Tasmania v Farhat
[2017] TASSC 66
•6 February 2017
[2017] TASSC 66
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Farhat [2017] TASSC 66
PARTIES: STATE OF TASMANIA
v
FARHAT, Shadi
IVEY, Shane
FILE NOS: 313/2013
124/2014
315/2013
DELIVERED ON: 6 February 2017
DELIVERED AT: Launceston
HEARING DATE: 16 November 2016
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Generally – Voice identification evidence.
Evidence Act 2001 (Tas), ss 135, 137.
Aust Dig Criminal Law [2680]
Criminal Law – Evidence – Identification evidence – Modes of identification – Voice identification – Admissibility of voice identification as evidence of fact, expert opinion or lay opinion.
Kheir v The Queen [2014] VSCA 200; Tran v The Queen; Chang v The Queen [2016] VSCA 79, applied.
R v Adler [2000] NSWCCA 357, 116 A Crim R 38; R v Leung [1999] NSWCCA 287, 47 NSWLR 405; Miller v The Queen [2015] NSWCCA 206, considered.
Aust Dig Criminal Law [2940]
Evidence – Opinion evidence – Lay opinion – Basis of opinion – Voice identification evidence admissible alternatively as evidence of fact or lay opinion.
Evidence Act 2001 (Tas), ss 76, 78, 79.
Greaves v Aikman (1994) 4 Tas R 196, referred to.
Lithgow City Council v Jackson [2011] HCA 36, 244 CLR 352, applied.
Aust Dig Evidence [1143]
REPRESENTATION:
Counsel:
Crown: J Ransom, L Brett
Accused Farhat: R Broomhall
Accused Ivey: E Hughes
Solicitors:
Crown: Director of Public Prosecutions
Accused Farhat: N/A
Accused Ivey: Rae and Partners
Judgment Number [2017] TASSC 66
Number of paragraphs: 46
Serial No 66/2017
File Nos 124/2014
313/2013
315/2013
STATE OF TASMANIA v SHADI FARHAT AND SHANE IVEY
REASONS FOR RULING PEARCE J
(RULING DELIVERED DURING TRIAL) 6 February 2017
This ruling concerns a defence challenge to the admission of voice identification evidence. The State seeks to adduce evidence from a police officer, Sgt Luke Bishop, identifying voices on recordings of covert phone intercepts as the voices of the accused, Shadi Farhat and Shane Ivey.
The charges and the objection
Mr Farhat, Mr Ivey and Mickael Bechara are jointly charged with trafficking in a controlled substance between 1 March and 5 September 2013. Mr Farhat and Mr Bechara are also jointly charged with unlawful trafficking in firearms and dealing with the proceeds of crime. Mr Bechara and Mr Ivey are jointly charged with another accused, Bridgette Allen, with one count of pervert the course of justice. All four counts appear on the same indictment and arise from, or are connected to, a related series of events in and leading up to 5 September 2013.
All accused were arraigned on 15 November 2016. I agreed, pursuant to the Criminal Code, s 361A, to determine the question raised by Mr Farhat and Mr Ivey before a jury is sworn. The challenged evidence concerns recordings of phone intercepts obtained pursuant to surveillance warrants in the course of the police investigation. Both accused object to admission of the evidence on three grounds. The first ground is that the evidence is irrelevant. The second ground is that the evidence offends the opinion rule in the Evidence Act 2001 (the Act), s 76. The third ground is that admission of the evidence should be refused under the Act, s 137, because its probative value is outweighed by the danger of unfair prejudice to the defendants. Mr Farhat also submits the Court should refuse to admit the evidence under the Act, s 135, because its probative value is outweighed by the danger that the evidence might be misleading or confusing.
The parties agree that I may, in determining the objection, have regard to the material contained in three volumes of the Crown papers which have been provided to me. The papers included the statements of witnesses and other relevant documents. In addition, a voir dire was conducted at which two police officers, Sgt Bishop and Inspector Joanne Stolp, gave evidence. Neither accused gave or adduced evidence.
Sgt Bishop's voice identification evidence
In 2013, members of the Western Drug Investigation Service of Tasmania Police conducted an investigation into suspected drug trafficking. The accused, Mr Ivey, was one of the persons investigated. On 30 May 2013 and again on 8 July 2013, police officers applied for and obtained warrants to conduct surveillance of a phone or phones they suspected were being used by Mr Ivey. Phone calls were listened to and audio recordings were made. Sgt Bishop, then a detective senior constable stationed in Devonport, was one of the investigating police officers. His involvement commenced in about March 2013 and his primary role was to direct and co-ordinate the investigation of Mr Ivey. The following narrative represents my findings about the evidence for the purposes of the voir dire unless otherwise indicated.
Part of Sgt Bishop's role was to monitor and review the phone intercepts. Police transcribers situated in Hobart prepared transcripts of the recordings of the phone intercepts as soon as they were made, sometimes within a few minutes. The transcripts were immediately accessible to the investigating officers, anywhere in the State, through the police computer network. Sgt Bishop reviewed the transcripts "on a daily basis". He also, occasionally but not frequently, listened to the recordings. He was able to do so when he was in Hobart, or by requesting that a disc of the recording be prepared and sent to him in Devonport.
Both Mr Ivey and Mr Farhat were arrested on 5 September 2013. On that day Sgt Bishop had personal contact with Mr Farhat. He had personal contact with Mr Ivey on 6 November. In each case the nature and extent of that personal contact is relevant to the issue I am considering and I will detail it later. Thereafter the investigation continued. Over the following months Sgt Bishop engaged in what he referred to as "file preparation". He directed his attention to the evidence which had been obtained by the police including the phone intercept recordings. He was asked whether he did anything with those recordings and he answered:
"Yes, any conversation that's recorded, that we intend to use as evidence, I listen to the call and cross-referenced it against the transcript to ensure accuracy. The ladies who transcribe often have got multiple calls and there can be small errors, so I listen to it, read the transcript and correct any errors."
In June or July 2014 Sgt Bishop made statutory declarations in which he asserted that after having heard each man speak in the course of personal contact with them in September, October and November 2013, he was "able to identify" their voices. In the course of Sgt Bishop's evidence on the voir dire two of the phone recordings were played. The first was said to have occurred on 31 May 2013. The duration of the call is just over two minutes. The second is said to have occurred on 3 June 2013. The duration of the call is just over three minutes. It sounds like the same two voices on each recording. Both voices speak in English. Both voices can be clearly heard and understood. The voices are not indistinct or unintelligible.
Sgt Bishop was then asked whether he was able to identify the voices on the recordings of the phone calls. He said that he could, and the voices were those of Mr Ivey and Mr Farhat. Sgt Bishop gave evidence that when he reviewed the transcripts against the telephone calls there were conversations between persons other than Mr Ivey and Mr Farhat, but the lengthiest involved Mr Ivey. He estimated that he listened to 20 or 30 calls between Mr Ivey and Mr Farhat. There was some ambiguity in Sgt Bishop's evidence about when it was that the process of checking all of the transcripts against the recordings took place. In evidence he said that it was about four to six months after his dealings with Mr Ivey in November 2013, which coincides with the date he gave for preparation of his declaration. However he agreed in cross-examination that his declaration asserted that the process took place "over the following month" by reference to November 2013.
The basis of the voice identification
Sgt Bishop had met Mr Ivey only once before September 2013. That meeting was on 25 March 2012 when Sgt Bishop was acting as custody officer at the Devonport police station. When giving evidence on the voir dire Sgt Bishop said that he remembered the meeting. He could not remember the date but had recently checked by looking at the Devonport police station custody register. Mr Ivey was at that time subject to an arrest warrant and his brother arranged for him to present himself to the police station in answer to the warrant. When he was there Mr Ivey spoke to Sgt Bishop. As custody sergeant, Sgt Bishop asked Mr Ivey a series of questions and sought and obtained from him some personal details. The process took about 15 to 20 minutes. It was suggested to Sgt Bishop in cross-examination that the custody process was confined to the formulated questions he was required to ask of Mr Ivey and the limited responses. Sgt Bishop said that he tended to also have "other discussion because it's boring to just sit there and tap away". He agreed that, as custody sergeant, Mr Ivey was one of very many people he dealt with, but maintained he had an independent memory of meeting him.
Sgt Bishop's next personal contact with Mr Ivey was not until 6 November 2013, after the phone intercepts. Sgt Bishop attended a search of a house in Devonport. Mr Ivey was present and was arrested by another officer. Sgt Bishop had some contact, in passing, with Mr Ivey at the police station. However, later on the same day, Sgt Bishop was present with Mr Ivey at the Devonport Magistrates Court. They spent about 20 minutes waiting in the back of the court while waiting for Mr Ivey's hearing. According to Sgt Bishop they had, during that time, a "bit of general discussion about nothing really". They discussed, in "broad terms, what evidence might be available in relation to the charges he was facing at the time". When asked to describe Mr Ivey's voice Sgt Bishop said that Mr Ivey spoke "as if he's a country person, come from a farm, just relaxed". He described Mr Ivey as "quite laid back and very – I don't know if lazy is quite the right word, but to drawl". Sgt Bishop gave evidence that Mr Ivey uses expressions such as "hundred per cent" and says "yeah" a lot.
Mr Farhat was arrested at the Launceston airport on 5 September 2013. Sgt Bishop had not met Mr Farhat until he was brought to the Launceston police station on that day. Sgt Bishop said that he offered Mr Farhat the opportunity to be interviewed, "which he declined". He was present for the "charge process" and then took Mr Farhat's fingerprints. The first attempt to do so was by electronic means. It was unsuccessful. As a result, he resorted to the process of taking "wet fingerprints". Sgt Bishop was then one of two officers who took Mr Farhat from the police station to the Launceston General Hospital so that a blood sample could be taken. He then returned Mr Farhat to the police station. According to Sgt Bishop the whole process took a "couple of hours". He said that during that time the conversation with Mr Farhat was "quite constant in that – there's no real way to say this, he likes to talk. So it was continual conversation on that basis." Within a day or two Sgt Bishop spoke with Mr Farhat again. Then, about a week later, Sgt Bishop spoke to Mr Farhat again in company with Inspector Stolp and in the company of detectives from New South Wales. On 7 October 2013 Sgt Bishop, with Inspector Flude, took a statement from Mr Farhat in an interview room at the Hobart police station. They did so by engaging in a discussion, asking a series of questions and obtaining answers, and recording the information given by Mr Farhat onto a computer. Allowing for breaks the process took, according to Sgt Bishop, four or five hours. He spoke to Mr Farhat once more in November 2013. There is no evidence that any of those conversations were recorded.
Sgt Bishop was also asked to describe Mr Farhat's voice. He said that it was "middle eastern, which is unusual in Tasmania", and that he was "quite animated or excited, I would say, in the way that he talks". He said that Mr Farhat's voice was "very distinctive as far as I'm concerned".
Sgt Bishop was challenged by counsel for Mr Farhat about the extent of the opportunity he had to hear Mr Farhat's voice. However I find Sgt Bishop to be an honest and reliable witness. He freely acknowledged that the times he gave were estimates. There was some variation between the times he was able to recall and times he had recorded in earlier declarations, but nothing alters the substance of his evidence about that issue.
Sgt Bishop was asked by counsel for Mr Ivey when it was that he was able to identify Mr Ivey's voice on the recorded phone intercepts. The question was asked by reference to June and July 2014 when Sgt Bishop made the statutory declaration in which he expressed, for the first time, his identification of the voices. Sgt Bishop answered that it was at the later time, when he "went through the transcription and listened to the calls and cross referenced them" that he was "fully satisfied that I was listening to" the accused.
Analysis of the nature of the identification evidence
Because Sgt Bishop had not heard Mr Farhat's voice before 5 September 2013 he could not have identified his voice on the recordings before then. Moreover, it would have been difficult for Sgt Bishop to identify Mr Ivey's voice on the recordings before 6 November 2013 because, before then, he had heard it only once, in unremarkable circumstances more than a year earlier, and could not have been very familiar with it. Importantly, it was not Sgt Bishop's evidence that, when he spoke to the men in 2013, in September, October and November in the case of Mr Farhat, and November in the case of Mr Ivey, he recognised the voice of either man as being those he had listened to on the phone intercept recordings he had started listening to in about May 2013.
Sgt Bishop's evidence is that he identified the voices on the recordings when he listened or re-listened to them between November 2013 and June or July 2014, after his conversations in person with each accused. In other words, that he identified the voices he listened to on the recordings from his recollection of the voices he heard in person.
The State's case
The State alleges that both accused were trafficking in drugs by engaging in the business of selling drugs in the sense described in Giretti and Giretti(1986) 24 A Crim R 112. An accused cannot be convicted unless the Crown proves beyond reasonable doubt that for a period during the period alleged in the indictment, not necessarily the whole period, the accused was engaged in a continuous activity of a commercial and systematic kind.
The recorded phone intercepts contain statements which tend to incriminate the persons speaking. Sgt Bishop's evidence is to be adduced along with other evidence to assist the jury to reach the conclusion that the voices on the tapes are those of the accused, Mr Farhat and Mr Ivey.
Relevance
The identity of the persons speaking on the phone recordings is a fact in issue in the proceedings. It has not been suggested that there is another proved or admitted example of the voice of either accused which the jury will have to use for side-by-side comparison. At trial the jury may not hear the voices of either Mr Farhat or Mr Ivey. It cannot be predicted whether either of them will give evidence. Without hearing the voice of an accused the jurors cannot make a comparison with the voices which they will hear on the surveillance recordings. Sgt Bishop's perception of the comparison between the voices of Mr Farhat and Mr Ivey he heard, and the recordings of the voices he listened to, thus meets the test of relevance because he is in a better position to make that comparison than the jurors will be: Smith v The Queen [2001] HCA 50, 206 CLR 650 at 654-655 [9].
The objection that the impugned evidence is irrelevant is overruled.
Opinion
The accused each submit that Sgt Bishop's evidence that the voices on the recordings are those of the accused is an expression of his opinion and is subject to the opinion rule in the Act, s 76(1):
"Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed."
The State did not submit that the proposed evidence was not opinion evidence, but contends that the evidence is in the nature of "ad hoc" expert evidence and falls within the exception contained in s 79(1):
"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
In the course of argument I raised with counsel whether the lay opinion exception in s 78 of the Act may also have application. Counsel for the State did not seek to rely on it but I invited counsel for the accused to make submissions about it. Section 78 provides:
"The opinion rule does not apply to evidence of an opinion expressed by a person if —
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event."
The first question is whether Sgt Bishop's evidence is opinion evidence at all. The Act does not define the term "opinion". It can be taken to mean "an inference from observed and communicable data": Lithgow City Council v Jackson [2011] HCA 36, 244 CLR 352 at 359 [10]. The line between fact and opinion is not easy to draw: Smith v The Queen (above) per Kirby J at [52]. Sgt Bishop's evidence is identification evidence. The most common form of identification evidence is evidence of visual identification. However identification by sound, aural resemblance, is also identification evidence: the Act, s 3: Bulejcik v The Queen (1996) 185 CLR 375. In one sense Sgt Bishop's evidence is not evidence of an inference, but evidence of fact which has been "processed through the witness's mind via perception, classification, recollection and utterance", an analysis which, according to the authors of Cross on Evidence, 10th Australian Edition at [29015], has been "accepted by the courts in the context of evidence of identification". Visual identification evidence is commonly admitted without suggestion that it may be subject to exclusion as evidence of opinion. A series of cases in New South Wales, commencing with Smith [1984] 1 NSWLR 462, decided at common law that evidence of voice identification is admissible only when the witness is very familiar with the voice, or the voice of the accused is very distinctive. The correctness of that line of authority was doubted by the High Court in Bulejcik, in which McHugh and Gummow JJ stated at 406:
"It is arguable that Smith was wrongly decided in so far as it holds that evidence of voice identification is only admissible when the witness is very familiar with the accused's voice or when the voice of the accused is very distinctive. Visual identification evidence does not have to meet a similar threshold standard. Nor is the difference between voice and visual identification so different in principle that they require separate conditions of admissibility." [Footnote omitted.]
Courts in Victoria declined to follow the New South Wales authority, as did Cox J (as he then was) in this State in Greaves v Aikman (1994) 4 Tas R 196. In that case his Honour stated that "there is no rigid rule of law, that absent familiarity with the voice or distinctive features … the evidence is inadmissible". In any event, it was determined in R v Adler [2000] NSWCCA 357, 116 A Crim R 38 at [13]-[14] and Miller v The Queen [2015] NSWCCA 206 that the New South Wales cases establishing a common law requirement that in some circumstances there was a threshold admissibility requirement for voice identification evidence that the voice heard had some distinctive feature or the witness had sufficient prior familiarity with it did not survive the enactment of the Evidence Act. In Miller, there was no objection that the voice identification evidence was evidence of opinion. The Court of Criminal Appeal referred to the decisions in Adler and R v Riscuta[2003] NSWCCA 6at [34] as authority for the proposition that under the Evidence Act 1995 (NSW) the only precondition for the admission of voice identification evidence is the requirement in s 55(1) that it be relevant, and that if the evidence is relevant, it is admissible unless an order is made to exclude it under ss 135, 137 or 138.
It is to be remembered that the decision of Cox J in Greaves was prior to the introduction of the uniform evidence legislation, but it reflects the approach now adopted in the post-Act authorities just referred to. In AK v Western Australia [2008] HCA 8, 232 CLR 438 at 460 [66] and following, Heydon J undertook a detailed analysis of identification evidence given by the victim of a sexual crime without resort to consideration of whether, to be admissible, the evidence had to be brought within an exception to the opinion evidence rule.
However, other cases have treated voice identification evidence as evidence of opinion. In Smith v The Queen, Kirby J suggested, at [57], that where a real risk of misidentification is present the evidence should be regarded as opinion evidence. The question was considered by the New South Wales Court of Criminal Appeal in R v Leung [1999] NSWCCA 287, 47 NSWLR 405. Simpson J, with whom Spigelman CJ and Sperling J agreed, stated at [43]:
"The line between opinion evidence and evidence of fact is not always clearly defined. Evidence of physical identification illustrates the point. On the one hand such evidence may be characterised as evidence of fact; but, depending on the circumstances, it may more properly be characterised as evidence of opinion. The ordinary observer would regard evidence given by a man identifying his wife of thirty years as evidence of fact; but a witness who identifies a suspect in a police lineup would be perceived as giving evidence more closely allied to opinion evidence. Where the evidence is more properly seen as opinion evidence, it is frequently opinion evidence permitted to be given by a person without specialist qualifications, but whose specialised experience of the person of whom the identification is made qualifies him or her to give the evidence. It may be that this is a familiar example of an ad hoc expert."
Assuming the correctness of the proposition that Sgt Bishop's evidence is of opinion, there are two theoretical paths to admissibility. The first is as lay opinion under s 78. The second is as an ad hoc expert giving opinion evidence under s 79. As to the application of the two provisions there is a difference of approach between the intermediate courts of appeal in Victoria and New South Wales. The New South Wales authority stems from the decision of Simpson J in R v Leung. In that case an experienced interpreter gave evidence of his attribution of voices to two accused following comparison of the voices on recordings he had translated, some of which was in Cantonese or accented English. Her Honour found that s 78, based on the wording of the section, had no application. She stated at [34] that:
"… the relevant matter was the identity of the speakers on the DAT tapes. Mr Fung's perception of that matter did not become relevant until he had formed his opinion as to that identity. Evidence of his opinion was therefore not necessary to obtain an adequate account or understanding of his perception. It was his opinion evidence that was said to render his perception of the matter or event relevant and admissible. Without his opinion, there was no 'matter or event' perceived by him, understanding of which would be facilitated by evidence of his opinion. His opinion was the primary, not the incidental, evidence."
Nevertheless, Simpson J reached the conclusion, with which Spigelman CJ and Sperling J agreed, that the evidence was correctly admitted under s 79. Her Honour found that by reason of his repeated listening and language skills the witness had become an expert by acquiring specialised knowledge ad hoc. Her Honour referred to R v Menzies [1982] 1 NZLR 40 and Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, both common law cases in which the notion of an ad hoc expert was accepted and evidence permitted to decipher tape recordings which were otherwise indistinct or unintelligible without repeated listening.
A different view is taken of the application of s 78 in Victoria. In Kheir v The Queen [2014] VSCA 200 the Court of Appeal considered the evidence of a police officer who, after listening to approximately 1,000 telephone calls over about a month, said he was able to attribute the voices on the phone intercepts to the accused when he heard them speak following their arrest. The plurality stated at [62] that in Victoria "identity evidence, whether visual or aural, had never been treated as a matter requiring proof of expertise, whether ad hoc or otherwise". It continued at [65]:
"In our view, the evidence of Sergeant Bray was more appropriately viewed as falling within s 78 than s 79. The 'matter' of which Sergeant Bray had a 'perception' was the audio recordings of the telephone intercepts, the recordings of the applicant's record of interview and a comparison of the two. His perception of that comparison met the test of relevance because he was in a better position to make that comparison than the jurors were. Whether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. Sergeant Bray's opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices' similarities." [Footnotes omitted.]
The law as stated in Kheir was recently reapplied in Victoria in Tran v The Queen; Chang v The Queen [2016] VSCA 79.
I will first address the application of s 79. In my view, the level of familiarity which Sgt Bishop had with the voices of Mr Ivey and Mr Farhat falls far short of him being constituted an ad hoc expert. In each case his opportunity to hear the voices of the men was of relatively short duration. In the case of Mr Ivey it was very limited indeed. Sgt Bishop had a greater opportunity to listen to Mr Farhat, but it was still insufficient, in my view, to amount to him obtaining any form of expertise. However, even if I am wrong about that, my conclusion is of no consequence because I prefer to adopt the approach to s 78 applied by the Court of Appeal in Victoria. I consider that the evidence is admissible under s 78. In my view that approach accords with Greaves v Aikman and is more consistent with the decision of the High Court in Lithgow City Council v Jackson. In that case the plurality, comprising French CJ, Heydon and Bell JJ, with Gummow and Crennan JJ agreeing, observed at [45]:
"Function of common law rule. The common law permitted the reception of nonexpert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
There is controversy about whether s 78 is precisely identical with the common law. But it is clear that s 78 is dealing with the same problem as the common law did in instances within the category just described." [Footnotes omitted.]
Opinion evidence of identity is one of the instances specifically referred to in the passage just quoted. Although Sgt Bishop referred to some specific matters which he said went to his identification of the voices, ordinary human experience suggests that his opinion was based on the perception of many matters which may be difficult or even impossible for him to adequately convey, including for example tone, pitch and speed of speech, accent, modulation, resonance, inflection, phrasing and the like.
For those reasons I consider that the impugned evidence is, even if correctly described as evidence of opinion, admissible under the Act, s 78.
Section 137: probative value versus unfair prejudice
Section 137 of the Act provides that, in criminal proceedings, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. It does not involve the exercise of discretion. It requires "an evaluative judgment mandating exclusion": IMM v The Queen [2016] HCA 14, 90 ALJR 529 at [16]. Unless I am satisfied that the probative value is not outweighed by the danger of unfair prejudice the evidence must be excluded.
"Probative value" is defined in the Act, s 3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Since IMM the approach to assessment of probative value has been authoritatively established. The majority comprising French CJ, Kiefel J (as she then was), Bell and Keane JJ, found at [44] that the assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put must be taken at its highest. The majority of the High Court confirmed the correctness of the approach of the Court of Criminal Appeal in New South Wales in R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228 and R v Sood [2007] NSWCCA 214, applied in Tasmania in KMJ v Tasmania [2011] TASCCA 7, 20 Tas R 425. When assessing the probative value of evidence for the purposes of s 137, a trial judge must proceed on the assumption that the jury will accept the evidence. Issues of the credibility and reliability are irrelevant to the assessment. At 329 [52], the majority in IMM stated:
"Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two — reliability and credibility — as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence."
Thus, the probative value of Sgt of Bishop's evidence is to be assessed on the basis that its credibility and reliability is accepted by a jury. If the jury is to be taken to accept the evidence, the evidence proves that the voices Sgt Bishop heard on the phone intercept recordings are those of Mr Farhat and Mr Ivey. Given the incriminating nature of the statements made by both men during the conversations, the probative value of the evidence is high. Unsurprisingly however, counsel for the accused relied on another passage in the judgment of the majority in IMM in support of the submission that the probative value of the identification evidence is low. With apparent approval of an example given by former Justice Heydon writing extra judicially in 2014, the majority said at 392 [50]:
"It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence." [Footnotes omitted.]
The dangers of identification evidence are well known. The risk of error and resulting injustice is notorious. If admitted, clear warnings to juries are required by the Act, ss 116 and 165. The accused submit that, adopting the words of the majority in IMM, Sgt Bishop's voice identification evidence is not merely weak but "simply unconvincing". It is not difficult to understand the basis of the submission. Sgt Bishop's identification was made by comparison between voices he heard in different forms – one in person and the other recorded from phone conversations. Viewed objectively, his level of familiarity with the voices was not high. He spoke to Mr Ivey for a limited period and there was nothing about the description given by Sgt Bishop of the voice which made it particularly distinctive. The features he described are commonly encountered. As to Mr Farhat, Sgt Bishop referred to the accent, rate of speech and level of excitement as distinguishing features. However, those features are not particularly atypical. Sgt Bishop said that middle eastern voices are not commonly encountered in this State, but it is to be remembered that the voice comparison was made with a voice heard in a recorded phone conversation which could theoretically have been made from a place in which such voices are much more common. Without other circumstantial evidence tending to prove the call was made in this State, the factor which Sgt Bishop relied on adds little. Conversely, Sgt Bishop's lack of experience with such accented voices may reduce his ability to accurately perceive distinguishing characteristics.
There is one particular factor which may affect the reliability of the identification made by Sgt Bishop which I think will, if the evidence is admitted, require a strong warning to the jury. It arises from Sgt Bishop's exposure to the phone intercept transcripts and recordings before he heard Mr Farhat and Mr Ivey (apart from, in his case, the much earlier conversation) speak in late 2013. Between May 2013 and 5 September 2013 Sgt Bishop read the transcripts of the recordings on an almost daily basis, and occasionally listened to the recordings. The phone intercept transcripts are included in the Crown papers and are in the conversational form commonly seen by courts. The name of each speaker appears in upper case letters on the left margin of each page adjacent to each passage of transcript attributed to that speaker. The transcript read by Sgt Bishop attributes the voices heard by the transcribers and transcribed as those of Mr Farhat and Mr Ivey, and their names are typed into the transcript in the manner just described, appearing on multiple occasions on each page. Because the transcripts of the conversations relevantly identified the voices on the recordings as being those of Mr Farhat and Mr Ivey, someone within the investigation must, by then, have decided that the voices were those of Mr Farhat and Mr Ivey and conveyed that information to the police transcribers. The basis of that identification is not made clear by the evidence. It must be that there is other circumstantial evidence which identifies the speakers. There must have been some basis to conclude some association between the various phones for which warrants were obtained and one or more of the accused. In some cases the contents of the conversations themselves enable inferences to be drawn about the identity of the speaker. For example, in one instance the speaker leaves a message identifying himself as "Shadi". The calls may be considered in conjunction with physical surveillance enabling inferences about the location of a speaker and an association with addresses and other persons. Two points arise. Firstly, because the voices were identified on the transcripts as those of Mr Farhat and Mr Ivey when Sgt Bishop listened to the tapes before September 2013, he must have believed he was listening to Mr Ivey and Mr Farhat because the transcript said so. Secondly, because Sgt Bishop had already heard the voices on the recordings between May and September 2013, the prospect exists that when he listened again to the tapes after November 2013 it would have been difficult for him to distinguish between his memory of the voices he had heard on the tape recordings and his memory of the voices he heard from Mr Farhat and Mr Ivey personally.
I confess to some difficulty in resolving the proper approach to the evidence in light of the identification example given by the majority in IMM. Identification evidence is unconvincing but that is because it is unreliable. However, applying the statements of principle in IMM to the assessment of the probative value of the evidence, I must assume that the jury accepts not only that Sgt Bishop identified the voices, but that also that his evidence is credible and reliable. The possibility that Sgt Bishop's evidence is affected by the factors generally applying to identification evidence, or contaminated by his prior exposure to the transcripts and recordings does not deprive the evidence of probative value. This is not a case where I am deciding whether it would be safe for the jury to convict the accused on the evidence of Sgt Bishop's identification evidence alone. The impugned evidence is a piece of circumstantial evidence to be considered by the jury with other evidence. I have decided that the probative value of the evidence is such that it is not outweighed by the risk of unfair prejudice because, in this case, there is very little risk of unfairness.
All evidence which makes it more likely that an accused person will be convicted is prejudicial. Section 137 is concerned with unfair prejudice. What amounts to "unfair prejudice" was considered by the Court of Criminal Appeal in KMJ (above); see Evans J at [36]–[38]:
"I turn to unfair prejudice. Evidence is not unfairly prejudicial to an accused for the purposes of s137 merely because it makes it more likely that the accused will be convicted. In this context, the prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way: Papakosmas v R (supra), McHugh J, par[91], Festa v R (2001) 208 CLR 593, Gleeson CJ, par[20], and McHugh J, par[51]."
In W v The Queen [2006] TASSC 52, 16 Tas R 1, Blow J (as he then was) at [43] referred to and applied the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at [644]:
"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."
The principles were recently applied again in Donohue v Tasmania [2016] TASCCA 17. The accused submit that, in this case, the risk of unfair prejudice arises because the jury may misuse the evidence by unfairly giving it more weight than it deserves. I do not agree. In my view, these are matters which can be appropriately dealt with by directions and warnings to the jury, and are not likely to divert the jury from its task of rationally assessing the evidence. Any shortcomings in the identification made by Sgt Bishop are a matter for the jury.
Exclusion under s 135
Counsel for Mr Farhat also submitted that I should exercise my discretion to refuse to admit the evidence under s 135(b) on the basis that its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing. My view of this case is that s 135 adds nothing to s 137. I do not accept that a jury, properly instructed and directed about the impugned evidence, is likely to be misled or confused by it.
Result and orders
For the foregoing reasons I overrule the objections to the challenged evidence. The evidence of Sgt Bishop to the effect that he identified the voices on the tape recordings he listened to following November 2013 as being the voices of the accused Mr Farhat and Mr Ivey will be admitted at trial.
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