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District Court 17 October 2012

R v Dunn

[2012] NSWDC 192

Theft & property
CRIMINAL LAW JUDGMENT JUDGE ALONE TRIAL VOICE IDENTIFICATION EVIDENCE FAILURE TO ASK IMPORTANT QUESTIONS

Citation: R v Dunn [2012] NSWDC 192
Court: District Court of New South Wales
Date: 17 October 2012
Judge: Berman SC DCJ

Background

The accused was charged with attempting to break and enter premises at Belrose on 14 May 2011, in company with others, with intent to steal. He pleaded not guilty and elected to have the matter determined by a judge alone, without a jury.

Police had been conducting an extended electronic surveillance operation targeting the accused and others. Over the relevant period, approximately 3,800 telephone calls involving the accused's phones were recorded, and a listening device was installed in a stolen Mercedes Benz used in the offence. The listening device captured conversations and sounds, including a sledgehammer being used in the attempted break-in.

The Crown did not dispute that the listening device recorded the voices of people who committed the offence. The entire Crown case rested on whether one of those recorded voices was the accused's.

  • Whether voice identification evidence from police officers, who had become familiar with the accused's voice through telephone intercept recordings, was sufficient to establish identity beyond reasonable doubt.
  • Whether the content of the listening device recording, including the use of names associated with the accused, provided reliable corroboration of the voice identification.
  • Whether the transcript of the listening device recording accurately reflected what was said on the recording.

Decision

Berman SC DCJ approached the voice identification evidence with considerable caution, consistent with how a jury would be directed. His Honour noted the important distinction between a witness being honest and a witness being accurate: police officers may genuinely and firmly believe their identification is correct while still being mistaken.

His Honour identified several specific factors undermining the reliability of the identification in this case. The person said to be the accused made only 32 utterances totalling 119 words on the listening device recording, many of them very brief exclamations. The recording itself was affected by engine noise, and the microphone appears to have been inside the vehicle while the identified speaker remained outside, making the voice indistinct at times. His Honour also noted the potential for cultural and accent-related difficulties in voice recognition, given the accused's Aboriginal background, and observed that the Crown led no evidence addressing this issue.

A further and significant problem arose from the transcript of the listening device recording. His Honour listened repeatedly to a portion of the recording where the transcript attributed the name "Dunny" (a variant of the accused's surname) to one of the speakers. His Honour could not hear that word. Instead, he found what he heard was more consistent with the name "Damien." Similarly, his Honour found that the Crown's submission about the context of that exchange was plainly inconsistent with what the recording actually contained, as distinct from what the transcript suggested.

Taking all these matters together, his Honour was unable to exclude the reasonable possibility that the four identifying officers were mistaken, particularly given the small number of utterances attributed to the accused and the likelihood of unconscious suggestion influencing the officers' opinions. The accused was found not guilty.

Orders Made

• The accused is found not guilty.

Key Takeaways

  • Voice identification evidence is inherently fraught with difficulty and warrants particular caution, because it offers fewer objective features for comparison than visual identification.
  • The District Court treated the small number and brevity of the alleged speaker's utterances on the listening device recording as a significant factor reducing the reliability of the identification.
  • Where identifying officers have been investigating a suspect and have listened extensively to that person's voice, there is a real risk of unconscious suggestion influencing their opinion, even when that opinion is genuinely held.
  • Transcripts of listening device recordings are not necessarily accurate, and a court conducting a judge-alone trial may reject the Crown's submissions where those submissions are founded on a transcript that does not reflect what the recording actually contains.
  • A conviction cannot rest on voice identification evidence alone where the cumulative effect of the recording conditions, the brevity of utterances, and the potential for honest mistake leaves open a reasonable possibility that the identification is wrong.

Legislation and Cases Referenced

Legislation: None cited in the judgment.

Cases: None cited in the judgment.