Citation: Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 11) [1999] NSWSC 321
Court: Supreme Court of New South Wales, Criminal Division
Date: 14 April 1999
Judge(s): Sperling J
Background
Three accused persons faced criminal proceedings arising from activities recorded via listening device and telephone intercept at a residential flat in Merrylands. The Crown sought to tender recordings of those conversations in evidence against two of the accused, Sleiman and Cassar, and needed to establish that their voices were among those captured on the recordings.
One accused, Cassar, conceded through counsel that her voice appeared in the recordings as alleged by the Crown. Sleiman disputed that the voices were those of either himself or Cassar. The admissibility of the voice identification evidence was therefore the central question requiring resolution.
This judgment (the eleventh in the series of rulings in the trial) dealt with a voir dire (a preliminary hearing to test admissibility) on whether the Crown's proposed evidence identifying the voices of Sleiman and Cassar in the recordings should be placed before the jury.
Legal Issues
- Whether lay witness evidence of voice identification from covertly recorded conversations was admissible, given that the identifying witnesses had not been previously familiar with the accused's voice before the events in question
- Whether the proposed voice identification evidence met the legal threshold of "distinctive characteristics" required where a witness lacks prior familiarity with a voice
- Whether voice identification evidence is only admissible if supported by expert testimony
- Whether the evidence should be excluded under sections 135 or 137 of the Evidence Act 1995 (this question was deferred and not resolved in this ruling)
Decision
Sperling J surveyed the established NSW case law on voice identification evidence. Drawing on Smith (1987) and Brownlowe (1987), his Honour confirmed that, where a witness had no prior familiarity with a voice, the voice must have had very distinctive characteristics, assessed by reference to both its intrinsic qualities and the circumstances of its use, sufficient to leave an indelible mental impression. This threshold did not apply where the witness already knew the voice before the relevant events.
On the facts, the Crown's evidence came from multiple sources. Detective Sergeant McNab listened to hours of recorded conversations before meeting Sleiman in person at the execution of search warrants on two separate occasions, where Sleiman spoke and was video-recorded. McNab identified the voices as the same. A second witness, Rizk, was already familiar with Sleiman's voice from prior acquaintance and identified Sleiman as a party in a recorded telephone conversation. Sperling J was satisfied that, taken together with corroborating circumstances (persons using the first names "Emad" and "Leanne" in the flat, conformity between entry and exit times for the flat and times of conversations, and the flat being leased in Sleiman's sister's name), the evidence met the relevant threshold for admissibility.
On the question of expert evidence, Sperling J rejected the submission that lay voice identification evidence is inadmissible in the absence of expert testimony. Referring to Bulejcik (1996), where Toohey and Gaudron JJ had noted that expert evidence is unnecessary in voice comparison cases, his Honour held that the existence of scientific expertise on voice analysis does not render lay opinion evidence inadmissible.
The question of potential exclusion under sections 135 and 137 of the Evidence Act 1995 was deferred for further argument and was not determined in this ruling.
Orders Made
The court ruled the following evidence admissible:
- The tapes of the recorded conversations and their transcripts
- Witness statements tendered on the voir dire
- The conversation log
- Videos of the execution of search warrants on 11 December 1997 and 8 January 1998
- Evidence of the opening and closing of the flat door and the commencement and termination of conversations, in conformity with entries and exits by Sleiman and Cassar to or from the building
- Evidence from Cassar's mother and sister authenticating some of the recorded conversations involving Cassar
The ruling was subject to the qualification that potential exclusion under sections 135 and 137 of the Evidence Act 1995 remained to be argued.
Key Takeaways
- Where a witness had no prior familiarity with a voice, NSW case law requires that the voice must have possessed very distinctive characteristics, both intrinsic and as used in context, sufficient to leave an indelible mental impression before identification evidence will be admitted.
- Prior familiarity with a voice removes the need to satisfy the distinctive characteristics threshold, meaning a witness who knew the accused before the events may give voice identification evidence on that basis alone.
- The existence of scientific expertise in voice analysis does not render lay voice identification evidence inadmissible; expert evidence is not a precondition to admissibility in cases of lay voice recognition.
- Corroborating evidence, including contextual matters such as the use of first names in recorded conversations, conformity of entry and exit times, and the circumstances of the premises, can form part of the overall foundation supporting admissibility of voice identification evidence.
- Sperling J expressly deferred the question of discretionary exclusion under sections 135 and 137 of the Evidence Act 1995, so that aspect of the admissibility contest remained live at the time of this ruling.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 135 and 137
Cases
- Smith [1984] 1 NSWLR 462 (trial judgment)
- Smith (1987) 7 NSWLR 444 (Court of Criminal Appeal)
- Brownlowe (1987) 7 NSWLR 461
- Brotherton (1992) 29 NSWLR 95
- Bulejcik (1996) 135 ALR 517
- Heuston (CCA (NSW), 20 June 1995, unreported)
- Gilmore (1977) 2 NSWLR 935 (referred to on expert evidence)