AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 23 August 2000

R v Adler

[2000] NSWCCA 357

Also reported as (2001) 52 NSWLR 451 [2000] 116 A Crim R 38
Fraud & dishonesty
CRIMINAL LAW REFUSAL OF PERMANENT STAY NO THRESHOLD TEST

Citation: R v Adler [2000] NSWCCA 357
Court: New South Wales Court of Criminal Appeal
Date: 23 August 2000
Judge(s): Heydon JA; Smart AJ; Ireland AJ

Background

The applicant, George Adler, was facing trial on 12 counts of dishonestly obtaining cheques by deception. The Crown alleged that, while an inmate at a remand centre, he made a series of telephone calls to a travel agent impersonating a legitimate investment opportunity involving a company called Natfibre, inducing the travel agent to transfer funds.

The Crown's key identification evidence came from the travel agent, Mrs Konsuo, who asserted she recognised the caller's voice as that of the applicant. She had dealt with the applicant face-to-face on multiple occasions in 1992 and 1993, giving her prior familiarity with his voice. Although the caller also identified himself by name, she maintained, under persistent cross-examination, that she independently recognised his voice.

The applicant sought leave to appeal against two rulings made by Shadbolt DCJ in the District Court following a voir dire: first, the decision to admit Mrs Konsuo's voice identification evidence, and second, the refusal to permanently stay the proceedings.

  • Whether voice identification evidence is subject to a threshold admissibility test derived from the pre-Evidence Act common law (principally the R v Smith line of authority in New South Wales)
  • Whether the Evidence Act 1995 (NSW) displaced that common law threshold requirement for voice identification evidence
  • Whether the trial should be permanently stayed on the basis that the prosecution was bound to fail

Decision

Shadbolt DCJ had reviewed the pre-existing common law, which in New South Wales had imposed threshold requirements for the admission of voice identification evidence, before turning to the Evidence Act 1995. The judge concluded that the Act clearly altered the common law position by providing for the reception of voice identification evidence without any threshold considerations, while preserving a judicial discretion to exclude evidence under sections 135 and 137.

The Court of Criminal Appeal agreed with that analysis. The definition of "identification evidence" in the dictionary to the Act explicitly encompasses aural identification (via the words "visually, aurally or otherwise"). The Act contains specific threshold requirements for visual identification evidence (section 114) and picture identification evidence (section 115), but no equivalent threshold for other forms of identification, including voice identification. The Court of Criminal Appeal held that this structural contrast constituted sufficiently explicit legislative language to displace the common law threshold test.

The Court also addressed three cases raised by the applicant's solicitor as support for continuing the R v Smith approach. In each instance, the court found that neither Cassar, Colebrook, nor Leung had resolved the point: in Cassar the R v Smith test was assumed without argument, in Colebrook the appellant was unrepresented and the Crown's argument was not advanced, and in Leung Simpson J had expressly reserved the question.

On the permanent stay application, the Court noted that once the identification evidence was admitted, the prosecution could not be said to be bound to fail. That ground for a stay therefore did not exist, and the application was refused.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • Under the Evidence Act 1995 (NSW), voice identification evidence is not subject to any common law threshold admissibility test derived from the R v Smith line of authority. The Act governs the question.
  • The structural contrast in the Act is significant: sections 114 and 115 impose specific threshold requirements for visual and picture identification, but no equivalent provision applies to aural or other forms of identification evidence.
  • Where voice identification evidence is admitted under the Act, residual exclusionary discretions under sections 135 and 137 remain available.
  • Prior familiarity with a speaker's voice, even if acquired some years earlier, can provide a sufficient basis for admissibility of identification evidence. Challenges to reliability go to weight, not admissibility.
  • Refusing the permanent stay, the Court confirmed that a stay on the ground that the prosecution is bound to fail cannot succeed where admissible identification evidence remains before the court.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), including the dictionary definition of "identification evidence", ss 55, 114, 115, 116, 135, 137
- Criminal Appeal Act 1912 (NSW), s 5F

Cases Cited
- R v Smith (1984) 1 NSWLR 463
- R v Brownlowe (1987) 7 NSWLR 461
- R v Brotherton (1993) 29 NSWLR 95
- United States v Cerone 830 Fed Rep 2nd Series 938 (8th Cir, 1987)
- R v Hentshel (1988) VR 362
- R v Harris (No 3) (1990) VR 310
- R v Miladinovic (1992) 60 ACR 206
- Bulejcik v The Queen (1996) 185 CLR 375
- R v Cassar [1999] NSWSC 321
- R v Colebrook (1999) NSWCCA 262
- R v Leung (1998-99) 47 NSWLR 404