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Court of Criminal Appeal 19 December 2001

Regina v V Camilleri

[2001] NSWCCA 527

Also reported as 127 A Crim R 290
Drugs
CIRCUMSTANTIAL EVIDENCE DIRECTION VOICE IDENTIFICATION WARNING

Citation: Regina v V Camilleri [2001] NSWCCA 527
Court: NSW Court of Criminal Appeal
Date: 19 December 2001
Judge(s): Meagher JA, Dowd J, Kirby J (Kirby J wrote the leading judgment; Meagher JA and Dowd J agreed)

Background

The appellant was convicted in the District Court on one count of knowingly taking part in the supply of cannabis leaf, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The alleged offending occurred between May and December 1997. The jury could not reach a verdict on a second count relating to the supply of ecstasy.

The Crown's case rested heavily on listening device recordings obtained during surveillance of a suspected drug dealer's home in Clovelly. A person referred to as "Victor" on those recordings was alleged by the Crown to be the appellant. The Crown also relied on circumstantial evidence of association, including address book entries, telephone records, video surveillance footage, and a police observation placing the appellant near the surveilled premises.

The central factual question at trial was whether the voice captured on the recordings was indeed the appellant's. A detective who had interacted with the appellant during a home search and interview gave identification evidence to that effect. The appellant did not give evidence, but through counsel acknowledged knowing the relevant dealer and conceded that one recorded conversation was his, while disputing that the other relevant recordings captured his voice.

  • Whether the trial judge's direction on circumstantial evidence was adequate and correct in law
  • Whether the trial judge's direction concerning the detective's failure to be cross-examined on voice identification was erroneous
  • Whether the jury was adequately warned about the dangers and limitations of voice identification evidence
  • Whether prejudicial material about the appellant's status as a prisoner on work release caused the trial to miscarry
  • Whether evidence relating to a search of the appellant's home, including a reference to cannabis resin, was properly admitted and adequately addressed by direction

Decision

Circumstantial evidence direction (Ground 1): The Court found that the trial judge's direction on circumstantial evidence was deficient in two respects. First, the direction failed to instruct the jury that each fact relied upon as a circumstance must itself be proved beyond reasonable doubt before it could be used as a strand in the inferential chain. Second, the direction employed the traditional "Hodge's Case" formulation, which requires that guilt be the only rational inference available, without making clear how that formulation sits alongside the reasonable doubt standard. The Court acknowledged that this was not a typical circumstantial case, since it substantially turned on direct identification evidence, but because the judge chose to give a circumstantial direction, its terms needed to be correct.

Voice identification warning (Grounds 2 and 3): The Court held that the trial judge's direction on the detective's failure to be cross-examined on voice identification was problematic. The direction suggested the jury could draw an adverse inference against the appellant from the fact that the detective's identification was not challenged in cross-examination. The Court was critical of this approach, emphasising that considerable circumspection is required before drawing inferences from a party's conduct of cross-examination. More significantly, the Court found the voice identification warning inadequate. The direction given by the trial judge did not address the specific matters bearing on the reliability of the detective's identification, including the limited and particular circumstances in which he had heard the appellant's voice, the difference between those circumstances and normal voice identification, and the absence of any formal identification procedure.

Work release evidence (Ground 4): The Court found that evidence given by a witness explaining the difference between work release and periodic detention communicated to the jury that the appellant was a long-term prisoner. That was prejudicial. While the Court did not conclusively resolve whether a discharge should have been granted, it noted that steps should be taken at any retrial to prevent that information reaching the jury in that form.

Search evidence (Ground 5): The Court accepted that evidence of the exchange between the detective and the appellant during the home search was relevant to establishing the detective's familiarity with the appellant's voice. Although prejudicial, its probative value was not outweighed by that prejudice. However, the Court found no relevance in evidence that a small quantity of cannabis resin had been found during the same search, and indicated the Crown should consider excluding that material at any retrial.

Orders Made

  • The appeal is upheld.
  • The conviction on Count 1 is quashed and the sentence set aside.
  • There should be a new trial.

Key Takeaways

  • Where a trial judge elects to give a circumstantial evidence direction, its terms must be accurate: the jury must be told that each circumstantial fact requires proof beyond reasonable doubt, and the direction must correctly explain how the inferential standard operates.

  • A voice identification warning must go beyond generic caution and address the specific factors affecting the reliability of the particular identification in evidence, including the conditions under which the identifier became familiar with the voice and the absence of any formal identification procedure.

  • Considerable circumspection is required before a jury is directed that it may draw an adverse inference from the failure of defence counsel to cross-examine a witness on a particular point; the Court of Criminal Appeal treated this as a source of potential error warranting close scrutiny.

  • Where evidence of a defendant's status as a prisoner inadvertently communicates that the defendant is a long-term offender, that carries a real risk of prejudice requiring careful management by the Crown and the trial court.

  • Evidence of a substance found during a search may be admissible where it has genuine probative value (such as establishing a witness's familiarity with the defendant's voice), but evidence of a separately seized prohibited substance with no clear relevance to the charges should be scrutinised carefully given its prejudicial potential.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), s 137

Cases:
- Grant v The Queen (1975) 11 ALR 503
- Shepherd v The Queen (1990) 170 CLR 573
- R v Hodge (1838) 2 Lewin CC 227
- Green v The Queen (1971) 126 CLR 28
- Peacock v The King (1911) 13 CLR 619
- Plomp v The Queen (1963) 110 CLR 234
- Martin v Osborne (1936) 55 CLR 367
- Knight v The Queen (1992) 175 CLR 495
- Domican v The Queen (1992) 173 CLR 555
- R v Birks (1990) 19 NSWLR 677
- Abdallah v The Queen [2001] NSWCCA 506
- R v Manunta (1989) 54 SASR 17