant was the person who was shown in photographs taken by a security camera. An issue at the trial was, therefore, whether the appellant was the person depicted in those photographs. Two police officers were permitted to give evidence. Each of them had had some limited previous dealings with the appellant. Each said that he recognised the appellant as the person shown in the photographs. The Court held that that evidence was wrongly admitted.
As Gleeson CJ, Gaudron, Gummow and Hayne JJ said, the central, and really the only issue, was whether the appellant was depicted in the security photographs. The issue for the jury was whether the person then standing before them at the trial was the person shown in the photographs:
The two police officers were in no better position to compare the appellant with the photographs, than were the jurors. There was no suggestion of any change in the appellant’s appearance. The jury had spent as many hours in the presence of the appellant (during the trial) as had the police officers. As their Honours said at [9], the issue raised was a very narrow issue, and “the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion.” Their Honours’ reason for holding the evidence of the police officers inadmissible appears at [11]:
Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury …
It followed that the evidence of the police was irrelevant.

Smith is distinguishable. The evidence of the police was not tendered as an aid to the jury, with a view to doing no more than saving the jury some time and trouble in making their own decision. The only basis for the admission of the evidence of the police was to establish their opinion as to the identity of the person in the photograph. Their opinion was of no relevance. It could only be relevant if the jury permitted their opinion to be substituted for the jury’s own conclusion. In the case now before the Court, the transcript of the conversation is tendered on a different basis. It is a tendered as a mere aid for the assistance of the jury. It is a record by reference to which the jury could listen to the tapes, with a view to making their own decision about what is said and who the speaker is.
In my opinion, there is no inconsistency between the decision in Smith and the decision in Butera. Even if I thought there was, it is my duty to follow the decision in Butera unless and until the High Court indicates that it is no longer binding.
I have set out above three extracts from the Judge’s summing up where he deals with the recordings of the intercepted conversations. In the second extract the Judge told the jury, in plain terms, that Mr Wilkins was neither objective nor an expert. He told them that the transcript was there for their assistance, that they were the deciders of the facts, and that it was their view that was important. In the third extract he reminded them that they had to be satisfied, beyond reasonable doubt, that it was the voice of the accused that they were hearing.
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 Mr 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.
Ground 8 – The Judge’s direction dealing with the elements of the offence
Mr Henchliffe submits that the Judge’s directions as to the elements of the offence of taking part in the sale of cocaine were inadequate.
He submits that the Judge failed adequately to bring to the jury’s attention the distinction between acts that were preparatory to the process of sale, and acts that were steps in or part of the process of sale. For example, he submits, an enquiry about the price of cocaine or about its availability might be no more than a preparatory act.
I agree that the distinction is a valid distinction, although it is easier to identify it than to apply it to a given set of facts. I agree with Mr Henchliffe’s example. However, the example assumes that the enquiry does not lead to anything more.
Mr Henchliffe also complains the Judge did not tell the jury that if the completed sale was not established, it must be proved that Mr Solomon intended that a sale would take place. It was not enough that Mr Solomon contemplate the possibility of a sale. I am cautious about stating any general proposition on this topic. However, I agree that generally, if a sale is not proved in a case like the present one, it will be necessary to prove that the accused did things knowing that they would or could assist or advance either a particular sale transaction, or perhaps sales of a particular kind or in particular circumstances. It would usually not be sufficient to show that the accused did things realising that there was a mere possibility that a sale might eventuate.
In Director of Public Prosecutions (No. 2 of 1995) (1995) 65 SASR 508 Williams J, with whom the other members of the Court agreed, said at 513 with reference to s 32(1)(d):
As well as embracing situations in which a sale has been made, the subsection also applies to activities which precede an actual sale – provided that such an event is in contemplation. Moreover, a person taking part in the sale will include not only the intended vendor but also his or her associates who are, relevantly, participants in the operation or who have the appropriate causal connection therewith.
In Re Avory; Question of Law Reserved (No. 1 of 2003) [2003] SASC 430; (2003) 87 SASR 392 Perry J, with whom the other members of the Court agreed, referred to the case just cited, to a 1996 decision on the same topic, and said at [93]-[94]:
As I have been at pains to point out, in both the 1995 reference and the 1996 reference, while they support the view that the proof of a completed sale is not necessary to support a conviction for participation in a sale, where a completed sale is not proved, the judgments in both cases make it clear that the evidence must establish some ongoing process of sale before evidence of participation in sale can be made out.
For example, I do not think that the approach adopted in the South Australian cases on what constitutes participation in sale would support a conviction if there was no actual sale and all that the evidence proved was, for example, the fitting out of a shop in preparation for the establishment of a retail business of sale or the acquisition of some stock before the business had been established.
These decisions support the first submission made by Mr Henchliffe under this ground of appeal, and provide some support for the second proposition. However, I agree with Mr Henchliffe that in the present case it was necessary for the prosecution to prove, if the completed sale was not proved, that Mr Solomon was involved in the process of sale of cocaine, as distinct from performing merely preparatory acts, and that he expected or intended that what he was doing would lead to sale. That is not inconsistent with him also knowing that a sale might not eventuate for all sorts of reasons, such as the purchaser not having the purchase price, or even simply as a result of a change of mind by the purchaser.
The Judge directed the jury as follows:
However, let me expand a little on what is meant by “taking part in the sale of cocaine”, or the third element that I have directed you about. A person takes part in a sale of a drug of dependence if they knowingly take part or participate in any step or cause any step to be taken in the process of that sale. I further direct you that the actual sale in which those steps were taken need not actually be completed but it has to be proved that when a person took part or participated in any step in the process of that sale, that person knowingly contemplated that a sale of cocaine was going to take place. However it does not have to be proved that a sale, in fact, took place.
I will repeat that again if you want me to because it is not easy. A person takes part in the sale of a drug of dependence if they knowingly take part or participate in any step or cause any step to be taken in the process of that sale. So anything leading up to the sale they are part of it knowing what’s going on. Secondly, the actual step which they contemplate must be in the process of that sale, but the sale itself does not have to actually be completed. However, the person must knowingly contemplate that the sale is going to take place. So took part in steps knowing and contemplating that the sale was going to take place, even though something happened whereby that sale didn’t take place. I hope that is clear, ladies and gentlemen.
I make two comments on this direction. It is sufficient in law. It reflects the passages that I have just cited. Second, the Judge used the concept of the accused “knowingly contemplating” that a sale will take place. That adequately conveys what was required in the circumstances. Third, the jury would have been assisted by a reference to the distinction drawn by Perry J between a preparatory act and the process of sale. But, in the circumstances of this case, it was not essential that the Judge so direct the jury.
The jury later came back with a question. It was: “We need clarification of the contemplation of a sale. Please provide an example.” The Judge told them:
… but contemplation for sale for the purposes of these offences of taking part in a sale means that it has to be proved beyond reasonable doubt that the accused, in a particular count, intended there to be a sale. It is as simple as that, contemplation, thought ahead that there was going to be a sale, intended that it was going to happen. As I said to you, but if it did not happen, the offence can still be made out. It does not have to have been completed; they intended that that was going to happen. Is that clear, ladies and gentlemen?
The jury also asked for a further direction on the difference between supplying and selling. The Judge gave them a further direction. The jury asked: “What are the steps in a sale process of cocaine?” The Judge said:
A sale process is when a person – when it is proved beyond reasonable doubt that a person takes or participates in any step or causes any step to be taken in the process of that sale which is intended. So you have to say beyond reasonable doubt whether what is proved comes under that umbrella, and you remember the Crown prosecutor’s comments on each count and the defence counsel’s comments on each count, whether doing those things, whether they have been proved amounts to what I have just read out to you, and you have heard examples – not examples, you have heard the evidence in some of the counts is arranging meeting places, arranging to get the material at the first place. It is a matter for you whether that is taking place, that is, taking steps in the sale of process. Is that clear, ladies and gentlemen?
Once again, in my opinion the jury would have been helped by reference to preparatory acts, but this was not essential.
It is because of the particular circumstances of the case that I consider that although a more informative direction might have been given, it was not necessary to avoid a miscarriage of justice.
The prosecutor provided to the Judge a summary of the prosecution case. I assume that it was not given to the jury. In relation to each count it summarises the evidence of the intercepted conversations relevant to the count. There is an overall summary in a few lines, and then short extracts from the key aspects of the relevant conversation, identifying the intercept number, the date and the time. It is a very helpful document. I have read through it, and it appears to me to be a fair summary of the prosecution case. In relation to count 2, subject to some minor editing by me, it is as follows:
Matthew speaks to Alex, initially about contacting a graphic designer for a business purpose. Alex asks Matthew if his “mate is around”, asking whether he can do him a favour. Matthew tells Alex is “trying”, but comments that it is bad at the moment. Matthew then telephones someone else and asks to organise a “play station” then a “game, a snooker game”. Matthew says that if the person has “the big one” he will take it. Matthew agrees to come to the person’s shop. Matthew then speaks to Alex and confirms that he got hold of someone and he is going to see him “now”. In a conversation about an hour later Matthew tells Alex he went and saw the guy, he is organising it now. Matthews says someone saw it last night and it was good.
In relation to count 7 the initial summary reads as follows (again with some minor editing):
Mary telephones Matthew, and he tells her “the last one went tonight”. Mary asks if he can guarantee her one on Saturday (20 July) and Matthew says he can. On 20 July Mary telephones Matthew and asks “is it possible to get that what we spoke about”. Matthew says there are only balls until Monday, which are 85, but he can do a half for 32. She asks him to bring her a half to look at, he asks her to come to him. He says he is at the Hyatt. She agrees to come there and to telephone him when she arrives. About 30 minutes later Matthew telephones a male who asks Matthew if he needs a “full one”. Matthew says it is not for him, so he’ll have to have a look at it. They arrange to meet outside the Hyatt. About 20 minutes later Mary telephones Matthew to tell him she is at the Hyatt. Matthew speaks to the male who says he is at the front of the Hyatt. The following day Mary telephones Matthew and says “when we got up this morning, we checked it out” and “it’s one full one short”. Matthew says he’ll fix it up. “The scales I used were those huge ones, so … .”
As this material indicates, this is not a case in which the distinction between preparatory acts and acts amounting to participation in sale was critical. I do not suggest that the distinction is wholly irrelevant. But my impression of the evidence is that generally the picture painted was of completed transactions. It is likely that the question from the jury was directed more to the fact that Mr Solomon may not have been the seller of cocaine on a number of occasions, but was acting as an intermediary between the seller and the buyer.
In short, while the directions could have been more helpful, they were adequate for the circumstances of the case.
Ground 11 – The Judge’s directions about the use of evidence on one count in relation to another count; about the use of evidence of dealings which were not the subject of a charge (uncharged acts), and about the use of a finding of guilt on one count when considering another count.
I agree with Mr Hinton, counsel on appeal for the Director, that much of the evidence was admissible in relation to each count of taking part in the sale of cocaine. For example, the evidence of all of the intercepted conversations, and related evidence such as that of Detective Dewar explaining code words, was admissible on each count. For example again, that evidence was admissible to prove the identity of speakers; what they were talking about; that Mr Solomon had contacts who wanted to buy cocaine; that Mr Solomon had contacts who were willing sell cocaine; that Mr Solomon was in regular contact with these people by mobile telephone; that on occasions Mr Solomon acted as an intermediary to arrange a sale, or acquired cocaine and sold it. The Judge directed the jury along these lines. As well, evidence admitted to prove a count on which the jury found Mr Solomon not guilty could be used to prove, for example, the identity of a speaker in a recorded conversation, and what was being discussed. These are examples only, to make the point that much of the evidence in the case was admissible on each count.
The Judge told the jury to consider each count separately. He warned them not to use evidence on one count to reason that Mr Solomon was the type of person who would commit the offence in question. He told the jury not to use the evidence to show that Mr Solomon was a person of bad character, and so by implication not to find against him on that basis.
Mr Henchliffe complains of the following direction:
Secondly, you can use the evidence which is directed at one count in relation to another count to show the relationship between certain people. It would be unrealistic if you had to ignore that. For instance, the relationship between Matthew Solomon and Charlie comes up in a number of counts, and you can use the evidence in those different counts of intercepts between the two to show the relationship between these two men. Also, the relationship between, for instance, Matthew Solomon and Mary; that comes up in a number of counts. In that sense, you can use evidence of one count on another count in relation to that aspect.
The Judge alluded again to this topic near the end of his directions. He reminded the jury not to reason from the evidence on one count to say, in relation to another count, that Mr Solomon was “the type of person who would commit the offence”. He told them to use the evidence on one count only in the manner in which he had earlier told them. He reminded them that the tape recordings could be used for
… consistency of voices or the fact that there is a relationship between the parties, it involves all of those telephone intercepts.
This Court has often said that it is not helpful, and possibly misleading, to tell a jury that evidence of uncharged acts in cases involving charges of sexual offences, especially involving children as the victims, throws light on the relationship between the accused and the victim: see R v Nieterink (1999) 76 SASR 56 at 73. The concept of a relationship between people is not a precise one. In such cases it could invite what is sometimes called propensity reasoning, of an impermissible kind. Mr Henchliffe submits that there is a similar problem here. He submits that a reference to the relationship between Mr Solomon and other persons heard on the recordings is unclear, and might lead the jury into an impermissible form of reasoning that the relationship was one that involved the selling by Mr Solomon of cocaine.
It was open to the jury to find, for example, that Charlie and Mary used cocaine, and contacted Mr Solomon from time to time with a view to obtaining cocaine; that they trusted Mr Solomon and he trusted them, and that Mr Solomon was willing to help them obtain cocaine. The jury were entitled to use that finding, if that is what they found, in deciding on a particular count involving Charlie and Mary, whether the recorded conversation related to Mr Solomon participating in the sale of cocaine, or whether Mr Solomon was just pretending or boasting, and whether a sale is likely to have proceeded. The jury’s findings about the relationship between Mr Solomon and these people might make it easier for them to conclude that the prosecution case was made out. That is not the same thing as inferring that because of the relationship, or because of the finding of guilt, other offences were committed.
The Judge should have helped the jury by explaining in specific terms how the relationship between the accused and callers was relevant. But, once again, in the particular circumstances of this case, I am satisfied that the jury would have understood the reference to a relationship as a reference to matters of the kind that I have identified. There is not the same ambiguity in the term in this case as might arise in a case of sexual offences. The generality of the expression that the Judge used was balanced by several clear warnings against propensity reasoning. I am not persuaded that the Judge’s direction ran any risk of inviting the jury to engage in an impermissible form of reasoning.
The Judge also told the jury that if they found Mr Solomon guilty on one count for selling cocaine:
… the fact that he is in that type of business can be used on the other counts to interpret and give a colour to the conversations that take place on the other counts. It adds an aspect to those other counts that you are dealing with a person whom you say and you found that it has been proved beyond reasonable doubt that on a previous count he was taking part in the sale of cocaine and doing that via these telephone intercepts. You can only use it in that way if it has been proved beyond reasonable doubt on a previous count that that was so. That is not to say and it is not the same as saying “He is the type of person who has committed this offence, therefore I will find him guilty of a subsequent count”. That is not the case. What you are doing is you are factoring in the fact that he has been found guilty of the previous count and that will give colour to the conversations that took place in the subsequent counts. That might be a factor going towards the proof of those other counts.
Mr Henchliffe makes a similar complaint about this direction.

Again, it would have been better if the Judge had been more specific. What he means, I believe, is that satisfaction beyond reasonable doubt that Mr Solomon has engaged in the sale of cocaine, in relation to a particular count, might help rebut any suggestion that he did not have access to buyers or sellers of cocaine, or that this is the sort of activity in which he would not engage. They are only examples. The reference to giving a “colour to the conversations” might involve a form of propensity reasoning, but considering the summing-up as a whole I consider that the Judge adequately warned the jury against that.
For those reasons I reject this submission by Mr Henchliffe. However, yet again I urge trial judges to do their best, when giving directions of this kind, to avoid using general terminology that, at least considered in isolation, might be seen as inviting the jury to reason that a person who offends on one occasion is likely to offend on another occasion. The line between that impermissible form of reasoning, and the permissible use of such evidence, is a relatively fine one but is one that has to be drawn.
Ground 12 – The failure by the prosecution to comply with its obligation of disclosure
During the course of the trial it emerged that the prosecutor had not been told by the police officers responsible for the investigation of the offences of the full extent of the surveillance of Mr Solomon and of others with whom he had contact. The consequence of this was that although a request was made to the Director for disclosure of all surveillance material, complete disclosure had not been made.
It emerged only during the cross-examination of Detective Wilkins that the disclosure was incomplete. This came out before the jury.
Mr Solomon’s solicitor served a subpoena on the Commissioner of Police to produce the undisclosed material. The claim was made that production should be withheld on the grounds of public interest immunity. The Judge upheld that claim. No challenge is made on appeal to that ruling. That was the end of the matter. Nothing was said to the jury about it.
Mr Henchliffe submits that the incomplete disclosure led to a situation in which it came out before the jury that there was additional surveillance material.
I agree with that, but I do not agree that there is any risk that the jury would have drawn an inference adverse to Mr Solomon from the disclosure that there was additional surveillance. I do not agree that there is a risk that the jury would have speculated about the reason for the further surveillance. The jury knew that there had been surveillance of Mr Solomon and others, and that a large number of telephone calls had been intercepted and recorded. In that context, disclosure that there was yet further surveillance seems to me to have been of no great significance. I am not persuaded that this matter gave rise to any risk of a miscarriage of justice.
A similar problem arose a little later in the trial. In what appears to have been close to the end of the cross-examination of Detective Wilkins, the following question and answer occurred:
Q.Finally, is it correct that, during the investigation by you and by your section, no cocaine was ever located on Mr Matthew Solomon’s person?
A.Again, I wish to claim privilege in relation to that.
The jury left the courtroom. After brief submissions the jury returned to the Court and the following evidence was given by Detective Wilkins:
Q. You agree you didn’t locate cocaine on Matthew Solomon’s person?
A.I didn’t locate cocaine on Matthew Solomon’s person and I didn’t locate cannabis on Matthew Solomon’s person.
The initial question might seem a dangerous one, but it was asked because there was no suggestion in the material disclosed by the Director to the defence that any cocaine had been found on Mr Solomon’s person.
Production of the material relevant to these questions was sought by subpoena, and again a claim of public interest immunity was made and upheld. There is no challenge to that claim. Again the complaint is that the failure to disclose the finding of cocaine led to Mr Henchliffe asking the question that is set out above. He submits that the answer was unfairly adverse to Mr Solomon, because it implied that cocaine had been found in his possession.
It is not clear that the police breached their duty of disclosure. But I would have thought that, without undermining the claim of public interest immunity, a means could and should have been found of informing the defence that the question should not have been asked.
Counsel for Mr Solomon, understandably, took the view that it was better for his Honour to say nothing to the jury, rather than give emphasis to the answer that took counsel by surprise. I accept that the jury might have been left thinking that although Detective Wilkins found no cocaine in his possession, another police officer had done so on some other occasion.
At the conclusion of the defence evidence counsel for Mr Solomon asked the Judge to discharge the jury, having regard to the two matters raised under this head of appeal. The Judge refused to do so.
I am satisfied that there is no risk of a miscarriage of justice having arisen from what occurred. This is an occasion in which it was not disputed that Mr Solomon used drugs, and may well have used cocaine. Having regard to the recorded conversations, once the jury accepted that Mr Solomon was one of the speakers, and that they referred to heroin, the jury must have been satisfied that Mr Solomon used cocaine and had it in his possession from time to time. Evidence that on some other occasion a police officer had found cocaine in his possession would not be of any particular significance, even if the jury drew that inference.
What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused. It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director. If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld. What happened in this case illustrates the dangers associated with a failure by the police to provide the Director with all the information which should be provided. Almost at the end of the case counsel asked questions, based on the assumption of full disclosure, that could have led to answers causing a miscarriage of justice, and the need for the whole case to be heard again. The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event.
Conclusion
For those reasons, although there are imperfections in the Judge’s directions to the jury, I am satisfied that there was no error of law made by the trial Judge, and that there is no reason to apprehend a risk of a miscarriage of justice. The appeal against conviction should be dismissed.
DUGGAN J: In my view this appeal should be dismissed. I agree with the reasons of the Chief Justice.
SULAN J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.