Citation: Korgbara v Regina [2007] NSWCCA 84
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2007
Judges: McColl JA, Grove J, James J
Background
The appellant was convicted in the District Court of being knowingly concerned in the importation of cocaine into Australia. The case centred on a package sent from Brazil containing a bearing concealing cocaine, addressed to a mailbox leased by the appellant. The package was intercepted by authorities and a controlled delivery was conducted, but the package was never collected.
The prosecution's case was largely circumstantial. Investigators had lawfully intercepted 28 telephone calls made to and from a mobile phone purchased by the appellant. One call, to the NRMA, was in English and the appellant conceded he was the speaker. The remaining 27 calls were in Igbo, a Nigerian language and the appellant's native tongue. Translated transcripts of those calls were tendered, but no voice in the Igbo calls was specifically identified as the appellant's.
The Crown invited the jury to compare the appellant's voice on the English NRMA recording with the voices on the Igbo recordings, without any supporting expert evidence, to determine whether the appellant was a speaker in those calls. The trial judge permitted this course over objection, and it became the central ground of appeal against conviction.
Legal Issues
- Whether a jury may engage in voice comparison between recordings in different languages, specifically English and Igbo, in the absence of expert voice identification evidence.
- Whether there is a prescriptive rule that expert evidence is required before such a comparison can be permitted.
- On sentence, whether the trial judge gave adequate weight to: (a) a serious assault on the appellant in custody that caused a psychotic episode; and (b) the delay between arrest and trial.
- Whether the abolition of section 16G of the Crimes Act 1914 (Cth) during the period between arrest and trial should have resulted in the appellant being sentenced under the pre-repeal regime.
- Whether the sentence of nine years imprisonment with a non-parole period of five years and five months was manifestly excessive.
Decision
On the conviction appeal: The majority (McColl JA and James J) dismissed the conviction appeal, holding that no prescriptive rule could be established requiring expert evidence before a jury engages in cross-language voice comparison. Such a blanket rule would conflict with the statutory framework under the Evidence Act 1995. The admissibility and weight of such evidence remains subject to the circumstances of each case, and it was open for the jury in this case to draw their own conclusions.
Grove J dissented on this point. His Honour reasoned that recognising a voice in a foreign language is not a "commonplace human experience" in the way that recognising a familiar voice in one's own language is. He noted that Igbo may rely on tonal or sound-production techniques entirely different from English, making it speculative for an untrained jury to compare a voice speaking Igbo with one speaking English. Grove J would have allowed the conviction appeal, though he noted that, absent the impugned voice comparison evidence, a strong Crown case otherwise remained.
On sentence: The Court granted leave to appeal against sentence but dismissed the appeal. The majority found no error in the trial judge's approach to the assault in custody or the delay in proceedings. On the section 16G question, the Court rejected the submission that the appellant should have been sentenced as if that provision, which previously required courts to fix a sentence in certain federal drug matters that reflected the prospect of release on parole, remained on foot. The sentence was not found to be manifestly excessive.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted, but appeal dismissed.
Key Takeaways
- No prescriptive rule exists in NSW requiring expert voice identification evidence before a jury may compare voices recorded in different languages. Admissibility and weight remain fact-specific determinations.
- A conviction appeal against the cross-language voice comparison succeeded before Grove J in dissent, who held it is not a commonplace human experience to recognise a voice speaking an unfamiliar foreign language, particularly one that may use fundamentally different sound-production techniques from English.
- Where section 16G of the Crimes Act 1914 (Cth) was repealed between an accused's arrest and their trial, the Court of Criminal Appeal confirmed that the repeal applied and the accused could not be sentenced as if the section remained in force.
- In dismissing the sentence appeal, the Court found no error in the weight given to mitigating factors including an assault causing a psychotic episode and delay attributable to the Crown in bringing the matter to trial.
- The case illustrates the tension between the general principle that juries may draw their own inferences from voice recordings and the specific evidentiary difficulties that arise when the languages in the compared recordings differ.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Crimes Act 1914 (Cth), including s 16G (repealed) and Part 1AB
- Customs Act 1901 (Cth), s 233B
Key Cases:
- Bulejcik v R [1995] HCA 54; (1996) 185 CLR 375
- Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- R v Leung & Anor [1999] NSWCCA 287; (1999) 47 NSWLR 405
- R v Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63
- R v O'Doherty [2003] 1 Cr App R 5
- R v Chenia [2002] EWCA Crim 2345; [2003] 2 Cr App R 6
- Nguyen v R [2002] WASCA 181; (2002) 131 A Crim R 341
- Clarkson v R [2007] NSWCCA 70
- R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1