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Court of Criminal Appeal 18 September 2008

Irani v R

[2008] NSWCCA 217

Also reported as (2008) 188 A Crim R 125
Drugs
CRIMINAL LAW CONVICTION APPEAL AD HOC EXPERT IDENTIFICATION OF VOICE ON AUDIO TAPES ADMISSIBILITY OF EVIDENCE S 137 EVIDENCE ACT 1995

Citation: Irani v R [2008] NSWCCA 217
Court: Court of Criminal Appeal, New South Wales
Date: 18 September 2008
Judge(s): McClellan CJ at CL, Hoeben J, Harrison J

Background

The appellant was convicted in the District Court on four counts of supplying cocaine following a jury trial before Williams DCJ. The Crown case rested on the evidence of an undercover police informant who had purchased cocaine from the appellant at a nightclub, supported by listening device recordings of the transactions and police corroboration of the supply chain.

A central element of the Crown's case was the evidence of Detective Robinson, who had spent approximately two months preparing transcripts from 29 listening device recordings and a further four days reviewing those transcripts with the informant. Through that extended process, Detective Robinson became closely familiar with the voices on the recordings and identified the appellant's voice as that of the person referred to as "Nick." He confirmed this identification when the appellant later presented himself at Surry Hills Police Station.

The defence case was not one of mistaken identification. The informant had known the appellant for over two years. Rather, the defence contended that the informant had deliberately fabricated the appellant's involvement to maximise the number of charges arising from the operation, given that the informant had received an indemnity for serious offences in exchange for his cooperation.

  • Whether the trial judge erred in admitting Detective Robinson's voice identification evidence by failing to properly apply section 137 of the Evidence Act 1995
  • Whether the trial judge correctly assessed the "probative value" of the voice identification evidence before conducting the required balancing exercise against the danger of unfair prejudice
  • Whether the danger that Detective Robinson's evidence would appear to be independent expert corroboration of the informant's account rendered that evidence inadmissible

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the trial judge's application of section 137. Hoeben J (with whom McClellan CJ at CL and Harrison J agreed) held that the trial judge had in substance assessed the probative value of Detective Robinson's evidence throughout his ruling, notwithstanding that the explicit balancing exercise appeared only on the final page of the judgment.

The trial judge had compared the probative value of the voice identification evidence against that admitted in comparable authorities, including cases involving ad hoc experts who had become familiar with voices through repeated listening. Detective Robinson qualified as an ad hoc expert in the established sense: through prolonged exposure to the recordings, he had developed a familiarity with the voices that went beyond what the jury could bring to bear on the tapes themselves.

The trial judge acknowledged the specific danger that Detective Robinson's evidence might be perceived as independent expert corroboration of the informant's account. However, his Honour concluded that this risk could be adequately addressed through clear jury directions, and the Court of Criminal Appeal found that this conclusion was open to him.

On the question of probative value, the Court found the evidence was not slight. On a number of recordings, only two people were present and speaking: the informant and the person attributed to the appellant. Detective Robinson's voice recognition in those circumstances provided genuine assistance to the jury. No error was established in the trial judge's assessment.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A person who has listened extensively to audio recordings for the purpose of preparing transcripts may qualify as an "ad hoc expert" capable of giving admissible voice identification evidence, even without formal qualifications in phonetics or linguistics.
  • Under section 137 of the Evidence Act 1995, a court must refuse to admit prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant. The probative value is defined as the extent to which the evidence could rationally affect assessment of the probability of a fact in issue.
  • No error arose from the trial judge's section 137 analysis simply because the explicit balancing conclusion appeared at the end of a judgment. The substance of the reasoning demonstrated that the required assessment had been carried out.
  • The risk that voice identification evidence by an experienced detective might appear to be independent expert corroboration of an informant's account is a recognised danger under section 137, but it can be a sufficient response to that danger to give clear jury directions rather than exclude the evidence entirely.
  • In dismissing the appeal, the Court confirmed that where recordings feature only two speakers and one is independently identified, the probative value of an ad hoc expert's voice identification evidence is not readily characterised as slight.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137 and Dictionary definition of "probative value"

Cases
- Butera v DPP (Vic) (1987) 164 CLR 180
- Doney v The Queen (1990) 171 CLR 207
- R v Blick (2000) 111 A Crim R 326
- R v Camilleri (2001) 127 A Crim R 290
- R v Carusi (1997) 92 A Crim R 52
- R v Leung and Wong (1999) 47 NSWLR 405
- R v Li (2003) 140 A Crim R 288
- R v Madigan [2005] NSWCCA 170
- R v Menzies [1982] 1 NZLR 40
- R v Rahme [2004] NSWCCA 233
- R v Riscuta and Niga [2003] NSWCCA 6
- R v Shamouil [2006] NSWCCA 112
- Smith v The Queen (2001) 206 CLR 650