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Court of Criminal Appeal 16 December 2003

REGINA v. GAO

[2003] NSWCCA 390

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION SENTENCE VOICE IDENTIFICATION POLICE OFFICER HEARS CALLS HELD EVIDENCE RIGHTLY ADMITTED

Citation: Regina v Gao [2003] NSWCCA 390
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2003
Judges: Sully J, Greg James J, Adams J

Background

The appellant was convicted in the District Court of New South Wales of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). A jury found him guilty following a trial before Judge Shillington. He was sentenced to 12 years imprisonment with a non-parole period of eight years, commencing from the date of his arrest in May 2001.

The Crown's case rested on a combination of surveillance, intercepted telecommunications, and the identification of the appellant's voice. Investigators had lawfully intercepted phone calls between the appellant and a co-accused, Lo, during which an unidentified male (later said to be the appellant) coordinated the receipt of a courier package containing approximately 3.48 kilograms of heroin with an estimated street value exceeding three million dollars.

The central evidentiary dispute at trial concerned voice identification. A police officer who had listened to the intercepted phone calls in Cantonese later participated in a police interview of the appellant, during which the appellant was spoken to in Cantonese. Based on his hearing of the appellant's Cantonese speech at that interview, the officer identified him as the voice on the intercepted calls. Defence counsel objected to the admissibility of that evidence both at trial and on appeal.

  • Whether the voice identification evidence obtained during the police interview was properly admitted at trial.
  • Whether there was any impropriety in the circumstances in which the appellant's Cantonese speech was obtained during the interview, given that he had declined to answer questions.
  • Whether vocal sounds constitute a "representation" for the purposes of the evidence rules.
  • Whether the absence of a recording of the interview meant the voice identification evidence was inadmissible.
  • Whether the sentence of 12 years with an eight-year non-parole period was appropriate and open to challenge.

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. The court found that the voice identification evidence had been rightly admitted. The police officer had lawfully heard the appellant speak Cantonese during the interview and was entitled to use that experience to identify the voice on the previously intercepted calls. No procedural impropriety was established in how that speech was obtained.

The court addressed the argument that the appellant's responses during the interview, in circumstances where he had declined to answer questions, should not have been used against him. This argument was rejected. The court found that vocal sounds are not a "representation" in the relevant legal sense, which meant the rules governing representations did not apply to prevent the evidence being used for identification purposes.

The court also rejected the contention that a recording of the interview was a legal prerequisite to admissibility. There was no rule requiring that the voice identification evidence be supported by or derived from a recording, and no such necessity could be established.

On sentence, Greg James J, with whom Sully J and Adams J agreed, noted that the circumstantial case against the appellant, leaving aside the voice identification issue altogether, was "entirely overwhelming." The judge observed that the quantity of heroin involved and the apparent intention to establish an ongoing importation arrangement made the sentence, in his view, "entirely lenient." The court found no error in law or principle and no basis to interfere with the sentence.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that voice identification evidence based on a police officer's direct auditory comparison between intercepted calls and a suspect's speech at a police interview is admissible, even where the interview was conducted partly in a language other than English (here, Cantonese).
  • Vocal sounds produced during a police interview do not constitute a "representation" for evidentiary purposes, which means the protections that apply to representational evidence do not shield such sounds from use in voice identification.
  • No impropriety was found where the appellant's Cantonese speech was captured during an interview in which he otherwise declined to answer questions. The fact that he refused to respond to substantive questions did not make the voice evidence obtained in that context inadmissible.
  • Admissibility of voice identification evidence does not depend on the existence of a recording of the relevant interview. The absence of a recording does not create a legal bar to the evidence being tendered.
  • In dismissing the sentence appeal, the court noted that a sentencing judge is not required to differentiate between co-offenders where the evidence does not establish a material difference in culpability, and a decision not to distinguish between them discloses no error in law or principle.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Crimes Act 1914 (Cth), s 16A

Cases:
- Mundarra Smith [2001] HCA 50
- Leong (1999) 47 NSWLR 405