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Court of Criminal Appeal 6 February 2003

Regina v Riscuta and Niga

[2003] NSWCCA 6

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION LEAVE TO APPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG HEROIN INTERCEPTED TELEPHONE CONVERSATIONS

Citation: Regina v Riscuta and Niga [2003] NSWCCA 6
Court: Court of Criminal Appeal, New South Wales
Date: 6 February 2003
Judge(s): Heydon JA; Hulme J; Carruthers AJ

Background

Two appellants were convicted by a District Court jury after an eleven-day trial of conspiring to supply heroin between approximately 20 and 24 November 1994. The Crown case was that the appellants coordinated, via telephone, the handover of approximately 193 grams of heroin to a third party for delivery interstate. A male appellant was also convicted on an alternative charge of supplying heroin on 23 November 1994.

The trial judge sentenced the female appellant to six years' imprisonment with a non-parole period of four years and six months, and the male appellant to eight years with a non-parole period of six years. Both convictions rested substantially on evidence drawn from intercepted telephone conversations conducted in Romanian, and on voice identification evidence placing each appellant as a participant in those conversations.

Both appellants appealed against conviction and sought leave to appeal against sentence. The arguments on appeal were run by counsel who had not appeared at trial.

  • Whether the voice identification evidence of a translator witness (who had heard the female appellant's voice once in 1993 and then identified it on tapes recorded in 1994) was admissible under the Evidence Act 1995
  • Whether the trial judge gave adequate directions to the jury regarding the voice identification evidence, including the risk of overconfidence in the witness
  • Whether the trial judge's summing-up was otherwise satisfactory, including on the Jones v Dunkel principle (which concerns inferences available where a party fails to call a witness whose evidence would be expected)
  • Whether the verdicts were perverse
  • Whether the execution of a search warrant at night was lawful
  • Whether, even if any errors existed, the proviso to s 6(1) of the Criminal Appeal Act 1912 applied so that no substantial miscarriage of justice had actually occurred
  • Whether the sentences were manifestly excessive or otherwise warranted appellate intervention, including whether special circumstances justified reducing the non-parole periods

Decision

Admissibility of voice identification evidence

The Court examined whether the translator's identification of the female appellant's voice on the 1994 tapes was relevant and admissible. The witness had spent approximately half an hour in the same room as the female appellant during a 1993 interview at the NSW Crime Commission. The Court considered the requirements of s 55(1) of the Evidence Act 1995 (relevance) and s 116 (identification evidence), as well as s 137 (exclusion where probative value is outweighed by unfair prejudice). The Court found the evidence was properly admitted and did not amount to unfair prejudice simply because the witness had prior familiarity with the voice.

Directions on voice identification

The Court considered whether the trial judge's directions adequately warned the jury of the risks associated with voice identification evidence, including the danger that a witness may be overconfident in their ability to identify a voice from limited prior exposure. The Court found the directions given were adequate in the circumstances and did not constitute reversible error.

Remaining conviction grounds

Other grounds, including challenges to the summing-up, the validity of the night-time execution of a search warrant, and the jury's application of the Jones v Dunkel principle, were considered and rejected. The Court was not satisfied that the verdicts were perverse or that any identified error had resulted in a substantial miscarriage of justice. The proviso under s 6(1) of the Criminal Appeal Act 1912 applied in any event: on the evidence, no real chance of acquittal had been lost.

Sentence appeals

On sentence, the Court granted leave to appeal in both cases but dismissed the appeals. In relation to the female appellant, the Court noted she had previously received a lenient sentence for an earlier offence and had committed the present offence while on parole. Those circumstances weighed significantly against any reduction of her non-parole period. General deterrence, personal deterrence, and retribution all pointed against further leniency. The male appellant's sentence appeal was also dismissed, his criminal record being a decisive factor against reducing the non-parole period despite delays in the proceedings.

Orders Made

  • Mariana Niga's appeal against conviction is dismissed
  • Doru Riscuta's appeal against conviction is dismissed
  • Mariana Niga's application for leave to appeal against sentence is granted but the appeal is dismissed
  • Doru Riscuta's application for leave to appeal against sentence is granted but the appeal is dismissed

Key Takeaways

  • Voice identification evidence from a witness who had limited but genuine prior exposure to a voice is capable of satisfying the relevance threshold under s 55(1) of the Evidence Act 1995 and need not be excluded under s 137 solely on the basis of that limited familiarity.
  • A trial judge's directions on voice identification evidence must address the risk of witness overconfidence, but the Court of Criminal Appeal will not intervene where those directions are found to have been adequate in the context of the whole summing-up.
  • Under the proviso to s 6(1) of the Criminal Appeal Act 1912, a conviction will stand despite identified trial irregularities if no substantial miscarriage of justice actually occurred and the appellant did not lose a real chance of acquittal.
  • Reoffending while on parole, and having previously received judicial leniency for an earlier related offence, are factors that weigh materially against a finding of special circumstances to reduce a non-parole period on appeal.
  • In dismissing both sentence appeals, the Court of Criminal Appeal confirmed that personal deterrence and retribution are proper sentencing considerations where an offender has disregarded earlier judicial warnings about the seriousness of drug supply offences.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 26
- Evidence Act 1995 (NSW), ss 55, 116, 137
- Search Warrants Act 1985 (NSW)

Cases
- Azzopardi v R (2001) 205 CLR 50
- Bulejcik v R (1996) 185 CLR 375
- Domican v R (1992) 173 CLR 555
- Dyers v R (2002) 192 ALR 181
- Festa v R (2001) 185 ALR 394
- Jones v Dunkel (1959) 101 CLR 298
- MacKenzie v R (1996) 190 CLR 348
- RPS v R (2000) 199 CLR 620
- Veen v R (No 2) (1987-1988) 164 CLR 465
- Velevski v R (2002) 187 ALR 233
- R v Adler (2001) 52 NSWLR 451
- R v Dungay (2001) 126 A Crim R 216
- R v Marshall (2000) 113 A Crim R 190
- R v Todd (1982) 2 NSWLR 517