Citation: Regina v Leung and Wong [1999] NSWCCA 287
Court: Court of Criminal Appeal, New South Wales
Date: 15 September 1999
Judge(s): Spigelman CJ, Simpson J, Sperling J
Background
Two appellants were convicted in the District Court after a joint trial on a charge of being knowingly concerned in the importation of a commercial quantity of heroin into Australia, contrary to s 233B of the Customs Act 1901. The heroin, totalling approximately 9.35 kg pure, had been concealed inside marble pedestals shipped from Bangkok to Adelaide. Police intercepted the shipment, replaced the heroin with a plaster of paris substitute, and installed covert audio and video recording equipment before allowing the pedestals to be collected and transported to a house in Cherrybrook, Sydney. Both appellants were arrested at those premises when police executed a search warrant.
Central to the Crown case were two sets of tape recordings: recordings made by the covert devices hidden inside the pedestals (the "DAT tapes"), which captured a conversation in Chinese languages among the persons in the garage, and separate recordings of police conversations with each appellant (the "police tapes"). A professional interpreter, retained by the Australian Federal Police, translated the DAT tapes and identified three distinct voices, designating them M1, M2 and M3. He then compared those voices with the police tapes to attribute each designated voice to one of the two appellants.
One appellant (Leung) did not give evidence at trial. The other (Wong) gave sworn evidence and confirmed he had been present in the garage at least for a period. Each appellant was sentenced to twelve years' imprisonment with a non-parole period of seven years, commencing from the date of arrest.
Legal Issues
- Whether the interpreter's voice identification and voice comparison evidence was admissible, specifically whether it was properly admitted as opinion evidence under s 79 of the Evidence Act 1995 (and whether s 78 also applied).
- Whether the directions given by the trial judge to the jury regarding Leung's failure to give evidence were appropriate.
- Whether the grounds of appeal advanced on Leung's behalf could also sustain Wong's appeal against conviction.
Decision
Voice identification evidence (Grounds 1 and 2 for Leung)
Simpson J, with whom Sperling J agreed, held that the interpreter's voice comparison evidence was admissible and properly admitted under s 79 of the Evidence Act 1995. That section permits a person with specialised knowledge to give opinion evidence based on that knowledge. The court accepted that the interpreter possessed sufficient expertise from his professional experience to make the voice comparison, and that his evidence fell within the s 79 framework. Whether s 78 (which addresses lay opinion evidence) also applied was expressly left open by both Spigelman CJ and Sperling J, who reserved their positions on its scope and effect in relation to voice identification.
The court also considered whether, even if any error had occurred in admitting the evidence, a proviso applied. Simpson J noted that the voice comparison evidence, while significant, overlapped with other incriminating evidence, including Leung's recorded conversations with police and his presence at the premises. The court concluded that, taken as a whole, the remaining evidence was sufficiently strong that no substantial miscarriage of justice would have resulted.
Silence direction (Ground 3 for Leung)
Simpson J found that the trial judge gave appropriate directions to the jury about Leung's failure to give evidence. The directions properly acknowledged the limits of what could be drawn from silence, while permitting the jury to consider that Leung was the only person who could have given direct evidence about his own knowledge of what was occurring in the garage. The court found the directions included the necessary caution and safeguards, and the ground failed.
Wong's appeal
Wong appeared unrepresented and sought to rely on Leung's grounds of appeal. The court found this approach was largely misconceived. The silence direction was plainly inapplicable because Wong had given sworn evidence. As to the voice identification grounds, the court's rejection of those grounds on the merits meant they provided no assistance to Wong either. The court observed that Wong had in any event confirmed his own presence in the garage during his evidence. Both appeals against conviction were dismissed.
Orders Made
- Both appeals against conviction dismissed.
Key Takeaways
- Under s 79 of the Evidence Act 1995, opinion evidence from a person with relevant specialised knowledge is admissible; the Court of Criminal Appeal confirmed that a professional interpreter with appropriate expertise may give voice comparison evidence on that basis.
- The scope and effect of s 78 of the Evidence Act 1995 in relation to voice identification and voice comparison evidence was expressly reserved by Spigelman CJ and Sperling J, leaving that question open for future determination.
- A trial judge may direct a jury to consider a defendant's failure to give evidence where that defendant was the only person capable of giving direct evidence about their own knowledge, provided appropriate caution and safeguards are included in the direction.
- In dismissing the appeals, the court confirmed that a co-accused who appears unrepresented cannot simply adopt another party's grounds of appeal where those grounds are not applicable to their own circumstances, particularly where the factual basis differs.
- No miscarriage of justice arose from admission of the voice comparison evidence where other independent incriminating evidence, including police recordings and the appellant's physical presence at the scene, strongly supported the convictions.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
Cases
- R v Smith [1983] NSWLR 462; (1986) 7 NSWLR 444
- Bulejcik v R (1996) 185 CLR 375
- R v Menzies [1982] 1 NSWLR 40
- R v Butera (1987) 164 CLR 180
- R v Eastman (1997) 158 ALR 107
- R v Cassar and Cleiman [1999] NSWSC 436 (unreported)
- Weissensteiner v R (1993) 178 CLR 217
- R v O G D (1997) 98 A Crim R
- Jones v Dunkel (1959) 101 CLR 298