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Court of Criminal Appeal 15 September 2022

Ali v R

[2022] NSWCCA 199

Fraud & dishonesty
CRIMINAL LAW APPEAL E VIDENCE E XPERT EVIDENCE W HETHER THAT EVIDENCE WAS ADMISSIBLE NO MERIT IN EITHER GROUND OF APPEAL

Citation: Ali v R [2022] NSWCCA 199
Court: Court of Criminal Appeal, New South Wales
Date: 15 September 2022
Judges: Beech-Jones CJ at CL, Bellew J (principal judgment), Fagan J

Background

The applicant was convicted after a District Court trial on 11 counts of dealing in identification information with intent to facilitate dishonest obtaining of a financial advantage by deception, contrary to s 192J of the Crimes Act 1900 (NSW). The Crown alleged he was part of a criminal enterprise producing false identification documents, including drivers' licences and Medicare cards, which were then used to open fraudulent bank accounts.

The Crown's case was entirely circumstantial and rested in part on 24 intercepted telephone conversations in Hindi. Those calls were between an identified person and an unidentified "male voice," which the Crown asserted was the applicant. An accredited interpreter and translator gave evidence translating the calls into English and, without objection from defence counsel, also gave evidence that the "male voice" in each call was that of the same person. That opinion was based on her familiarity with Hindi and her assessment of the voice's tone, pitch, and speed.

The applicant sought leave to appeal against his convictions, well outside the usual time limit. He advanced two grounds: that the interpreter's opinion evidence was inadmissible, and that a miscarriage of justice arose because the Crown had not played all 24 Hindi calls to the jury.

  • Whether an accredited interpreter, without formal voice-recognition training, could give admissible opinion evidence that the "male voice" across multiple intercepted calls was the same person.
  • Whether the interpreter was in any better position than the jury to make that determination, such that her evidence had probative value beyond common knowledge.
  • Whether the Crown's failure to play all 24 Hindi calls to the jury constituted a miscarriage of justice.
  • Whether an extension of time to appeal should be granted notwithstanding the substantial delay.

Decision

Admissibility of the interpreter's opinion evidence

Bellew J (with whom the other judges agreed) held that the interpreter's evidence was admissible as that of an "ad hoc" expert under s 79 of the Evidence Act 1995 (NSW). The critical point was that the Hindi calls were in a language with which the witness had particular professional familiarity, and her assessment of voice consistency drew on Hindi-specific features of tone, pitch, and accent. She was not being asked to identify whose voice it was, only whether the same voice appeared across the calls. On that basis, she was not in the same position as the jury.

The court distinguished Smith v The Queen (2001) 206 CLR 650, which concerns lay identification of an accused in CCTV footage, on the basis that the interpreter's opinion rested on specialised linguistic familiarity rather than mere lay observation. The court followed R v Leung (1999) 47 NSWLR 405 and distinguished Nasrallah v R [2015] NSWCCA 188. The evidence was also found to be relevant as one circumstance in the Crown's broader case.

The trial judge's direction

The trial judge directed the jury that the interpreter had no training in voice identification and was "no more or less qualified" than the jury to assess the voice. The Court of Criminal Appeal considered that proposition was not correct and expressed some doubt about whether an identification direction was appropriate at all in these circumstances. However, because the direction was framed in terms favourable to the applicant, no miscarriage of justice arose from it.

Crown's failure to play all Hindi calls

The Court confirmed that it is for the Crown to determine what evidence to call in a criminal trial. A decision not to call particular evidence will only ground a miscarriage of justice if, viewed against the trial as a whole, it produced an unfair outcome. Here, only 5 of the 24 calls were played to the jury. The trial judge remarked that playing all calls would have been a waste of court time, observations the Court of Criminal Appeal described as entirely appropriate. Defence counsel had not applied to have the remaining calls played. No miscarriage of justice was established on this ground.

Extension of time

The application was substantially out of time. Fagan J observed that one available course was to refuse the extension altogether given the delay and the lack of merit in the grounds. However, the Court determined it was more appropriate to deal with the matter on its merits to reflect finality in the criminal process, and so the extension was granted before the appeal was dismissed.

Orders Made

  • The time for filing a Notice of Appeal is extended to 23 February 2022.
  • The appeal is dismissed.

Key Takeaways

  • An accredited interpreter can give admissible opinion evidence as an "ad hoc" expert under s 79 of the Evidence Act 1995 (NSW) as to whether the same voice appears across multiple intercepted calls in a foreign language, where the opinion is grounded in familiarity with the linguistic features of that language.
  • The proposition from Smith v The Queen that a witness is in no better position than the jury does not automatically apply where the opinion is based on language-specific expertise rather than ordinary lay observation.
  • A Crown decision not to tender particular evidence will only found a miscarriage of justice where, considered against the conduct of the trial as a whole, it produced an unfair outcome. The absence of a defence request for the evidence to be tendered is a relevant consideration.
  • Where a trial judge's direction is incorrect but operates in the accused's favour, no miscarriage of justice arises from the error.
  • In dismissing this appeal, the Court of Criminal Appeal confirmed that granting an extension of time to enable a final merits determination can be appropriate even where delay is substantial and the grounds lack merit, so that the criminal process is brought to a clear and final conclusion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192J (dealing in identification information), s 256(1)
- Evidence Act 1995 (NSW), s 79 (opinion evidence by experts)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287
- Nasrallah v R; R v Nasrallah [2015] NSWCCA 188
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58
- R v Menzies [1982] 1 NZLR 40
- IW v R [2019] NSWCCA 311