Hohipa v R

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Hohipa v R

Court of Appeal Wellington CA576/2014; [2015] NZCA 73
27 November 2014, 18 March 2015
Ellen France P, Miller and Cooper JJ

Criminal practice and procedure – Pre-trial appeals – Leave to appeal –

Approach to be taken by Court of Appeal under Criminal Procedure Act 2011 – When cases to be determined on papers – Criminal Procedure Act 2011, ss 215, 216, 217, 218, 329 and 331.

Evidence – Voice identiﬁcation – Standard of proof – Criminal Procedure Act
2011, s 217 – Evidence Act 2006, s 46.

Dennis McCally Hohipa (Mr Hohipa) was charged with being a party to a methamphetamine conspiracy. The police had monitored a number of telephones. Detective Baker listened to more than 200 telephone calls and transcribed them with the aid of telephone logs which identiﬁed the telephone numbers in use. He was said to have become familiar with the voices speaking
and the topics of conversation. The Crown relied on two of these telephone calls to establish Mr Hohipa’s participation in the conspiracy. In neither call was his name mentioned. In October 2013,n cash, drug paraphernalia and stolen goods were found by police in his home. Detective Kirk was one of the Police who entered his home. He spoke to him then and later at the Gisborne
Police Station. Detective Baker played Detective Kirk a recording of a conversation from the Hohipa’s home phone. It began with a woman greeting the other person as Dennis. Detective Kirk identiﬁed that person as Mr Hohipa. Three more calls were played, in two of those a person was addressed as Deni or Dennis. A fourth call, one of those relied on to establish Mr Hohipa’s
participation in the conspiracy was played. Detective Kirk identiﬁed Mr Hohipa as each call was played.
Mr Hohipa sought leave to appeal from a pre-trial ruling that the voice identiﬁcation was sufficiently reliable to go to a jury.

Held: 1 The previous approach to granting of leave to pre-trial appeals should

be carried over under the new Act. Where the Court of Appeal was a ﬁrst appeal court considerations to be taken into account in deciding an application for leave to appeal against a pre-trial ruling. These considerations include;

As favouring granting leave:

(a) the argument was based on a novel point or was of signiﬁcance for

other cases;
(b) there was conﬂicting authority on the issue, the application related to an identiﬁed error of law, the admissibility of the evidence was important to one of the parties;

(c) the matter could not be dealt with adequately in any appeal after the trial; or
(d) there were only limited post-trial appeal rights and the proposed grounds of appeal were arguable.
As pointing towards refusing leave:   5 (a) the issue would need to be revisited at trial or was best dealt with in
the context of the trial;
(b) the evidence would not make a signiﬁcant difference to the course of the trial and would be unlikely to lead to post-conviction appeal
success, the issue was best dealt with in the context of any   10 post-conviction appeal, it challenged a factual ﬁnding;
(c) it challenged the exercise of a discretion unless grounds pointed to the fact that the judge had acted on a wrong principle, had given weight to extraneous or irrelevant matters, had failed to give sufficient weight to relevant considerations or was plainly wrong;   15
(d) the appeal would cause unnecessary delay, the proposed appeal was
without merit. (see [25], [26]).

Practice Note — R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 applied.

2 (Ellen France P dissenting) The standard for determining whether the 20 circumstances in which voice identiﬁcation was made could produce reliable identiﬁcation was the balance of the probabilities. That standard was ﬂexible in

that the evidence demanded by it may be more or less extensive depending on the context and nature of the allegation (see [71]).

3 Circumstances that ought to be taken into account when assessing voice   25 recognition evidence are;
(a) the witness’ degree of familiarity with the person identiﬁed;
(b) any identiﬁable properties of the voice that distinguish it from others; (c) the duration of the speech to be identiﬁed and anything about it that
might affect recognition;   30 (d) any delay between hearing the speech and making the identiﬁcation
and anything else that might affect the memory of the witness;
(e) the characteristics of any recorded speech used to make the identiﬁcation and the quality of the recording;
(f) anything about the circumstances that may create a psychological   35 predisposition to identify a person selected by an investigator;
(g) whether any police procedure was adequately documented; (h) the witness’s ability to distinguish between voices;
(i) any hesitation in making the initial identiﬁcation; and
(j) anything else about the circumstances that bears on reliability (see   40 [73]).
Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 applied.

4 The voice identiﬁcation by both Police officers should be excluded. Voice recognition rests on familiarity and without something remarkable about the voice, in the circumstances reliable identiﬁcation called for closer acquaintance 45 than each officer possessed. The Crown could revisit the admissibility of Detective Baker’s evidence at trial if the circumstances of his identiﬁcation should change (see [83], [84], [88], [89], [91]).

Observations: 1 Reasons why it may be inexpedient or not in the interests of justice to hear an appeal before trial include that facts material to the Court’s decision have not been established and that appeal may cause delay. Pre-trial and leave to appeal applications should be made promptly. Serial applications

should be avoided (see [31]).
Practice Note — R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218
considered.
2 Voice recognition evidence from investigating officers had to be examined with care. Any procedure used must not inﬂuence the officer to
identify a given person. The procedure should be adequately documented (see
[90]).

Cases mentioned in judgment
A-G’s Ref (No 2 of 2002) [2002] EWCA Crim 2373, [2003] Crim LR 192.
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No

5) (1996) 64 FCR 73 (FCA), (1996) 136 ALR 627.
B v R [2010] NZCA 77.
Bank of Valletta plc v National Crime Authority [1999] FCA 1099, (1999) 165
ALR 60.
Briginshaw v Briginshaw [1938] HCA 34, [1938] 60 CLR 336.
Bulejcik v R [1996] HCA 50, (1996) 185 CLR 375.
Clare & Peach v R [1995] 2 Cr App Rep 333, (1995) 159 JP 412.
Hamed v R [Leave] [2011] NZSC 27, [2011] 3 NZLR 725.
Harney v R [2010] NZCA 264.
McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
McGrath v R [2005] NZSC 50.
R v Coleman and Others [1996] 2 NZLR 525, (1996) 13 CRNZ 663 (CA).
R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.
R v Edwards DC Gisborne CRI-2013-016-2548, 22 September 2014.
R v Flynn [2008] EWCA Crim 970, [2008] All ER (D) 30 (May).
R v Hall [2006] EWCA Crim 3401.
R v Harris (No 3) [1990] VR 310 (VSC).
R v Howe [1982] 1 NZLR 618 (CA).
R v Livingston [2001] 1 NZLR 167, (2000) 18 CRNZ 162 (CA).
R v Menzies [1982] 1 NZLR 40 (CA).
R v O’Doherty [2002] Crim LR 761.
R v Robinson [2005] EWCA Crim 1940.
R v Tipene (2001) 19 CRNZ 93 (CA).
R v Thomson-Wiari [2009] NZCA 562.
Re B (Children) [2008] UKHL 35 [2009] 1 AC 11.
R v Waipouri [1993] 2 NZLR 410, (1992) 9 CRNZ 330 (CA).
Re H (Minors) [1996] AC 563, [1996] 1 All ER 1 (HL).
Tamiz v R [2010] EWCA Crim 2638.
Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145.
Wu v R [2011] NZCA 358, [2011] 3 NZLR 764.
Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1
NZLR 1.

Appeal
Dennis McCally Hohipa sought leave from the Court of Appeal to appeal against a pre-trial decision that evidence was admissible. The Court heard his

appeal.

T Epati for the appellant.
MD Downs for the respondent.

The judgment of the Court was delivered by
MILLER J.

Table of contents

5

Para no

Leavecriteria [6] The legislation [7]

Criteria for leave in pre-trial appeals where this Court is the ﬁrst appeal court
Practice in pre-trial appeals where this Court is the ﬁrst appeal
court

[24]

10

[32]

Pre-trial appeals where this Court is the second appeal court [37] Leave in this case [41]

Narrative [43] 15

Voice identiﬁcation under the Evidence Act 2006  [53] Deﬁnition and categorisation  [53] Voice identiﬁcation as opinion evidence  [58] Temporary or ad hoc expertise  [60]
The admissibility threshold for voice identiﬁcation evidence  [62]     20
The onus and standard of proof  [66]

What circumstances should guide judges when assessing reliability?

[72]

The evidence of Detective Baker [74]

The evidence of Detective Kirk [85] 25

Decision [91]

Dennis McCally Hohipa (Mr Hohipa) stands accused of participation in a methamphetamine dealing conspiracy which is evidenced by a large number of intercepted communications. The Crown means to establish his guilt by

proving, among other things, that he took part in two telephone calls in which 30 incriminating statements were made. The proof will take the form of voice identiﬁcation evidence, to be offered by two police officers.

The ﬁrst officer, Detective Baker, has never met Mr Hohipa or heard an independently conﬁrmed sample of his voice, but he did spend much time listening to the intercepted communications, which it was his task to transcribe. 35

He proposes to offer the opinion, as an expert ad hoc, that a speaker on the two

incriminating calls was the same person speaking on other intercepted calls. He was also to offer the opinion, by reference to names or other identifying details associated with those other calls, that the speaker was Mr Hohipa, but

Mr Downs advised us that the Crown no longer intends to go so far. 40

The second officer, Detective Kirk, helped execute a search warrant at

Mr Hohipa’s home. It was his assigned task to arrest Mr Hohipa, whom he had not previously met. Mr Hohipa tersely denied involvement, exercised his right to silence, and refused to listen to the phone calls. Immediately after leaving

him in the cells at the Gisborne Police Station, Detective Kirk undertook an 45

identiﬁcation procedure. It involved four intercepted calls, selected and played by Detective Baker. In the ﬁrst three of them a speaker was addressed by Mr Hohipa’s forename. The fourth was one of the incriminating calls. Immediately each call was played Detective Kirk identiﬁed Mr Hohipa. He

proposes to offer that identiﬁcation.
[4] Mr Hohipa challenges the voice identiﬁcation evidence in this appeal
from a pre-trial ruling given in the Gisborne District Court.1 His counsel, Ms Epati, observes that voice identiﬁcation evidence may not be admitted unless the trial judge is satisﬁed that it is sufficiently reliable to go to the jury,
and contends that the Judge here did not confront the reliability threshold and the evidence does not cross it.
[5] Mr Hohipa needs leave to appeal, and we begin with that issue.

Leave criteria
[6] This is the ﬁrst case in which the Court has examined the criteria for

applications for leave to bring pre-trial appeals under subpart 2 (pre-trial appeals) of part 6 (appeals generally) of the Criminal Procedure Act 2011 (the CPA).

The legislation
[7] No general right of appeal lies from interlocutory decisions made before

trial; rather, the CPA provides, like its predecessor,2 that speciﬁed decisions may be appealed by leave of the court appealed to. Those decisions are listed
in s 215, which deals with pre-trial evidential decisions in Judge-alone cases, in s 217, which deals with category 4 and category 3 jury cases, and in s 218, which deals with particulars and venue in jury cases.
[8] Section 215 allows the defendant or the prosecutor a pre-trial appeal by leave of the court appealed to (the ﬁrst appeal court) where the proceeding is to be tried by a judge alone. Such appeals are restricted to a small class of decisions:
(2) The defendant or the prosecutor may, with the leave of the ﬁrst appeal
court, appeal to that court against a decision that is one of the following:
(a) making or refusing to make an order under section 79 (as to admissibility of evidence):
(b) granting or refusing to grant permission under section 44 of the
Evidence Act 2006 (which relates to the cross-examination of a complainant):
(c) giving or refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (which relates to the identity of a witness):
(d) making or refusing to make a witness anonymity order under section 112 of the Evidence Act 2006.

[9] The list of appealable decisions in ss 217 and 218 corresponds generally to that formerly found in s 379A of the Crimes Act 1961. Section 217 allows the defendant or the prosecutor a much more extensive range of pre-trial

appeals in jury cases. Again, appeal is by leave of the ﬁrst appeal court:

1 R v Edwards DC Gisborne CRI-2013-016-2548, 22 September 2014.
2 Crimes Act 1961, s 379A; R v Livingston [2001] 1 NZLR 167, (2000) 18 CRNZ 162 (CA)
at [23]; and McGrath v R [2005] NZSC 50 at [4].

(2) The defendant or the prosecutor may, with the leave of the ﬁrst appeal court, appeal to that court against a decision that is one of the following:
(a) making or refusing to make an order under section 21 (to amend, divide, or amalgamate charges): 5

(b) making or refusing to make an order under section 101 (pre-trial
order about admissibility of evidence):

(c) making or refusing to make an order under section 102 (that
Judge-alone trial be held in case likely to be long and complex):

(d) making or refusing to make an order under section 103 (that 10
Judge-alone trial be held in case involving intimidation of jurors):

(e) amending or refusing to amend a charge under section 133:
(f)making or refusing to make an order under section 138(4) (that defendant be tried separately on 1 or more charges):
(g) making or refusing to make an order under section 151 (for a   15 person to be retried on ground that acquittal tainted):
(h) refusing to   make an order under section 157 (to transfer proceeding to a court at another place):
(i)granting or refusing to grant permission under section 44 of the Evidence Act 2006 (relating to the cross-examination of a   20 complainant):
(j)giving or   refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (relating to the identity of a witness):
(k) making or refusing to make a witness anonymity order under   25 section 112 of the Evidence Act 2006.

Section 218 allows the defendant (but not the prosecutor) to seek leave to appeal orders under s 18 (further particulars of a charge) or 157 (change of venue) in jury cases.

[11] In an appeal under s 215 (Judge-alone cases), s 216(2) speciﬁes that the 30 ﬁrst appeal court may refuse leave to appeal if, without limitation, it thinks it expedient that the issue under appeal should be determined on a post-trial appeal.3 The legislation is otherwise silent about the criteria for deciding

pre-trial appeals.

The trial court may begin or continue the trial although an application 35 for leave, or a pre-trial appeal, has not been determined, if satisﬁed that it is in

the interests of justice to do so.4 A similar provision was found in s 379A(6) of the Crimes Act, but it was conﬁned to pre-trial appeals under s 344A of that Act (admissibility of evidence). The power now found in s 222 of the CPA is

not conﬁned to any subset of pre-trial decisions. 40

The ﬁrst appeal court for pre-trial appeals is:5

(a) a District Court presided over by a District Court Judge, if the appeal is against a decision of a District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) the High Court, if the appeal is against a decision of a District Court 45 presided over by a District Court Judge, other than a decision—

Criminal Procedure Act 2011 (CPA), s 216(2).
Section 222(2).
Section 219.

(i) made in proceedings for a category 3 offence after the defendant elected a jury trial; or
(ii) made in proceedings for a category 4 offence; or

(c) either the Court of Appeal or the Supreme Court, in any other case.

This Court is the ﬁrst appeal court in this case because the crimes charged are category 3 offences for which we were told Mr Hohipa has elected trial by jury. [14] It remains the case, as it was under the Crimes Act, that the ﬁrst appeal court’s decision to grant or refuse leave to appeal a pre-trial ruling is ﬁnal6 but a decision determining a pre-trial appeal may be further appealed to a second
appeal court by leave of the latter. The second appeal court is:7
(a) the High Court, if the appeal is against a determination of a District
Court; or
(b) either the Court of Appeal or the Supreme Court, if the appeal is against a determination of the High Court; or
(c) the Supreme Court, if the appeal is against a determination of the
Court of Appeal.
[15] It will be seen that this Court serves as the second appeal court where the ﬁrst appeal decision is that of the High Court, which as noted above is the ﬁrst appeal court under s 219(b). In category 4 cases and in category 3 cases where
the defendant has elected jury trial, the Supreme Court is the second appeal court.8
[16] The criteria for second appeals have been aligned. So far as this Court and the High Court are concerned, section 223(3) provides:
(3) The High Court or the Court of Appeal must not give leave for a
second appeal under this subpart unless satisﬁed that—
(a) the appeal involves a matter of general or public importance; or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
These criteria are the same as those in s 13(2)(a) and (b) of the Supreme Court
Act 2003, which Act governs appeals to that Court under Part 6 of the CPA.9
We note that s 13(4) provides that the Supreme Court must not give leave to
appeal on an interlocutory application unless satisﬁed that it is necessary in the interests of justice that the proposed appeal be determined before the proceeding concerned is concluded.10
[17] Where this court determines a second appeal in a case to which s 215 applies, a third appeal may be brought to the Supreme Court on a question of law, by leave of that Court.11
[18] Leave applications may be decided “on the papers” or, as the Act puts it, “just on the basis of written material”,12 and a single judge of this Court may

6      Section 213.
7      Section 224.
8      Unless exceptional circumstances are established to bypass the Court of Appeal pursuant
to s 14 of the Supreme Court Act 2003.
9      Criminal Procedure Act 2011, s 213(1).
10    The term “interlocutory application” is deﬁned in s 4 of the Supreme Court Act. The
Court has held that pre-trial evidential rulings are interlocutory in nature: Hamed v
R [Leave] [2011] NZSC 27, [2011] 3 NZLR 725.
11    CPA, s 228. The right of appeal is conﬁned to a point of law, but Part 6 is subject to
ss 12–14 of the Supreme Court Act 2003.
12    Section 327(3).

decide how a leave application will be heard.13 A decision that a leave application will be decided on the papers must be in writing, accompanied by reasons, and given to the parties, but the decision is discretionary in nature.14

By contrast, s 329 lists considerations that must be considered before any

appeal, including a pre-trial appeal, may be decided on the papers. 5 [19] The provisions about on the papers hearings mark a signiﬁcant departure from the former legislation. Section 392A of the Crimes Act established a presumption that appeals and applications for leave to appeal would both be heard orally, and the criteria now found in s 329 of the CPA might be

considered before leave was decided on the papers. Those criteria are now 10 mandatory considerations for appeals, but they are not expressly said to be relevant to leave applications and the presumption that leave applications will receive oral hearings is conspicuous by its absence.

Where an application or appeal is decided on the papers, s 331 provides

that the parties may make written submissions, which the Court may consider 15 in any manner it thinks ﬁt and upon which it must base its decision:

(2) The parties may make written, but not oral, submissions to the court, and may include in their submissions—
(a) additional relevant written material; and
(b) responses to any submissions made by the other party. 20 (3) Neither the parties nor their representatives may appear before the
court.
(4) The appeal must be determined by the court on the basis of the written material before it.
(5) The court may consider the written material before it in any manner it 25 thinks ﬁt.

Finally, the duty of an appeal court to determine an appeal is subject to any leave requirements being met.15
Leave having been granted, a ﬁrst appeal court must determine an appeal

by conﬁrming or varying the decision appealed from or setting it aside and 30 making any other order it thinks appropriate.16 A second appeal court may exercise any power that the ﬁrst appeal court exercised or could have exercised.17

The CPA’s legislative history demonstrates that Parliament intended this Court should retain its supervisory responsibility for jury trials.18 Nothing in 35 the legislation suggests that Subpart 2 was intended to effect any substantive change to the criteria that the Court has developed for leave applications.19 Nor

is change precluded; apart from s 216(2), which is permissive, the legislation appropriately leaves it to the courts to develop criteria for deciding pre-trial appeals. Changes from the former legislation reﬂect not policy changes but new 40 trial procedures and appeal pathways.

Section 327(2).
Section 327(3).
Section 213(4).
Section 221.
Section 226(2).
Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) at 11 (explanatory
note).
Ministry of Justice and New Zealand Law Commission Departmental Report for the
Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill
(16 May 2011) at [1102].

Criteria for leave in pre-trial appeals where this Court is the ﬁrst appeal court
[24] In 2007 the Court reviewed its then current practice of hearing applications for leave to appeal pre-trial decisions at the same time as the

associated pre-trial appeals. The Court held in R v Leonard that the practice should be followed only where, on the papers ﬁled, it appeared likely that the leave criteria would be met: in other cases, leave should be decided separately.20 Where leave was refused, reasons would be given brieﬂy and in general terms. Where leave was granted reasons would not normally be given.
The Court contemplated that leave applications, and if necessary, appeals, might be decided on the papers.21
[25] The Court identiﬁed a non-exhaustive list of considerations that would be taken into account when deciding leave applications. Those favouring leave included:22

(a) the argument is based on a novel point or is of signiﬁcance for other cases;
(b) there is conﬂicting authority covering the issue to be determined on the proposed appeal;
(c) the application relates to an identiﬁed error of law;
(d) the application involves the admissibility of evidence that is important to one of the parties;
(f)the matter cannot be dealt with adequately in any appeal after the trial or there are only limited post-trial appeal rights (as will often be the case for Crown applications); and
(g) the proposed grounds of appeal are arguable.
[26] Those considerations pointing towards refusing leave included:

(a) the issue will need to be revisited at trial or is best dealt with in the context of the trial;

(b) the application involves the admissibility of evidence that would not

make a signiﬁcant difference to the course of the trial and is unlikely to lead to post-conviction appeal success;
(c) the issue is best dealt with in the context of any post-conviction appeal;
(d) the application challenges a factual ﬁnding, especially where the
ﬁnding rests on an assessment of credibility;
(e) the application challenges the exercise of a discretion. In such cases
leave should not be granted unless there are grounds articulated which point to the fact that the judge has, in exercising his or her discretion, acted on some wrong principle, has given weight to extraneous or
irrelevant matters, has failed to give sufficient weight to relevant considerations, or is plainly wrong;
(f)the appeal will cause unnecessary delay: for example, where there is not time to hear the appeal before the trial commences or where it would unduly delay the trial; and
(g) the proposed appeal is without merit.

20 Practice Note — R v Leonard [Leonard] [2007] NZCA 452, [2008] 2 NZLR 218 at
[39]–[40].
21 At [40].
22 At [13].

The Court has continued until now to apply the Leonard criteria to leave applications for pre-trial appeals. We are satisﬁed that those criteria should continue to apply under the CPA. They remain relevant. As the Court said in Leonard, some criteria may not apply in every case, some may matter more than others, and none is dispositive.23 They will evolve as appropriate. 5 [28] The criteria do not require elaboration, but we do make three points. First, expediency has always been an important consideration in pre-trial appeals,24 and that remains true. The availability of an appeal after trial distinguishes pre-trial leave applications from other appeals by leave under the

Act.25 So for example, s 216(2) provides that leave may be refused if the 10 appeal court thinks it expedient that the issue be determined by appeal after

trial. That section is concerned with appeals under s 215, but the same consideration applies to appeals under ss 217 and 218.

Second, the trial court may pre-empt an appeal by deciding to begin or continue the trial notwithstanding that a leave application, or pre-trial appeal, 15 has not been determined, if satisﬁed that it is in the interests of justice to carry

on.26 The Court previously made it clear that it did not mean to discourage trial judges from exercising the corresponding power in s 379A(6) of the Crimes Act,27 and that remains the position. Experience does not suggest that the

power has been used inappropriately. We have noted that s 222 is not conﬁned, 20 as s 379A(6) was, to pre-trial appeals about admissibility of evidence.

Third, the premise of s 222 is that it may not be in the interests of justice to hear an appeal before trial. That being so, this Court may also deny leave to appeal on that ground.
There may be many reasons why it is inexpedient, or not in the interests 25 of justice, to hear an appeal before trial. The appeal may be premature, in that

facts material to the Court’s decision have not been established. Or the appeal may cause undue delay. For this latter reason, those making pre-trial applications and those seeking leave to appeal should move promptly, as the Court noted in Leonard,28 and serial applications should be avoided.29 30

Practice in pre-trial appeals where this Court is the ﬁrst appeal court

As noted, Leonard examined the practice of hearing leave applications and appeals together. The Court decided that leave applications would be heard separately as a matter of course.30
In practice that has not happened. In 2012 and 2013 fewer than 35

10 per cent of leave applications were heard separately.31 Most are argued with

the appeal at an oral hearing. This practice we think results from concern that separate leave hearings delay those appeals in which leave is granted, jeopardising trial dates, and use more court time. Those concerns would be

At [16].
At [24].
McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [40].
CPA, s 222.
Leonard, above n 20, at [24].
At [24]. Applications must be brought within 20 working days, although time may be
extended: CPA s 220.
R v Coleman and Others [1996] 2 NZLR 525, (1996) 13 CRNZ 663 (CA) at 528–529.
Leonard, above n 20, at [8].
Six per cent were heard separately in 2013, seven per cent in 2012.

ameliorated if leave applications were decided on the papers. At present very few are.32 Some pre-trial appeals are given leave but dismissed on the ground that the issue ought to await trial.33
[34] Hearing time continues to be a scarce resource that the Court must use

well. In Leonard the Court noted that it had delivered 566 judgments as at
10 December 2007;34 the corresponding ﬁgure for 2014 is 609. That total
includes civil appeals, which have grown as a proportion of the Court’s workload. The number of pre-trial leave applications ﬁled has remained static, at about 70 per annum. Waiting lists for conviction appeals are approximately
six months, and for civil appeals as long as 12 months for the permanent Court. [35] As noted, the legislation no longer presumes that leave applications will receive an oral hearing. Rather, the mode of hearing decision is discretionary. That change appears to reﬂect a legislative desire to advance the interests of justice by assisting the courts to address causes of delay in their processes.35
[36] The Supreme Court customarily disposes of leave applications on the papers. That Court’s workload comprises for the most part second appeals in which the leave criteria are more stringent, but by their nature leave applications are often susceptible to decision on the papers; as a general rule, it is only in clear cases that leave will be declined on the merits, and in a pre-trial
setting the reasons why it is just or expedient to await trial will usually be apparent. We signal our intention to consider leave applications on the papers, where convenient and appropriate, in pre-trial appeals.

Pre-trial appeals where this Court is the second appeal court
[37] In McAllister v R, this Court addressed the criteria for second appeals by

leave under s 264 of the CPA, which deals with second appeals under Subpart 5 (contempt) of Part 6.36 The Court observed that the legislature has aligned the criteria for leave in s 264 with those in s 13 of the Supreme Court Act; that being so, as a general principle this Court should approach leave applications in the same manner as the Supreme Court.37 So for example, the
criterion in s 264(2)(a) that the appeal should involve “a matter of general or public importance” – which is identical to s 223(3)(a) – will be met:38

... where the proposed appeal gives rise to an issue of ‘general principle or of general importance in the administration of the criminal law by the Courts’. An illustration of a matter of general or public importance is one

raising an important question of law having broad application beyond the circumstances of the particular case. By contrast, there are numerous illustrations in the leave decisions of the Supreme Court where leave has been declined on the basis that the application for leave raises issues in the nature of a ‘factual assessment that is speciﬁc to the circumstances of the
case” or the application of “well-established principles to a particular fact situation’.

32    Five were dealt with on the papers in 2013, one in 2012, and none in 2011.
33    See for example B v R [2010] NZCA 77; and R v Weatherston [2009] NZCA 267.
34    Leonard, above n 20, at [7].
35    Ministry of Justice and New Zealand Law Commission, above n 19, at 27–28; and
Criminal Procedure (Reform and Modernisation) Bill 2010, above n 18, at 1.
36    McAllister, above n 25.
37 At [34].
38    At [36] (footnotes omitted).

The Court observed that the miscarriage of justice criterion in s 264(2)(b), which is identical to s 223(3)(b), could be approached in various ways, as the Supreme Court has done, and that ﬂexibility should be preserved. The Court noted that miscarriage is not deﬁned and added that not every error

justiﬁes leave: 5

[37] The statutory indications are that it is not intended that every error will give rise to a miscarriage. For example, s 264(2)(b) requires the Court to be satisﬁed a miscarriage may have occurred, or may occur ‘unless the appeal is heard’...

The Court contemplated that the Supreme Court approach need not be 10 applied in every case:39

[39] We emphasise that what may be termed the [Supreme Court] approach should apply “in general”. That qualiﬁcation is necessary for several reasons. The ﬁrst reason is that the courts have differing roles. For example, this Court’s approach to leave will need to reﬂect the Court’s 15 supervisory role in relation to aspects of criminal practice such as sentencing. There may also be occasions in which this Court will grant
leave in order to preserve appeal rights to the Supreme Court. For example, leave may be granted where an applicant wishes to challenge an earlier decision of this Court in reliance on which leave would otherwise be 20 declined. We observe, however, that these types of cases can be dealt with
by seeking leave of the Supreme Court to appeal directly from the High
Court to the Supreme Court.

The approach signalled in McAllister will apply equally to second appeals under s 223, at least initially. And as noted there, the Court intends to 25 deal with leave applications on the papers where appropriate.40

Leave in this case

The preconditions to an appeal have been met; the offences are category
3, the defendant has elected trial by jury, and the decisions below fall within

s 217(2)(b). The appeal raises important questions of law about voice 30 identiﬁcation evidence. Leave is granted accordingly.

We turn to the facts.

Narrative

The Crown alleges that between September 2012 and October 2013

Debbie Edwards and Mr Hohipa regularly sourced methamphetamine in 35

Auckland and distributed it from their Gisborne home. Another person,

Paul Campbell, is said to have acted as their supplier. He lived in Gisborne and travelled regularly to Auckland to obtain the drug. Some 45 ounces were allegedly obtained in this way, in 15 separate transactions, while

communications were being intercepted between July and October 2013. 40

A number of telephones were monitored, including the home phone of

Ms Edwards and Mr Hohipa. Between 15 and 25 October 2013, when the police were planning arrests in conjunction with a major purchase, more than

200 voice calls were intercepted. Detective Baker monitored the intercepted

communications during this period, listening to and transcribing 45

Footnotes omitted.
At [45].

communications with the aid of interception logs which identiﬁed the phone numbers in use. He is said to have become familiar with the voices speaking and the topics of conversation.
[45] As noted earlier, the Crown relies upon two voice calls to establish

Mr Hohipa’s knowing participation in the conspiracy. In neither was his name mentioned. The ﬁrst conversation was held on 21 October. It followed discussions between Ms Edwards and another defendant about a purchase of a kilogram of methamphetamine for $400,000. Ms Edwards then spoke to a man, allegedly Mr Hohipa, who is said to have agreed to the purchase:
DH: Oh year and um yeah nah he’s saying 400. Oh 4...
DE: Oh 400 grand. Okay
DH: Yeah that’s what he said but he said it might be 40
DE: Okay then
DH: Okay
DE: Alright. Alright
[46] The second conversation was held on 24 October. A person, said to be Mr Hohipa, spoke to Mr Campbell about needing “a couple”. Mr Campbell then made arrangements to obtain the methamphetamine. He was arrested the following day en route to Gisborne with two ounces of methamphetamine in his
car.
[47] The operation was terminated on 25 October 2013. Cash, drug
paraphernalia and stolen goods were found at the home of Ms Edwards and
Mr Hohipa.
[48] Detective Kirk was one of the officers who entered the home at 7.20 am.
As noted, he had not previously met Mr Hohipa, whom he advised of his rights and arrested. The following exchange occurred:

Detective Kirk: Okay Dennis, you and I are going to head back to the station
Mr Hohipa: Why, what for?

Detective Kirk: Because you are under arrest
Mr Hohipa: What for
Detective Kirk: For conspiring to supply a class A controlled drug
Mr Hohipa: I don’t have any of that shit on me. Not me mate. You’ve got the wrong person.
[49] At the Gisborne Police Station Detective Kirk tried to engage
Mr Hohipa in conversation, without success:

Detective Kirk: So Dennis, let’s have a talk about why you’ve been arrested.
Mr Hohipa: I’m not saying anything, I know my rights. I’ve got absolutely

no comment to make.
[50] After being placed in the cells Mr Hohipa refused the Detective’s invitation to listen to intercepted phone calls:
Detective Kirk: Dennis, as you may already be aware, we have recorded some phone conversations involving you and I was wondering if you
would like to come and listen to some?

Mr Hohipa: I don’t have any phones. Nah, I’m not doing that.

Detective Kirk relies upon these conversations to identify Mr Hohipa as the speaker on the two evidential calls. The identiﬁcation was made at 9.30 am, shortly after the detective left Mr Hohipa in the cells. Detective Baker played Detective Kirk a recording of a conversation recorded from the home phone. It 5 began with a woman identiﬁed as KK greeting the other party, a man, by

Mr Hohipa’s forename: DH: Kia ora
KK: Dennis
DH: Hey 10
KK: Is mum there
DH: Yip, Are you bringing our baby home
KK: Yeah
DH: Good girl, ok I’ll go get her ...

Immediately the call was played Detective Kirk identiﬁed the male speaker as 15

Mr Hohipa.

Detective Baker then played three more calls. In the second and third, one of the speakers was also addressed as “Deni” or “Dennis”. The fourth was the call referred to at [46] above. Detective Kirk identiﬁed Mr Hohipa as each

call was played. 20

Voice identiﬁcation under the Evidence Act 2006

Deﬁnition and categorisation

Voice identiﬁcation evidence is deﬁned as a witness’s assertion to the effect that a voice heard is that of the defendant or other person connected with

the alleged offence:41 25

Voice identiﬁcation evidence means evidence that is an assertion by a person to the effect that a voice, whether heard ﬁrst-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence 30

We observe that the deﬁnition requires an assertion that a given voice is that of a particular person. Not all evidence that tends to identify a person is identiﬁcation evidence as deﬁned.42

For purposes of our analysis, it is convenient to divide voice identiﬁcation evidence into three categories: 35
(a) Lay recognition: evidence of a witness who is familiar with the defendant’s voice. Familiarity usually owes itself to close acquaintance before the offence;
(b) Expert recognition: evidence of a witness, usually a police officer, who

Evidence Act 2006, s 4.
Questions of deﬁnition sometimes arise where the defendant suggests that identiﬁcation
procedures ought to have been followed or a jury warning given. See for example R v
Turaki [2009] NZCA 310.

has no prior connection with the defendant but has acquired sufficient familiarity with his or her voice by repeated and close listening to samples of speech.43

(c) Expert analysis: evidence of a witness who has analysed voice

samples using some technique, such as acoustic or auditory analysis,44
in which the witness is appropriately qualiﬁed.
[55] The ﬁrst and second categories rest on recognition, because the witness draws an inference about identity by listening to the voice and comparing it with his or her memory of the defendant’s.
[56] The second and third categories require expertise. The second recognises that investigating officers may by repeated and close analysis acquire special knowledge of the evidence, and that their opinions founded upon that knowledge may be of substantial help to the fact-ﬁnder. 45 Evidence of this kind may be led, for example, where intercepted communications must be decoded,
or where photographs must be examined closely to make an identiﬁcation.46
[57] Detective Baker’s evidence falls into the second category. It is to be
offered as expert recognition evidence. Detective Kirk’s identiﬁcation falls into the ﬁrst category: the Crown does not suggest that he possesses relevant expertise.

Voice identiﬁcation as opinion evidence
[58] In New Zealand, the Supreme Court has classiﬁed identiﬁcation
evidence as a species of opinion evidence.47 Identiﬁcation includes recognition.48The rationale for treating recognition evidence as opinion, even where the witness and defendant know one another well, is that an
identiﬁcation is an inference from observed facts.49
[59] Opinion evidence is not admissible, except as provided for in ss 24 and
25.50 Under s 24 an opinion offered by a lay witness is admissible if necessary to allow the witness to communicate, or the fact-ﬁnder to understand, what the witness saw, or heard, or otherwise perceived. Section 24 applies to Detective
Kirk’s voice identiﬁcation evidence. Under s 25, opinion evidence is admissible where the witness is a relevantly qualiﬁed expert and the opinion is likely to afford the fact-ﬁnder substantial help in understanding other evidence or ascertaining any signiﬁcant fact. Section 25 applies to the voice identiﬁcation evidence of Detective Baker.

43    The cases have described the required degree of familiarity and study in a variety of ways: “signiﬁcant familiarity ... by intensive study over a period of time” (R v Tipene (2001) 19
CRNZ 93 (CA) at [18]); “relevant familiarity sufficient... to recognise the suspect’s voice” and “acquired knowledge by many hours spent studying ...” (R v Flynn [2008] EWCA Crim 970, [2008] All ER (D) 30 (May) at [19] and [21]); “substantial time viewing and analysing” (A-G’s Ref (No 2 of 2002) [2002] EWCA Crim 2373, [2003] Crim LR 192 at [19]); “lengthy and studious application to material ...” (Clare & Peach v R [1995] 2 Cr App Rep 333, (1995) 159 JP 412 at 338); and “listen[ing] ... at great length” (Wu v R [2011] NZCA 358, [2011] 3 NZLR 764 at [68]).
44    R v O’Doherty [2002] Crim LR 761
45    Tipene, above n 43; and R v Menzies [1982] 1 NZLR 40 (CA).
46    R v Howe [1982] 1 NZLR 618 (CA); and A-G’s Reference (No 2 of 2002), above n 43.
47    Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [15] and [17].
48    At [16]; and R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.
49    Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (1996)
64 FCR 73 (FCA), (1996) 136 ALR 627 at 629; Bank of Valletta plc v National Crime
Authority [1999] FCA 1099, (1999) 165 ALR 60 at [20]; Richard Mahoney and others The
Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [23.02]; and
Flynn, above n 43, at [27].
50    CPA, s 23.

Temporary or ad hoc expertise

Ms Epati did not dispute that a police officer’s temporary or ad hoc expertise may in principle extend to voice identiﬁcation evidence.51 Rather, she sought to exclude it here by recourse to a rule that would limit the circumstances in which such evidence may be offered. The rule, which counsel 5 derived from Tipene v R, is that such evidence is admissible only where the “primary” evidence – meaning the evidence on which the opinion was based –

is also called.52 We understood counsel to mean that the rule requires that the prosecutor play not only those calls tending to prove or disprove something of

consequence but also all other calls upon which the officer relied to make his 10 voice identiﬁcation. Counsel’s ultimate objective was to establish that the jury, having heard every call for themselves, would gain no help from the officer’s evidence.

We do not accept that Tipene is authority for counsel’s proposed rule,53

and we decline to lay down any such rule. It is for the trial judge to decide, 15 having regard to ss 7 and 8 of the Evidence Act, whether the “primary” evidence tends to prove or disprove anything of consequence and whether it

will needlessly prolong the trial. Such decisions are case-speciﬁc. We also reject the assumption that a jury will gain no help from the officer’s specialised knowledge where they have heard the primary evidence for themselves. The 20 officer’s evidence may afford the jury substantial assistance to the extent that it depends on repeated and close study that the jury cannot practically replicate.54

The admissibility threshold for voice identiﬁcation evidence

Identiﬁcation evidence is notoriously prone to cause miscarriages of justice. Witnesses may be honest and conﬁdent and hence plausible, and yet, for 25 any one of many reasons, wrong.55 For this reason such evidence must also comply with Subpart 6 of Part 2 of the Evidence Act. Sections 45 and 46

govern the admissibility of visual and voice identiﬁcation evidence respectively, and s 46A requires that the court must bear in mind the need for caution before convicting a defendant on disputed identiﬁcation evidence.56 30 [63] Under s 46 voice identiﬁcation evidence is prima facie inadmissible.

The prosecution may offer it only after satisfying the court on the balance of probabilities that the circumstances in which the identiﬁcation was made render it reliable:57

46 Admissibility of voice identiﬁcation evidence 35
Voice identiﬁcation evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of

She did argue that expertise in voice identiﬁcation by recognition is not easily acquired and any claim to possess it must be scrutinised with care. We address at [78] below her challenge to Detective Baker’s expertise.
Tipene, above n 43.
The officer had studied numerous photographs of the accused, and it appears that not all
of those photographs were in evidence: at [6], [7], [24].
Tipene, above n 43, at [16] and [18]; Howe, above n 46, at 627; and Clare and Peach,
above n 43, at 338.
See the discussion in Edmonds, above n 48, at [33]–[36].
Section 126 also requires a warning in jury cases that depend substantially on
identiﬁcation evidence.
For a discussion on what external or extrinsic factors constitute relevant circumstances,
see Harney v Police, above n 47, at [30]–[31]; Harney v R [2010] NZCA 264 at [32]–[34];
and Edmonds, above n 48, at [112]–[115].

probabilities that the circumstances in which the identiﬁcation was made have produced a reliable identiﬁcation.
[64] By contrast, the legislation establishes formal procedures for visual identiﬁcation evidence. Where such procedures were followed, or there was

good reason not to, the evidence is prima facie admissible: to exclude it, the defendant must prove on the balance of probabilities that it is unreliable. In any other case, the evidence is inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances of the identiﬁcation render it reliable:
45 Admissibility of visual identiﬁcation evidence
(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identiﬁcation evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the
balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an
enforcement agency in obtaining visual identiﬁcation evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is
inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identiﬁcation was made have produced a reliable identiﬁcation.
[65] Section 45 also provides that a formal procedure must compare the
defendant to no fewer than seven other persons, that the witness may be given no indication as to which of them is the defendant, and that the witness must be told that the defendant may or may not be one of those in the procedure:

(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identiﬁcation evidence—

(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identiﬁed is compared to no fewer than
7 other persons who are similar in appearance to the person to be identiﬁed; and
(c) in which no indication is given to the person making the identiﬁcation as to who among the persons in the procedure is the person to be identiﬁed; and
(d) in which the person making the identiﬁcation is informed that the person to be identiﬁed may or may not be among the persons in
the procedure; and
(e) that is the subject of a written record of the procedure actually
followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certiﬁed to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in
regulations made under section 201.

The onus and standard of proof

The onus and standard of proof evolved during the legislative process but the record is uninformative. The Law Commission had recommended that the prosecution should be required to prove beyond reasonable doubt, for both

visual and voice identiﬁcation, that the circumstances were likely to have 5 produced a reliable identiﬁcation.58 The Evidence Bill introduced on 3 May

2005 opted for a lesser standard; both voice identiﬁcation evidence and visual identiﬁcation evidence for which no formal procedure had been followed would be admissible if on the balance of probabilities the circumstances had produced

a reliable identiﬁcation. The Justice and Electoral Select Committee raised to 10 beyond reasonable doubt the standard for visual identiﬁcation evidence where,

for no good reason, the police failed to follow a formal procedure, but it did not remark upon the voice identiﬁcation standard. Nothing in the legislative history explains why the balance of probabilities was thought appropriate for voice identiﬁcation evidence. 15 [67] We accept Mr Downs’s submission that the “beyond reasonable doubt” standard in s 45 supplies an incentive for the police to follow formal procedures. Where formal procedures have been followed or were not followed

for good reason, the standard is lower; the evidence is admissible, unless the defendant proves on the balance of probabilities that it is unreliable. The lower 20 standard and reverse onus together reﬂect the legislature’s estimation of the

risks inherent in visual identiﬁcation evidence. By contrast, voice identiﬁcation evidence is never presumptively admissible and the onus of proving reliability always rests on the prosecution. So the legislation is consistent with the authorities, which recognise that voice identiﬁcation evidence is generally less 25

reliable than visual.59

The unreliability of recognition evidence has two dimensions. First, the witness may be mistaken. Voice recognition is a commonplace of human experience,60 and there is evidence that familiar voices can be recognised with

a high degree of accuracy.61 However, witnesses may overestimate their ability 30 to recognise even familiar voices.62 Accuracy depends upon many factors: the degree of familiarity,63 any distinctive properties of the voice,64 the duration of

the speech to be identiﬁed65 the listener’s ability to distinguish among voices,66

Law Commission Evidence: Reform of the Law (NZLC R55 vol 1, 1999) at 67; and Law
Commission Evidence: Evidence Code and Commentary (NZLC R55 vol 2, 1999) at
134–135.
The leading New Zealand authority remains R v Waipouri [1993] 2 NZLR 410, (1992) 9
CRNZ 330 (CA), in which this Court recognised that voice recognition evidence is less
reliable than visual: at 413 and 417.
As Brennan CJ put it in Bulejcik v R [1996] HCA 50, (1996) 185 CLR 375 at 381.
David Ormerod “Sounds Familiar? – Voice Identiﬁcation Evidence” (2001) Crim LR 595
at 597. By way of illustration, in one study participants listened to voices speaking 50–58
words in three contexts: normal, stressed and disguised. One group of participants were
very familiar with the speakers; they achieved near-perfect recognition for the normal and
stressed voices. Another group were not familiar with the speakers; their scores were
above chance, and some listeners were better than others, but the overall success rate was
about 40 per cent or, as the authors put it, insufficient for “practical identiﬁcation”: Harry
Hollien, Wojciech Majewski and E Thomas Doherty “Perceptual Identiﬁcation of Voices
Under Normal, Stress and Disguise Speaking Conditions” (1982) 10 Journal of Phonetics
139.
Flynn, above n 43, at [16] and [24]; and Ormerod, above n 61.
Flynn, above n 43, at [16].
At [16].
At [16]; and Bulejcik, above n 60, at 394–395.
Flynn, above n 43, at [16].

the manner in which the voice was being used at the time (in this we include the speaker’s emotional state) and the circumstances in which it was heard,67 the quality of any recorded speech used to make the identiﬁcation,68 and anything that might affect memory (such as delay between hearing the speech to be

identiﬁed and making the identiﬁcation).69
[69] Second, the fact-ﬁnder cannot easily evaluate the evidence, and in consequence may resort to problematic measures such as the witness’s expressed conﬁdence. An inexpert witness is unlikely to identify those properties of the voice upon which he or she relies for the identiﬁcation and
may describe it in subjective terms.70 As this Court put it in Waipouri:71

A particular feature of the impression that a voice makes is that unless it has some noticeable feature such as an impediment or a strong accent, it is almost impossible for the ordinary person to describe it.

[70] Against this background, the legislation poses a threshold question for

the trial judge to answer: has the prosecutor established that the circumstances have produced a reliable identiﬁcation?72 The judge may not defer to the jury by reasoning that the question is one of fact, to be accompanied by a reliability warning and proved at trial beyond reasonable doubt. Excluding identiﬁcation evidence that is unreliable but persuasive is the whole point of s 46, and the
question asked of the judge is not whether the identiﬁcation was correct in fact but whether it is reliable.
[71] The standard is the balance of probabilities. It is sometimes described as ﬂexible,73 meaning not that the standard itself varies but that the evidence it demands may be more or less extensive, depending on the context and the
nature of the allegation.74 Notably, the nature of an allegation may determine the process by which its proof is attained.75 So far as the present context is
concerned, three points may be made about the standard of proof. First, s 46 presumes that voice identiﬁcation evidence may be unreliable and a mistaken identiﬁcation may have grave consequences: it follows that the court must be
alert to that risk. Second, the section also presumes that voice identiﬁcation evidence may be accurate and a conviction founded upon it secure: it follows that, all other prerequisites having been met, the court should admit such evidence so long as it is reliable. Third, the section holds that reliability may be established through the circumstances of the identiﬁcation, leaving it to the
court to identify and evaluate those circumstances: it is by this means that the statutory objectives are to be reconciled. These three points together indicate

67    R v Robinson [2005] EWCA Crim 1940; Bulejcik, above n 60, at 394–395.
68    Flynn, above n 43, at [16]; and Bulejcik, above n 60, at 395.
69    Above.
70    Waipouri, above n 59, at 417.
71    Above.
72    R v Thomson-Wiari [2009] NZCA 562 at [18]–[19].
73    Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [112]
per Blanchard, Tipping and McGrath JJ.
74    This is sometimes justiﬁed by reference to the inherent seriousness of an allegation, its
consequences, or its inherent probability: Re H (Minors) [1996] AC 563, [1996] 1 All ER
1 (HL) per Lord Nicholls; but see In Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.
75    This paraphrases what Dixon J said in Briginshaw v Briginshaw [1938] HCA 34, [1938]
60 CLR 336 at 363: “The seriousness of an allegation made, the inherent unlikelihood of
an occurrence of a given description, or the gravity of the consequences ﬂowing from a
particular ﬁnding are considerations which must affect the answer to the question whether
the issue has been proved to the reasonable satisfaction of the tribunal.”

not that proof is invariably difficult but rather that the court should bear the evidential burden and risk of error in mind and scrutinise the circumstances as closely as may be necessary to satisfy itself of the identiﬁcation’s reliability before ruling it admissible.

What circumstances should guide judges when assessing reliability? 5 [72] Ms Epati urged us to adopt the “minimal safeguards” identiﬁed in R v Flynn.76 These we characterise as speciﬁc but incomplete procedures designed

to ensure that a witness is not led to identify a particular person and the identiﬁcation is properly documented: by way of example, the identifying officer should not be given a transcript on which another officer has written the 10 name of the person whom he or she believes to be the speaker. This is not the appropriate occasion on which to formulate formal procedures, the point of which is to make compliant identiﬁcations presumptively admissible and others

not. We note in passing that comprehensive guidelines for voice identiﬁcation parades were formulated by the Home Office in 2003,77 but they are voluntary 15 and it does not appear that English courts have insisted upon them.78

However, the authorities do point to circumstances that ought to be taken into account, to the extent relevant in any given case, when assessing voice recognition evidence:79

(a) the witness’s degree of familiarity with the person identiﬁed. As noted   20 earlier, there is evidence that familiar voices can be identiﬁed with a
high degree of accuracy;
(b) any identiﬁable properties of the voice that distinguish it from others; (c) the duration of the speech to be identiﬁed and anything about it that
might affect recognition, such as the manner in which the voice was   25 being used and its clarity for the witness;
(d) any delay between hearing the speech to be identiﬁed and making the identiﬁcation, and anything else that might affect the memory of the witness;
(e) the characteristics of any recorded speech used to make the   30 identiﬁcation and the quality of the recording;
(f) anything about the circumstances of the identiﬁcation that may create a psychological predisposition to identify a person selected by an investigator;
(g) whether any police procedure used to make the identiﬁcation has been   35 adequately documented;
(h) the witness’s ability to distinguish among voices;
(i) any hesitation in making the initial identiﬁcation;80
(j) anything else about the circumstances that bears upon reliability.

Above n 43, at [53].
Home Office Circular “Advice on the Use of Voice Identiﬁcation Parades” (21 December
2003) 057/2003.
Tamiz v R [2010] EWCA Crim 2638; R v Hall [2006] EWCA Crim 3401. Procedures were
also suggested in R v Harris (No 3) [1990] VR 310 (VSC) at 318; see also Ian
R Freckelton and Hugh Selby Expert Evidence: Law, Practice Procedure and Advocacy
(5th ed, Lawbook Company, Pyrmont (NSW), 2013) at [10.20.140].
See Harney v Police, above n 47, at [30]–[33], where the Supreme Court similarly
addressed the circumstances in which an informal visual identiﬁcation is admissible or a
formal one inadmissible.
An eyewitness who hesitates at length may be less accurate than one who reacts promptly:
Ormerod, above n 60, at 617.

The evidence of Detective Baker
[74] We have described the evidence of Detective Baker in general terms.81
In the District Court Judge Down found that he:82
...monitored on a regular and often daily basis the intercepted

communications during the live phase of the operation; he was the evidential transcriber and thereby was privy to a large amount of supplementary and circumstantial evidence around the context of conversations, the telephone numbers used, the name referred to in those conversations, and the general context of the conversations at a given point
in time.
[75] The Judge ruled that the officer’s identiﬁcation is admissible as expert evidence, reasoning that it was informed by “factors that are unique to his position as monitor and transcriber over an extended period of time, listening to hundreds if not thousands of conversations”. He relied on the officer’s
specialised knowledge of the entire body of intercepted communications, including the context and content of conversations and circumstantial evidence associating phone numbers with individuals. He evidently understood that many of these calls would otherwise have to be played to the jury, because he described as naïve and unrealistic the suggestion that the jury should make an
identiﬁcation for themselves by listening to the calls. For these reasons, he concluded that the officer’s evidence would be substantially helpful.
[76] We have noted that the Crown changed its stance in this Court. It no longer proposes to have Detective Baker name Mr Hohipa as the speaker on the two evidential calls. That identiﬁcation rested on the officer’s analysis of the
entire body of intercepted communications, which offers circumstantial support for the identiﬁcation. The Crown now proposes to have the officer say that the voice on those calls is the same voice speaking on other calls. That is a voice recognition identiﬁcation, and it rests not on the entire body of communications but on a small number of voice calls – nine, according to counsel – that are said
to involve Mr Hohipa. This being so, some of the Judge’s reasoning no longer holds good.
[77] Like the Judge, we accept that Detective Baker possesses specialised knowledge to the extent that he has studied the intercepted communications in greater depth than it would be practical for the jury to do. However, the
question is whether he possesses expertise of a kind that allows him to recognise the intercepted voices. His study of the intercepted communications is relevant only insofar as it qualiﬁes him to do that.
[78] The evidence in its present state does not suggest that the officer has sufficient familiarity with the voice he is to identify to qualify himself as an
expert. His statement also asserts that all voices are distinctive and unique but does not qualify the officer to offer that opinion, which cannot be derived from the evidence he has studied. The statement does not establish that he studied the relevant calls in depth: he will depose rather that he listened to “each conversation in its entirety, often several times...”.83 It identiﬁes no distinctive
property of Mr Hohipa’s voice.84 It tells us little about the intercepted voices

81 See [2] above.
82    Edwards, above n 1, at [34].
83    Compare the officer’s in-depth study of photographs of the appellants in R v Tipene, above
n 43.
84    The statement refers to “physical characteristics” without identifying them.

that he used for comparative purposes. It conveys the impression that he based his identiﬁcation primarily on circumstantial evidence and the use of names or other identifying details in some of the calls.

Nor is it apparent that the jury will gain substantial help from the officer’s opinion. As just noted, the evidence before us does not establish that 5 he has studied the relevant calls in depth, and they are few in number. We understand that the nine calls that are said to involve Mr Hohipa will all be played to the jury.
Mr Downs was rightly at pains to distinguish those parts of the officer’s evidence that amount to voice identiﬁcation from the rest. The distinction 10 matters because s 46 applies only to voice identiﬁcation evidence as deﬁned.
Counsel ﬁrst suggested that the officer’s evidence arguably is not strictly voice identiﬁcation evidence at all, because it falls short of an assertion that the person speaking was Mr Hohipa. We do not agree. Identiﬁcation evidence is an assertion “to the effect” that a voice was that of the defendant, and the deﬁnition 15 must be interpreted consistently with the legislative policy of attaching safeguards to evidence of that kind. Here the witness is to offer the opinion that

the same person is speaking on several different calls; that is, he will identify a voice. His opinion must rest on familiarity and characteristics of voice, so the

usual risks attend it. Those risks include overconﬁdence; as to that, we have 20 noted that the officer will assert that everyone’s voice is distinctive. And he is

to offer his opinion for the immediate purpose of identifying Mr Hohipa, who will be linked by circumstantial evidence to some of the calls upon which the officer bases his opinion. In these circumstances, we are satisﬁed that his opinion should be characterised as voice identiﬁcation evidence. 25 [82] Counsel next pointed out that not all of the officer’s evidence is voice identiﬁcation evidence as deﬁned: in particular, Detective Baker can by reference to circumstantial evidence attribute some communications to

Mr Hohipa. We agree. As Mr Downs submitted, there is no policy reason why

such evidence should be subject to a prima facie exclusionary rule; it gives rise 30 to none of the traditional concerns about voice identiﬁcation evidence. The evidence may also be substantially helpful to the jury to the extent that it rests

on in-depth study of intercepted communications.

However, Detective Baker’s voice identiﬁcation evidence is inadmissible. The record before us does not allow us to address all of the 35 considerations discussed at [73] above. But recognition evidence depends centrally upon familiarity, and for the reasons given at [78] above we do not accept that the officer is sufficiently familiar with the voice he purports to identify. In the result, it cannot be said either that the circumstances of his identiﬁcation render it reliable, for purposes of s 46, or that he is relevantly 40 qualiﬁed to offer an opinion as an expert ad hoc and able to assist the jury, for purposes of s 25.
Our conclusions rest on the evidence before us. It may be, having regard to the way in which the case was handled below, that we do not have a complete account of the circumstances of Detective Baker’s identiﬁcation. If 45 there is more to be said, the Crown may seek to persuade the trial Judge that his

voice identiﬁcation evidence is admissible.

The evidence of Detective Kirk
[85] We have described the evidence of Detective Kirk85 and characterised it as lay recognition evidence admissible, if at all, under ss 24 and 46. We highlight features of the identiﬁcation:

(a) It was based on very limited albeit recent acquaintance; Mr Hohipa spoke just 49 words.
(b) It is not suggested that Mr Hohipa’s voice exhibits some identiﬁable and distinctive quality.
(c) Four calls were used to make the identiﬁcation.
(d) All the calls featured the voice attributed to Mr Hohipa.
(e) No attempt was made to exclude any psychological predisposition to
identify the voice selected and played by Detective Baker, himself an identiﬁcation witness.
(f) On the contrary, the procedure contained a powerful hint. In the ﬁrst
three calls the speaker targeted by Detective Baker was addressed by
Mr Hohipa’s forename.
[86] The Judge held that the evidence was admissible. He reasoned that it is “common practice in interception cases for officers who have been involved, on a one on one basis with a defendant, to attempt to make a voice identiﬁcation”.
He held that it is for the jury to decide what weight ought to be attached to the identiﬁcation and emphasised that the officer could be cross-examined about the circumstances of the identiﬁcation.
[87] Ms Epati argued that the Judge failed to confront the s 46 threshold. We agree, to the extent that he reasoned that reliability is a jury question. As we
have explained, a Judge must satisfy himself or herself that the circumstances produced a reliable identiﬁcation: only then does reliability become a jury question.
[88] Ms Epati also argued that the Judge was wrong, insofar as he reasoned that the circumstances produced a reliable identiﬁcation. We agree: Detective
Kirk did not have sufficient exposure to Mr Hohipa’s apparently unremarkable voice to make a reliable identiﬁcation; the recency of his acquaintance may have aided his memory but could not compensate sufficiently for his unfamiliarity; and the procedure employed was calculated to ensure that he identiﬁed the person selected for him by Detective Baker. The identiﬁcation is
positively unreliable. The voice identiﬁcation evidence of Detective Kirk is inadmissible.
[89] In the result, we have concluded that the voice identiﬁcation evidence of both officers should be excluded. Voice recognition rests on familiarity and, absent something remarkable about the voice or the circumstances, a reliable
identiﬁcation normally calls for closer acquaintance than either officer possessed.86
[90] We make one ﬁnal point, motivated by the Judge’s observation that identiﬁcations of this kind are commonplace in interception cases. Voice recognition evidence offered by investigating officers should be examined with
care. People vary in their ability to distinguish among voices, but there is no reason to suppose that police officers as a class are more capable than others. Nor is there any reason to suppose that they are less exposed, or less

85 See [3] above.
86 See by analogy Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145 at [74].

susceptible, to psychological predisposition to name a person of interest: the converse may be true.87 While we cannot establish presumptively reliable identiﬁcation procedures, we can say that any procedure employed must not inﬂuence the officer to identify a given person. It should also be adequately documented. 5

Decision

The appeal is allowed. The proposed voice identiﬁcation evidence of Detectives Baker and Kirk is inadmissible at Mr Hohipa’s trial. The Crown may revisit the admissibility of Detective Baker’s evidence at trial should the

evidence about the circumstances of his identiﬁcation change. 10 [92] For fair trial reasons, we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media

or on the internet or other publicly available database until ﬁnal disposition of trial. Publication in law report or law digest permitted.

ELLEN FRANCE P. 15 [93] I write separately on one aspect of the judgment of Miller J, namely, the discussion of the standard of proof in s 46 of the Act.88 Miller J notes the standard of balance of probabilities is sometimes described as ﬂexible and that

“the nature of an allegation may determine the process by which its proof is attained”.89 20 [94] On its face, the statement seems unexceptional. However, when read together with the references to Z v Dental Complaints Assessment Committee90

and to Briginshaw v Briginshaw,91 it may be seen as suggesting that in the context of the Act the standard of balance of probabilities may vary. I do not

agree and do not see that line of authority as relevant. 25 [95] The issue under the Act is reliability and admissibility. There is no allegation being made.

The standard of balance of probabilities is used elsewhere in the Act, in s 28 dealing with the reliability of a defendant’s statement and in s 30 requiring a Judge to make a ﬁnding on the balance of probabilities as to 30 whether evidence was improperly obtained. The standard in these sections contrasts with the use of the standard of beyond reasonable doubt in other sections.92 In particular there is an obvious contrast with s 45, dealing with visual identiﬁcation evidence, which uses the standard of beyond reasonable doubt. These are well known standards. I see no reason to suggest any gloss is 35 needed on their interpretation or application here. I am not aware of any difficulties in the interpretation of the standard of balance of probabilities in this context.
I otherwise agree with the reasoning and outcome in the judgment of

Miller J. 40

In O’Doherty, above n 44, the Court referred to but did not expressly adopt expert evidence that police officers may be more susceptible than other witnesses to psychological predisposition. See in particular at [5] and [54].
At [71].
At [71].
Dental Complaints Assessment Committee, above n 73.
Briginshaw, above n 75.
Evidence Ac, s 29(2) (exclusion of statements inﬂuenced by oppression) and 45
(admissibility of visual identiﬁcation evidence).

Orders
(A) Leave to appeal is granted.
(B) The appeal is allowed. The proposed voice identiﬁcation evidence of
Detectives Baker and Kirk is inadmissible at Mr Hohipa’s trial. The

Crown may revisit the admissibility of Detective Baker’s evidence at trial if the evidence about the circumstances of his identiﬁcation should change.
(C)Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or
other publicly available database until ﬁnal disposition of trial.
Publication in law report or law digest permitted.
Solicitors for the appellant: Rishworth Wall and Mathieson (Gisborne). Solicitors for the respondent: Crown Law Offıce (Wellington).
Reported by: David McCaskill, Barrister

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Citations

Hohipa v R [2015] NZCA 73

Most Recent Citation

Lelei v Police [2015] NZHC 2110

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[2015] NZCA 73

18 March 2015