Citation: [2025] NSWSC 152
Court: Supreme Court of New South Wales
Date: 5 March 2025
Judge: Rigg J
Background
The applicant was convicted in early 2017 by a jury of 11 counts of dealing in identification information with intent to facilitate the indictable offence of dishonestly obtaining a financial advantage by deception, contrary to s 192J of the Crimes Act 1900 (NSW). He was sentenced to imprisonment and, after his release, unsuccessfully sought leave to appeal against his conviction in 2022.
Having exhausted the ordinary appeal process, the applicant applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction or a referral to the Court of Criminal Appeal. His application rested on a forensic voice comparison report prepared by Dr Geoffrey Morrison, which he characterised as new evidence.
Dr Morrison's report analysed recordings of 11 telephone calls conducted in the Hindi language. Notably, the actual recordings of those calls were not in evidence at trial, though English translations of the transcripts were. The applicant argued the report raised a doubt or question as to his guilt sufficient to trigger the statutory power to act under s 79(1)(b) of the Act.
Legal Issues
- Whether Dr Morrison's forensic voice comparison report constituted new evidence capable of raising a "doubt or question" as to the applicant's guilt within the meaning of s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW).
- Whether the Supreme Court should exercise its power to refer the whole case to the Court of Criminal Appeal or direct an inquiry, notwithstanding the Attorney General's concession that the report was arguably capable of raising the appearance of such a doubt.
Decision
Rigg J declined to make any referral or direct any inquiry, despite the Attorney General conceding the Morrison report was arguably capable of raising an appearance of doubt. The Court found that the report did not in fact give rise to the appearance of a doubt or question as to the applicant's guilt, for two distinct reasons.
The first and most fundamental problem was evidentiary: there was no evidence before the Court that the voice sample Dr Morrison used as a reference for the applicant's usual speaking voice was actually the applicant's usual speaking voice. The foundation for the comparison was therefore not established.
The second reason concerned the peripheral role the 11 Hindi calls played in the Crown case. The prosecution's case rested principally on approximately 40 recorded English-language calls, which were played to the jury over three days. The jury was invited to compare those recordings with samples of the applicant's voice in English, including a recorded conversation with police. The Crown also relied on extensive circumstantial evidence: the two relevant mobile phones were found in the pocket of jeans belonging to the applicant in the room where he was sleeping alone, together with his bank cards and photographic identification.
Two further Hindi calls not analysed by Dr Morrison were also significant in the Crown case. By contrast, the 11 calls Dr Morrison did analyse served only a background or tendency-reasoning function relating to intent and understanding, matters that were not in dispute at trial. Rigg J concluded that the Morrison report had no meaningful impact on the strength of the Crown case and did not create the statutory threshold condition for referral or inquiry.
Orders Made
- The application of Mohammed Ali filed on 20 March 2024 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may only direct an inquiry or refer a case to the Court of Criminal Appeal if it appears there is a doubt or question as to the convicted person's guilt. The threshold has been described as "not a demanding one," but it remains a real threshold that must be satisfied.
- A concession by the Attorney General that new evidence is "arguably capable" of raising the appearance of doubt does not bind the Court. Rigg J independently assessed the evidence and reached a contrary conclusion.
- Forensic comparison evidence depends on the adequacy of its underlying sample. Where there is no evidence that a reference voice sample actually represents the subject's usual speaking voice, the comparison lacks the evidentiary foundation needed to carry any weight.
- The significance of purportedly new evidence must be assessed against the full weight and character of the original Crown case. Evidence that played only a peripheral role at trial is unlikely to give rise to doubt sufficient to enliven the statutory power, particularly where the conviction rested on a substantial body of circumstantial and direct evidence.
- Refusing the application confirmed that the Part 7 inquiry mechanism is directed at overcoming genuine injustices after the appeal process is exhausted, not at providing a further appellate opportunity where new expert evidence does not materially bear on the central pillars of the original conviction.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes Act 1900 (NSW), s 192J
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Ali v R [2022] NSWCCA 199
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- SKAF, Bilal – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- GAR v Attorney General of NSW (No 2) [2017] NSWCA 314
- Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30