Regina v Gao - [2003] NSWCCA 390

CITATION: REGINA v. GAO [2003] NSWCCA 390

HEARING DATE(S): Tuesday 16 December 2003

JUDGMENT DATE:
16 December 2003

JUDGMENT OF: Sully J at 1/29; Greg James J at 2; Adams J at 30

DECISION: Appeal against conviction dismissed; application for leave to appeal against sentence granted; appeal against sentence dismissed.

CATCHWORDS: Criminal law - appeal against conviction - sentence - voice identification - speech in intercepted telephone calls in Cantonese - police officer hears calls - later identifies voice of speaker from Cantonese speech at interview with police - held evidence rightly admitted - appellant spoken to in Cantonese during interview in which he refused to answer questions - his reply in Cantonese used for voice identification - no impropriety found - vocal sounds not a representation - no legal necessity for recording to make the voice identificaion evidence admissible - no basis for challenge to sentence.

LEGISLATION CITED: Customs Act 1901 (Cth)
Criminal Procedue Act 1986
Evidence Act 1995
Crimes Act 1914 (Cth)

CASES CITED: Mundarra Smith [2001] HCA 50
Leong (1999) 47 NSWLR 405

PARTIES :
REGINA v. GAO, Zhen Yu Michael

FILE NUMBER(S): CCA No. 60307 of 2003

COUNSEL: Crown: M. Cinque
App: S. Kluss

SOLICITORS: Crown: Commonwealth DPP
App: Ross Hill & Associates

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 02/11/0057

LOWER COURT
JUDICIAL OFFICER : Shillington, ADCJ.

No. 60307 of 2003

SULLY, J.
GREG JAMES, J.
ADAMS, J.
TUESDAY 16 DECEMBER 2003

REGINA v. ZHEN YU MICHAEL GAO

Judgment

1 SULLY, J: We are able to express a view about this matter at once. I invite Greg James J to give the first judgment.

2 GREG JAMES, J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was tried in the District Court of New South Wales at Sydney before his Honour Judge Shillington and a jury from 12 August 2002 to 30 August 2002 on one count of having been knowingly concerned in the importation of a commercial quantity of heroin, that being an offence against s.233B(1)(d) of the Customs Act 1901. The appellant, who had pleaded not guilty, was found guilty by the verdict of the jury and was sentenced to 12 years imprisonment with a non-parole period of eight years that sentence to commence on 2 May 2001 and to expire on 1 May 2009. The appellant had been in custody since his arrest.

3 At the trial counsel who appeared on the appellant’s behalf took objection to certain of the evidence that it was apparently expected might be tendered on the trial. That evidence included evidence identifying the voice of the appellant. Although the objection was taken to the evidence, the nature of the evidence that it was expected would be tendered was not made entirely clear at the time at which the trial judge on the second day of the trial decided that a voir dire might be held as to the admissibility of that evidence. Objection was taken to the…

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.

Continue reading Regina v Gao

Details

AGLC: Regina v Gao [2003] NSWCCA 390
Case: [2003] NSWCCA 390
Decision Date: 16 December 2003

CaseChat Overview and Summary

In Regina v Gao, the appellant was convicted of various drug-related offences and subsequently appealed against his conviction and sentence. The case was heard in a court of appeal. The central issue before the court was the admissibility of evidence derived from voice identification in intercepted telephone conversations conducted in Cantonese. The appellant contested the use of this evidence, arguing it was obtained improperly and should not have been admitted.

The court examined whether the evidence of voice identification was properly obtained and if the process adhered to legal standards. The police officer who heard the intercepted calls was able to identify the appellant's voice from his Cantonese speech during a subsequent police interview. The court found that there was no impropriety in the process, as the officer's identification was based on his professional expertise and prior familiarity with the appellant's voice. The court also determined that the vocal sounds did not constitute a representation of the appellant's voice and that there was no legal requirement for the recording to be made to render the voice identification evidence admissible.

The court further considered the challenge to the sentence imposed on the appellant. After a thorough review, the court found no basis for altering the sentence. It held that the evidence was correctly admitted, and the sentence was proportionate to the crimes committed. Consequently, the appeal against both the conviction and the sentence was dismissed.

Orders