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Court of Criminal Appeal 26 February 2016

Morgan v R

[2016] NSWCCA 25

Public order & justice offences
APPEAL CONVICTION VOICE IDENTIFICATION EVIDENCE ADMISSIBILITY OF OPINION EVIDENCE EVIDENCE ACT 1995 (NSW), SS 76, 79 NO DETERMINATION MADE BY TRIAL JUDGE

Citation: Morgan v R [2016] NSWCCA 25
Court: Court of Criminal Appeal, New South Wales
Date: 26 February 2016
Judges: Simpson JA (at [1]); Johnson J (at [45]); McCallum J (at [46])

Background

The appellant was convicted in the District Court on five counts arising from a series of offences committed in Sydney in July 2012, including attempted break, enter and steal at a bank, two break and enter offences at commercial premises, and a robbery in company at a jewellery store. He was sentenced to an aggregate term of 10 years' imprisonment with a non-parole period of 7 years.

No witness visually identified the appellant, and he made no admissions. The Crown's case was largely circumstantial, relying significantly on voice identification evidence. A listening device lawfully installed in a stolen BMW used during the offences captured conversations among three men. A detective then familiarised himself with the appellant's voice by listening to recordings of the appellant's telephone calls made while in custody, and gave opinion evidence identifying one of the voices on the listening device recordings as the appellant's.

The appellant appealed against his convictions. Of four original grounds of appeal, three were abandoned at the hearing. The sole remaining ground challenged the admissibility of the voice identification evidence.

  • Whether the trial judge erred in admitting the detective's voice identification opinion evidence under the ad hoc expert principles in s 79 of the Evidence Act 1995 (NSW)
  • Whether, given that the precise objection now raised was not taken at trial, the appellant required leave under r 4 of the Criminal Appeal Rules (NSW) to rely on the ground
  • Whether leave should be granted in the circumstances

Decision

The Court found that the specific legal challenge now pressed on appeal, namely that the detective's opinion did not qualify as admissible ad hoc expert evidence under s 79 of the Evidence Act 1995, had not been raised before the trial judge. While objection was taken to the evidence during a voir dire, a compromise position was ultimately reached between the parties, and the evidence was admitted without the trial judge being asked to determine the precise question now in issue.

Simpson JA held that a trial judge cannot be found to have wrongly decided a question of law that was never put to her for determination. A ground asserting wrongful admission of evidence must be assessed on the basis of what was actually argued before the trial judge, not on a new characterisation raised for the first time on appeal.

Because the point was not taken at trial, the appellant required leave under r 4 of the Criminal Appeal Rules to rely on it. Simpson JA declined to grant leave, noting that the clear position taken by the defence at trial precluded any proper basis for doing so. Her Honour also noted that, in any event, there was no substance in the ground itself.

Johnson J and McCallum J both agreed with Simpson JA without adding separate reasons.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A trial judge cannot be held to have erred on a question of law that was not raised before them for determination; an appellate court assesses the admission of evidence based on the argument and evidence actually before the trial judge.
  • Under r 4 of the Criminal Appeal Rules (NSW), a party wishing to appeal on the basis of an evidentiary ruling must have objected to that ruling at trial, or must obtain leave from the Court of Criminal Appeal to raise it on appeal.
  • Where the defence at trial reached a compromise position on the admissibility of evidence, that conduct provides no basis for leave to raise a materially different objection on appeal.
  • Ad hoc expert evidence of voice identification, where a witness familiarises themselves with a known voice for comparison purposes, falls within the principles governing opinion evidence under ss 76 and 79 of the Evidence Act 1995 (NSW), though the Court did not need to resolve that question in detail given the procedural history.
  • In dismissing the appeal, the Court confirmed that procedural rules governing the raising of grounds at trial serve an important gatekeeping function, limiting the scope of criminal appeals where objections were not properly preserved.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 76, 79
- Criminal Appeal Act 1912 (NSW), ss 5 and 6
- Criminal Appeal Rules (NSW), r 4
- Surveillance Devices Act 2007 (NSW)
- Telecommunications (Interception and Access) Act 1979 (Cth), s 7

Cases
- Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
- Honeysett v The Queen [2014] HCA 29; 253 CLR 122
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
- Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
- R v Irani [2008] NSWCCA 217; 188 A Crim R 125
- R v Leung and Wong [1999] NSWCCA 287; 47 NSWLR 405
- R v Madigan [2005] NSWCCA 170