Citation: Li v Regina; Regina v Li [2003] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 23 October 2003
Judge(s): Ipp JA; Whealy J; Howie J
Background
The appellant was convicted by jury in the District Court of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to the Customs Act 1901 (Cth). Shadbolt DCJ sentenced him to 12 years imprisonment with a non-parole period of 9 years. The prosecution case relied substantially on intercepted telephone conversations and surveillance materials.
The appellant appealed against his conviction on multiple grounds, challenging the admissibility of expert voice similarity evidence tendered by three witnesses, the adequacy of jury warnings on that evidence, and the admissibility and handling of visual identification evidence given by a detective. The Crown separately appealed against the sentence as manifestly inadequate.
The Court of Criminal Appeal heard both appeals together, with Ipp JA delivering the leading judgment and Whealy J and Howie J agreeing.
Legal Issues
- Whether expert voice similarity evidence from three witnesses (Mr Stephen Chan, Sergeant Tat Lee, and Dr John Peter Gibbons) was admissible, including where the jury could have made voice comparisons itself
- Whether a risk of bias in an expert witness renders that expert's evidence inadmissible
- Whether Shadbolt DCJ gave adequate warnings to the jury on the dangers of voice identification evidence
- Whether a detective's visual identification evidence from surveillance materials was admissible
- Whether adequate warnings were given to the jury on the dangers of visual identification evidence
- Whether any cumulative errors caused a miscarriage of justice
- Whether the original sentence of 12 years was manifestly inadequate given the appellant's role as a directing mind of the importation enterprise
Decision
Voice similarity evidence: The Court dismissed all three grounds challenging expert voice similarity evidence. Evidence of ad hoc expertise is admissible even where the jury could theoretically make the comparison itself, relying on R v Butera and R v Leung. The Court further confirmed that it was appropriate for the jury to hear identification evidence from a person who understood the words spoken in the relevant language. Arguments about the weight of each expert's evidence, including cross-lingual comparisons raised in relation to Dr Gibbons, were matters for the jury rather than admissibility objections. The trial judge's jury warnings on voice identification were found to be more than adequate.
Bias of expert evidence: The Court confirmed that a risk of bias does not render expert evidence inadmissible. Concerns about partiality go to the weight the jury assigns the evidence, not to whether it should be heard at all.
Visual identification evidence: Detective Watson's evidence was admissible because it went to an identifying feature not apparent merely from observing the accused at trial, satisfying the test in Smith v The Queen (2001) 206 CLR 650. No relevant prejudice arose from the detective's disclosure of surveillance activities. The trial judge had also given the jury the required warnings under s 165(2) of the Evidence Act 1995 on more than one occasion. With all individual grounds rejected, the cumulative miscarriage ground necessarily failed.
Crown appeal on sentence: The Court upheld the Crown's appeal. The appropriate starting point for sentence should not have been less than 30 years, given the appellant's role as a directing mind of the criminal enterprise. The 25% discount granted for assistance to authorities was found to be over-generous, as an Australian Federal Police officer had described the assistance as selective, of minimal practical value, and never having led to seizures or arrests. Taking into account sentences imposed on co-offenders and the nature of a Crown appeal, the Court re-sentenced the appellant to 15 years imprisonment with a non-parole period of 11 years 3 months.
Orders Made
- Appeal against conviction dismissed.
- Crown appeal against sentence upheld.
- Sentences imposed by Shadbolt DCJ set aside; in lieu, a head sentence of 15 years imprisonment with a non-parole period of 11 years 3 months imposed, commencing 25 August 2001, with the head sentence expiring 24 August 2016 and the non-parole period expiring 24 November 2012.
Key Takeaways
- Expert voice similarity evidence is admissible even where the jury could itself compare the recordings, because ad hoc expertise is a recognised category of admissible opinion evidence under the Evidence Act 1995.
- A risk of bias in an expert witness is not a basis for excluding that evidence; it goes to weight and is a matter for the jury to assess.
- Under s 165(2) of the Evidence Act 1995, warnings about the dangers of visual identification evidence must be given to the jury, but the Court of Criminal Appeal confirmed that the trial judge satisfied this requirement by issuing warnings on multiple occasions.
- In dismissing the conviction appeal, the Court reaffirmed that alleged deficiencies going to the weight rather than the admissibility of evidence do not provide grounds for excluding it or for finding a miscarriage of justice.
- Where an offender is convicted as a directing mind of a commercial drug importation enterprise, the starting point for sentence must fully reflect that degree of criminality; a discount for assistance to authorities will not be treated as generous where the assistance was described as selective and of minimal practical value.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d); s 235
- Evidence Act 1995 (NSW), ss 76, 79, 114(1), 137, 165(2)
Cases:
- Smith v The Queen (2001) 206 CLR 650
- R v Butera (1987) 164 CLR 180
- R v Leung (1999) 47 NSWLR 405
- R v Adler (2000) 116 A Crim R 38
- R v Chan [2002] NSWCCA 217
- FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
- Collins Thomson v Clayton [2002] NSWSC 366
- Kirch Communications Pty Ltd v Gee Engineering Pty Ltd [2002] NSWSC 485
- R v Menzies [1982] 1 NZLR 40