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Court of Criminal Appeal 2 February 2017

Nguyen v R

[2017] NSWCCA 4

Also reported as (2017) 264 A Crim R 405
Drugs
APPEAL CRIMINAL SUPPLY OF DRUGS CIRCUMSTANTIAL EVIDENCE SILENCE OF ACCUSED DEEMED SUPPLY CHARGE

Citation: Nguyen v R [2017] NSWCCA 4
Court: Court of Criminal Appeal, NSW
Date: 2 February 2017
Judge(s): Basten JA; R A Hulme J; Schmidt J

Background

The appellant was convicted in the District Court on four counts of supplying methylamphetamine following a police investigation into drug supply in south-west Sydney. The prosecution case was that she had organised a drug supplier, directing him to supply ice on two occasions in May 2012. She was sentenced to an effective term of eight years and six months with a non-parole period of five years and six months.

The key prosecution evidence arose from telephone intercepts. Police monitored thousands of calls and messages over several mobile services. A female voice appeared on calls connected to two mobile numbers, and police believed both voices belonged to the same person. When the appellant was arrested, one of the relevant mobile phones was found beneath the passenger seat she had occupied, and a SIM card for the second number was in her handbag.

At trial, a police constable who had spent approximately two months monitoring over 44,000 intercepted communications gave evidence that the female voice on the intercepted calls matched the voice of the appellant, as recorded during her electronically recorded interview. The appellant did not give evidence at trial. She appealed her convictions almost two years after they were entered.

  • Whether the police constable's voice identification evidence was admissible, including whether it engaged the opinion evidence exclusionary rule under s 76 of the Evidence Act 1995 (NSW), and if so, whether it qualified as lay opinion (s 78) or expert opinion (s 79)
  • Whether repeated listening to intercepted calls could give rise to "ad hoc expertise" sufficient to ground admissibility under the expert opinion exception
  • Whether the trial judge's directions on circumstantial evidence were adequate
  • Whether the jury directions on deemed supply under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) were adequate
  • Whether the direction on the significance of the appellant's silence (her election not to give evidence) was adequate

Decision

The court refused leave to appeal on three of the four grounds. No complaint had been raised about the jury directions at trial, which meant leave was required under the Criminal Appeal Rules. The court found no proper basis to grant that leave in respect of the directions on circumstantial evidence, deemed supply, or the appellant's silence.

On the central ground concerning voice identification evidence, leave to appeal was granted but the ground ultimately failed. The court analysed the admissibility of the constable's evidence across three possible bases: as non-opinion evidence not governed by s 76, as lay opinion under s 78, and as expert opinion under s 79. The trial judge had admitted the evidence without reference to the opinion rule, treating the constable's comparison as something other than opinion evidence. The Court of Criminal Appeal found this approach questionable, given that a conclusion about the identity of a speaker drawn from listening to recordings is properly characterised as opinion evidence.

The court considered whether the constable's experience qualified as "ad hoc expertise" under s 79, which permits opinion evidence from a person whose specialised knowledge is based on training, study, or experience. Basten JA and the other members of the court accepted that sustained, intensive listening to a large volume of intercepted communications involving the same voice, combined with comparison against the appellant's recorded interview, could generate the kind of familiarity with a speaker's voice that supports admissibility. This was consistent with earlier decisions of the court dealing with voice identification by persons who had prolonged exposure to the relevant voice.

All three judges agreed the appeal should be dismissed. Basten JA and Schmidt J both confirmed the constable's evidence was admissible under s 79, resting on the experience of extended and focused listening. R A Hulme J reached the same conclusion as to admissibility, agreeing on the orders proposed.

Orders Made

  • Leave to appeal against conviction refused.

Key Takeaways

  • A police officer who spends several months intensively monitoring thousands of intercepted communications involving the same voice, and who then compares that voice with a recorded interview, may acquire sufficient familiarity to give admissible voice identification evidence under s 79 of the Evidence Act 1995 (NSW) as a form of ad hoc expertise.
  • Evidence of voice identification by a witness is properly characterised as opinion evidence and engages the exclusionary rule in s 76 of the Evidence Act, even where the witness is not a forensic expert.
  • Grounds of appeal concerning jury directions will ordinarily require leave under the Criminal Appeal Rules where no objection to those directions was raised at trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sustained experiential familiarity with a speaker's voice, rather than formal acoustic or linguistic training, can satisfy the "specialised knowledge based on experience" requirement in s 79.
  • No single analytical basis (common law, lay opinion under s 78, or expert opinion under s 79) was unanimously agreed upon, but all judges agreed the evidence was correctly admitted, with Basten JA and Schmidt J favouring admissibility under s 79.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules, r 4
- Drug Misuse and Trafficking Act 1985 (NSW), s 29
- Evidence Act 1995 (NSW), ss 9, 20, 29, 55, 76, 78, 79, 114, 115, 116, 135, 137, 165

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Irani v R [2008] NSWCCA 217
- Nasrallah v R [2015] NSWCCA 188
- R v Adler (2000)-(2001) 52 NSWLR 451
- R v Brownlowe (1987) 7 NSWLR 461
- R v Butera (1987) 164 CLR 180
- R v E J Smith [1984] 1 NSWLR 462; (1987) 7 NSWLR 444
- R v Leung (1999) 47 NSWLR 405
- R v Trudgett (2008) 70 NSWLR 696
- R v Wilson (2006) 62 NSWLR 362
- Regina v Riscuta and Niga [2003] NSWCCA 6
- Smith v The Queen (2001) 206 CLR 650