Citation: R v J Lucas; R v B Lucas (No 3) [2022] NSWSC 1809
Court: Supreme Court of New South Wales
Date: 24 February 2022
Judge(s): Button J
Background
The proceeding concerned a pre-trial ruling on the admissibility of voice identification evidence. A video of an alleged sparkler bomb explosion from July 2019 was central to the prosecution case. A federal agent sought to give evidence identifying one of the voices on the video as belonging to one of the accused.
The federal agent had interacted with the accused in March 2020 during forensic procedure sessions. Although those sessions ran for roughly 20 minutes and one hour respectively, the accused was described as "basically monosyllabic" throughout, playing an extremely limited verbal role.
Separately, the jury was expected to hear extensive recorded police interviews in which the accused spoke far more expansively. That body of material had not been relied upon by the federal agent when forming his identification opinion.
Legal Issues
- Whether the federal agent qualified as an "ad hoc expert" for the purposes of s 79 of the Evidence Act 1995 (NSW), such that his opinion evidence on voice identification was admissible
- Whether the voice identification evidence was relevance under s 55 of the Evidence Act, given the principle in Smith v The Queen (2001) 206 CLR 650 that opinion evidence is irrelevant where the witness is in no better position than the jury
- Whether, even if relevant and admissible, the evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice
Decision
Issue 1: Relevance under s 55 and the Smith v The Queen principle
Button J identified relevance as the threshold question (at [20]). His Honour applied the principle from Smith v The Queen that evidence is simply irrelevant where the witness is in no better position than the jury to make the identification (at [20]-[21]). Unusually, the jury would have access to more material about the accused's voice than the federal agent had relied upon, namely the extended recorded interviews. The court concluded that the jury would be at least as well placed, and arguably better placed, than the federal agent to make the comparison (at [21]-[22]).
Issue 2: Ad hoc expert status under s 79
The court accepted that the ad hoc expert concept exists and has long been recognised, tracing its origins to R v Menzies and its approval in Butera v DPP (Vic) (at [11]). However, applying the caution sounded by the Court of Criminal Appeal in Nasrallah v R, Button J emphasised the need to examine precisely what expertise the witness actually brought to the evidence (at [12]). The court drew a contrast with R v Leung, where an interpreter could explain foreign language patterns, accents, and speech characteristics that a jury could not readily assess, and with Irani v R, where the identifier had listened to hundreds of hours of recordings over two months (at [13]-[16]). Here, the federal agent's exposure to the accused's voice was minimal and offered no analytical advantage over the jury. The court held the s 79 threshold was not met (at [23]).
Issue 3: Exclusion under s 137
Button J also addressed the discretionary exclusion ground. His Honour found the probative value of the evidence to be low, even assessed at its highest in accordance with IMM v The Queen (at [24]). Against that, there was a recognised danger of unfair prejudice with identification evidence generally, and a specific risk that jurors might unconsciously defer to an experienced investigator despite being equally or better equipped to make the assessment themselves (at [25]). Proposed jury directions under ss 116 and 165 of the Evidence Act were considered insufficient to remove that risk entirely. Accordingly, exclusion under s 137 was warranted on an alternative basis (at [28]).
Orders Made
- Voice identification evidence excluded: the evidence will not be permitted to be led at trial
Key Takeaways
- Voice identification evidence from a police officer or investigator is irrelevant under s 55 of the Evidence Act where the witness is in no better position than the jury to make the comparison, following Smith v The Queen (at [20]-[22]).
- The ad hoc expert category under s 79 of the Evidence Act requires genuine analytical expertise that the jury could not replicate. Limited monosyllabic interactions with an accused do not confer that expertise, particularly where the jury has access to more extensive voice material than the proposed expert relied upon (at [12]-[23]).
- The contrast drawn with R v Leung and Irani v R illustrates that ad hoc expert status is fact-specific: the relevant question is whether the witness's particular exposure and skills give them a meaningful advantage over the tribunal of fact (at [13]-[16]).
- Where the probative value of identification evidence is low and the risk of jurors unconsciously deferring to an experienced investigator is real, s 137 of the Evidence Act requires exclusion even after proposed jury directions are taken into account (at [24]-[28]).
- Button J noted that the "bootstrapping" risk arises where a proposed ad hoc expert's opinion is partly shaped by other witnesses' assertions about who was present, which can contaminate the independence of the identification (at [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Irani v R [2008] NSWCCA 217
- Nasrallah v R; R v Nasrallah [2015] NSWCCA 188
- R v Leung & Anor (1999) 47 NSWLR 405; [1999] NSWCCA 287
- R v Marsh [2005] NSWCCA 331
- R v Menzies [1982] 1 NZLR 40
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50