Nasrallah v R; R v Nasrallah

1. [1]

   HOEBEN CJ at CL: I agree with McCallum J.

2. [2]

   ADAMS J: I agree with McCallum J.

3. [3]

   McCALLUM J: This appeal raises an important question as to the use of police officers as ad hoc voice identification experts in criminal trials. The appellant was arraigned on an indictment containing four counts of importing a border controlled drug, Gammabutyrolactone (GBL), and one count of supplying the same drug. He pleaded guilty to the count of supply but not guilty to the four counts of importation.

4. [4]

   The prohibited drug was imported in each case in packages shipped from China. As to each of the four counts on the indictment, the packages were intercepted by Customs and not delivered. However, in addition to those four packages, there was evidence in the Crown case of four further occasions on which similar packages from China were delivered to the appellant’s home address. The Crown relied on that evidence as tendency evidence.

5. [5]

   In the case of a number of the consignments, the freight forwarder was the company, DHL. The evidence in the Crown case included 21 recordings of telephone calls made to that company inquiring as to the progress of three of the packages (those relating to counts 2 and 3 on the indictment and one of the delivered consignments). The content of the calls is such as to implicate the caller in those three importations.

6. [6]

   After his arrest, the appellant was initially refused bail. Whilst on remand, he made telephone calls from the gaol which, as is standard procedure, were recorded. Police obtained recordings of 178 of those calls for voice comparison purposes (a small number was also relied upon as directly implicating the appellant in the offences). It was not disputed that the appellant was the caller in those calls. In addition to those recordings, Federal Agent Succar, the case officer for the investigation, had spoken to the appellant twice and had a recording (lawfully obtained) of one of those conversations. The other was an occasion when subpoenas were served and few words were spoken by the appellant.

7. [7]

   Over the appellant’s objection, the trial judge admitted evidence from Federal Agent Succar to the effect that the voice of the caller in the 21 disputed DHL calls was the voice of the appellant, as heard by Federal Agent Succar on the recordings from the gaol and in his two direct conversations with the appellant. The evidence was admitted under s 79 of the Evidence Act 1995 (NSW) as ad hoc expert opinion evidence.

8. [8]

   The appellant was convicted of all four importations. He has appealed against his conviction. The first ground relates to the admission of the evidence of Federal Agent Succar. The remaining three grounds relate to the fact that the appellant’s barrister later made a concession that 20 of the 21 DHL calls were the voice of the appellant, a concession the appellant contends was made without instructions. The Crown has appealed against the alleged leniency of the sentence imposed.

9. [9]

   I have concluded that the appeal against conviction should be allowed, the conviction quashed and an order made for a new trial. In that circumstance, it is not necessary to determine the Crown’s appeal. That appeal should be dismissed.

Ad hoc expert voice identification evidence

1. [10]

   The first ground of appeal is:

2. [11]

   It is helpful to begin with an analysis of the way in which the issue of the proposed expert evidence emerged at the trial.

3. [12]

   At a pre-trial directions hearing a week before the trial, the Crown raised a number of issues that would have to be determined by the Court before a jury was empanelled. One was an issue raised by the appellant as to the admissibility of the 21 DHL calls and, in particular, whether the Crown could establish that they had been lawfully recorded. There was no suggestion at that stage that if those recordings were admitted there would be expert voice identification evidence comparing the voice of the caller in those calls with the recordings of the appellant in his calls from the gaol. On the contrary, although the Crown foreshadowed tendering the calls from the gaol for that purpose, she said the comparison would have to be made by the jury, explaining “there’s no witness. It wasn’t a case of a long-running investigation” (see transcript of 22 October 2013, T3.34).

4. [13]

   On the Friday before the trial was due to commence, the trial judge held a voir dire to determine the pre-trial issues including the admissibility of the DHL calls. During the hearing on the voir dire, the Crown began to lead oral evidence from Federal Agent Succar as to his comparison of the 21 DHL calls with the calls from the gaol. The barrister then appearing for the appellant objected and the judge noted what the Crown had said on the earlier occasion (that it was going to be a matter for the jury to compare the voices). The Crown evidently indicated her intention at that point to use Federal Agent Succar as a voice identification expert. The transcript records that the barrister appearing for the appellant had not been informed of that intention until that morning. He had accordingly not had any opportunity to prepare to argue the admissibility of the alleged expert evidence. For that reason, the argument had to be stood over until the following Monday.

5. [14]

   Before the continuation of the voir dire hearing on the Monday, the appellant’s barrister noted that the Crown had not served any supplementary statement from Federal Agent Succar setting out the proposed expert evidence. The matter was stood down for that to occur. A statement was prepared during a short adjournment and was tendered on the voir dire (statement dated 28 October 2013, identified in the transcript as exhibit 6 on the voir dire but described in the appeal books as exhibit E on the voir dire).

6. [15]

   In his supplementary statement, Federal Agent Succar stated that he is “an Australian with a Lebanese background”. He described his experience of the Arabic language, both at home and in the performance of his duties as a police officer. He also said that he had studied Arabic as an elective subject in 2004 when he completed a degree in business and computing. It should be noted, however, that none of the disputed calls was in Arabic. All of the calls are in English. The Crown’s contention appears to have been that Federal Agent Succar had relevant specialised knowledge in the identification of the accent of Arabic speakers when speaking English.

7. [16]

   In his original statement, Federal Agent Succar had evidently purported to identify the voice of the appellant on the DHL calls after listening to only four of the calls from the gaol (T32.25). In his supplementary statement, he said that, since making the original statement, he had listened to the DHL calls and about 142 of the gaol calls “on multiple occasions”. He said:

8. [17]

   The Crown expressly relied on s 79 of the Evidence Act, which provides:

9. [18]

   The reference to the opinion rule is a reference to s 76 of the Act which provides:

10. [19]

    The Crown did not rely on s 78 of the Evidence Act (relating to lay opinions).

11. [20]

    The argument before the trial judge proceeded on the common assumption that Federal Agent Succar’s supplementary evidence was evidence of an opinion that the voice of the caller in the 21 DHL calls was the voice of the appellant. The evidence was sought to be admitted to prove the existence of that fact. In accordance with s 79, the evidence was accordingly not admissible unless Federal Agent Succar had specialised knowledge based on his training, study or experience and the opinion was wholly or substantially based on that knowledge.

12. [21]

    On the present state of the law, it is accepted that, for the purpose of s 79 of the Evidence Act, an expert witness can be one who has acquired his or her specialised knowledge ad hoc (that is, for the very purpose of the legal proceedings in which the opinion evidence is relied upon): R v Leung & Wong [1999] NSWCCA 287; 47 NSWLR 405 at [40] per Simpson J (as her Honour then was); Spigelman CJ and Sperling J agreeing at [1] and [67] respectively. The correctness of that view was accepted in Irani v R [2008] NSWCCA 217 at [14] per Hoeben J (as his Honour then was) at [14]; McClellan CJ at CL and Harrison J agreeing at [1] and [34] respectively.

13. [22]

    The trial judge ruled that the evidence was admissible under s 79, relying on those decisions and the authorities cited therein. Her Honour remarked that the activities undertaken by the witnesses in those cases to acquire their ad hoc expertise “do not provide a minimum test for the admissibility of voice identification evidence”.

14. [23]

    The trial judge also cited the remarks of Wood CJ at CL to like effect in R v Madigan [2005] NSWCA 170 at [92], where his Honour said “there are no preconditions for the admissibility of voice identification evidence, other than relevance under s 55 of the Evidence Act” (citing R v Riscuta and Niga [2003] NSWCCA 6 at [34] per Heydon JA). However, the remarks of Heydon JA in Riscuta (and the decision of R v Adler (2001) 52 NSWLR 451 cited by his Honour as the authority for that proposition) were not concerned with voice identification evidence given by an ad hoc expert. They were cases in which the identification in question was made by a person who had some prior familiarity with the voice the subject of the identification.

15. [24]

    In the argument in the present case, the appellant had also submitted that, if admissible under s 79, the evidence should be excluded under s 137 of the Evidence Act. The judge rejected that submission but noted that the jury should be given appropriate warnings in accordance with ss 116 and 165 of the Evidence Act.

16. [25]

    The appellant submits that the Court’s recognition of ad hoc voice identification expertise is wrong but no notice was given that a bench of five should be convened in order to consider whether Leung and Irani were wrongly decided. In light of those authorities, the submission must be taken to have been put only formally in this Court. I am of the view, however, that the evidence of Federal Agent Succar was not admissible under the principles stated in those cases.

17. [26]

    It is important to be clear about the circumstances in which the witnesses in Leung and Irani were accepted as having ad hoc specialised knowledge (within the meaning of s 79) so as to warrant admitting evidence of their opinions concerning the voices in question.

18. [27]

    In Leung, police had covertly recorded conversations between three men while they opened packages imported from Bangkok. Parts of the conversations were in foreign languages. At the trial, the recordings of the conversations (referred to as the DAT tapes) were admitted, together with a transcript of a translation prepared by a qualified interpreter. During the preparation of the transcript, the interpreter had discerned three different male voices, which he called M1, M2 and M3. His basis for distinguishing the three different voices was described in the judgment of Simpson J at [18] as follows:

19. [28]

    At a later point in time (a week before the trial), the interpreter was asked to listen to tape recordings of conversations between each of the three appellants and Federal police and to compare the voices on those tapes with those on the DAT tapes in order to express an opinion as to the identity of the voices on the DAT tapes. The interpreter concluded that the voice he had nominated as “M1” was the voice of Leung and the voice he had nominated as “M3” was the voice of Wong.

20. [29]

    Justice Simpson’s conclusion that the interpreter could give evidence as an ad hoc voice identification expert was subject to an important qualification expressed at [44] to [45] of her Honour’s judgment, as follows:

21. [30]

    Although the decision in Leung stands as authority for the proposition that a person who has repeatedly listened to voice recordings can give evidence as an ad hoc voice identification expert, that conclusion was heavily qualified by those remarks. Further, as explained at [42] of the judgment, the task undertaken by the interpreter in that case was highly specialised, invoking the interpreter’s considerable specialised knowledge in foreign language and accent.

22. [31]

    The judgment of Simpson J provides a helpful analysis of the provenance of the notion of an “ad hoc expert” which Her Honour noted appears to have originated in the New Zealand decision of R v Menzies [1982] 1 NZLR 40. No question of voice identification arose in that case. Evidence had been admitted in the trial of tapes undoubtedly recording the voice of the appellant. The issue with which the relevant ground of appeal was concerned was the admissibility of a transcript of those tapes prepared by a police officer. The trial judge had initially refused to admit the transcript. However, after listening to two tapes, the judge changed his ruling because, on being listened to only once or twice, the tapes were unintelligible. The police officer, who had listened to the tapes “over and over again”, was accepted by the trial judge to have acquired “a special expertise in their interpretation”. The judge allowed the jury to have the transcript. The Court of Appeal upheld that ruling. A premise of the Court’s decision was that, in the case of a recording in a foreign language or where deficiencies in the recording “make it necessary to play tapes more than once to enable a better understanding”, while there should normally be at least one playing of the tapes to the jury, “the evidence of an expert should be admissible as an aid”. It was on that premise that the Court said “he may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc.”

23. [32]

    Justice Simpson noted that the idea of an ad hoc expert was subsequently endorsed by the High Court in Butera v DPP [1987] HCA 58; (1987) 164 CLR 180. Again, that was a case concerned with the admissibility of a transcript of a recording rather than with voice identification evidence. The appellant was convicted of conspiracy to traffic heroin. The Crown case included a tape recording of a conversation among some of the alleged co-conspirators which was mostly in Punjabi but partly in English and partly in Thai or Malay. Parts of the conversation were muffled and could only be made out after being listened to repeatedly by a person familiar with those languages. Applying Menzies, the High Court held that the transcript was admissible as a means of assisting the jury to understand the tape: at 187 per Mason CJ, Brennan and Deane JJ. In a separate judgment, Dawson J also cited Menzies as authority for the proposition that “an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice.”

24. [33]

    In Leung, Simpson J noted that each of those decisions was before the Evidence Act 1995 but drew comfort from two cases decided after the introduction of the Act in which the same principle was applied: Eastman v R (1997) 76 FCR 9 and R v Cassar; R v Sleiman (No 17) [1999] NSWSC 436.

25. [34]

    In Eastman, the Full Federal Court held (applying the decisions in Menzies and Butera) that the trial judge had not erred in admitting a transcript of indecipherable tapes prepared by a police officer who spent “literally thousands of hours” listening to the tapes. It was not in dispute that the voice on the tapes was Mr Eastman. Although the case was decided after the introduction of the Evidence Act, there was no consideration of the admissibility of the evidence under s 79 of the Act. The Court did make passing reference to s 48 of the Act.

26. [35]

    Cassar was a decision during a trial. The issue was the same as in Eastman; the Crown sought to tender transcripts of indistinct tapes of conversations recorded by a covert listening device. There was no issue as to the identity of the voices. Justice Sperling admitted the transcripts, relying in part on s 48 of the Evidence Act. His Honour did not consider s 79, citing Menzies and Butera as authority for the following proposition:

27. [36]

    Although in Leung the use of the ad hoc expert went beyond an opinion as to the words said on the tape and extended to identifying the person speaking, that was in the context of the important qualification at [45] of the judgment to which I have referred.

28. [37]

    In a number of decisions since Leung (including Irani) voice identification evidence has been admitted from a police officer who became familiar with the voice of the accused during the course of the investigation. The evidence has not been dealt with in those cases as being that of an ad hoc expert but rather simply as identification evidence given by a person familiar with the relevant voice.

29. [38]

    On any analysis, those cases are very different from the present case. In Irani, the appellant was convicted of four counts of supplying cocaine. In each case the sale of the drug was alleged to have been made to an undercover informant and recorded by police. The detective who gave voice identification evidence had spent “about two months” listening to recordings of the drug sales to the undercover informant. The detective had played the recordings many times for the purpose of preparing a transcript of them and had spent about four days replaying them to the undercover informant for him to confirm the accuracy of the transcripts.

30. [39]

    The principal issue in the trial was whether the undercover informant was lying when he identified the appellant as the person involved in the sale of the drugs. The detective’s evidence was that, when the appellant and his co-offender presented themselves at the police station, he “immediately identified their voices”. The evidence was voice identification evidence which the detective was able to give because, before hearing the appellant’s voice at the police station, he had become very familiar with it from repeatedly listening to the tapes. The evidence may well have been admissible without resort to s 79 of the Evidence Act.

31. [40]

    In any event, the appellant submits that the present case is distinguishable from Irani since, in that case, the detective had spent two months repeatedly listening to recordings for the purpose of transcribing them. It was that lengthy undertaking, which could not practicably be replicated by the jury, from which he acquired the experience by reason of which he could properly be classified as having ad hoc expertise.

32. [41]

    The evidence in the present case was admitted on a different premise. The fact in issue was whether the voice on the DHL tapes was the voice of the appellant. Federal Agent Succar professed no prior familiarity with the appellant’s voice and had acquired no specialised experience beyond that which the jury could itself acquire. His only familiarity with the appellant’s voice was that which he acquired for the purpose of constituting himself an ad hoc expert to prove the fact in issue. He did so by listening to the very evidence the Crown intended to put before the jury.

33. [42]

    As already noted, the Crown acknowledged at the pre-trial directions hearing that the comparison of the 21 disputed DHL calls and the calls from the gaol was a task the jury could (“would have to”) make themselves. Indeed, it appears at that point that the Crown did not consider Federal Agent Succar to have any relevant expertise. Leaving aside his putative specialised knowledge acquired as “an Australian with a Lebanese background”, his assertion of identity was founded on material no different from the material available to the jury. To that extent, his evidence was irrelevant and should not have been received for the reasons explained by the High Court in Smith v R [2001] HCA 50; 206 CLR 650 at [10] to [12].

34. [43]

    The Crown submitted that reliance on Smith in the present case is misplaced for two reasons. First, it was noted that Federal Agent Succar had listened to a greater number of calls than were made available to the jury. Of the 142 calls listened to by him, only 52 were ultimately tendered in the trial (the Crown explained that the tender of a smaller number of calls was to ensure that details prejudicial to the appellant were not before the jury). That submission entails hindsight reasoning. As already noted, it was initially acknowledged by the Crown at the trial that the jury could make the relevant comparison itself and that there would be no expert evidence. The Crown’s decisions to qualify Federal Agent Succar as an expert, and then to tender fewer calls than he had listened to, came after that concession was made.

35. [44]

    Secondly, the Crown submitted that Federal Agent Succar was better placed than the jury to make the voice comparison because of “his knowledge and experience with Arabic persons speaking English”. It is necessary to consider whether that cultural experience took the matter any further. In his statement, Federal Agent Succar said:

36. [45]

    The terms of the opinion expressed to be based on that specialised knowledge are set out earlier in this judgment. The opinion went little further in identifying particular features of the voice on the recordings than to note the use of the word “youse”. The use of that term is now recognised by the Macquarie Dictionary as the colloquial, albeit non-standard, form of the personal pronoun for the second person (both plural and singular). It is hardly a unique feature of speech.

37. [46]

    In his evidence, Federal Agent Succar expanded upon the issue of pronunciation, referring to the guttural tones that are required to speak the Arabic language that “may transpose into the way they speak English”. Implicitly, the contention was that, by reason of his upbringing in a Lebanese family in Australia, the completion of a unit of Arabic as an elective subject in an unrelated degree and the use of his Arabic language skills during community engagements as a police officer, Federal Agent Succar had specialised knowledge of the sound of English spoken by an Australian with a Lebanese accent. On its own, that specialised knowledge (if properly characterised as such) would not have qualified him to give evidence of an opinion as to whether the voice on the DHL tapes was that of the appellant but only as to whether it was the voice of an Australian speaking English with a Lebanese accent. It is doubtful whether that is an issue for expert opinion evidence.

38. [47]

    In my view, the voice identification evidence of Federal Agent Succar was inadmissible.

Concession in closing address

1. [48]

   Before determining what flows from that conclusion, brief reference should be made to the remaining three grounds of appeal. Each relates to the fact that, in his closing address, counsel for the appellant made a concession as to all but one of the disputed DHL calls. The appellant alleges that the concession was made by the barrister without instructions.

2. [49]

   The grounds of appeal based on that allegation are:

   1. (1)

      the appellant’s convictions constitute a miscarriage of justice in that the trial was unfair on the grounds that Counsel made concessions as to the voice identification evidence contrary to the appellant’s right to a fair trial under s 80 of the Constitution and the common law;

   2. (2)

      the appellant’s convictions constitute a miscarriage of justice in that the trial was unfair on the grounds that Counsel made concessions as to the voice identification evidence that deprived the accused of a chance of acquittal that was fairly open;

   3. (3)

      the appellant’s convictions constitute a miscarriage of justice in that the trial was unfair on the grounds that Counsel made concessions as to the voice identification evidence that amounted to material defect or irregularity in the trial.

3. [50]

   The relevant part of the closing address by the appellant’s barrister was as follows:

4. [51]

   In the absence of the jury, the judge then sought to confirm that she had correctly understood the import of the concession, as follows:

5. [52]

   In accordance with that exchange, the judge gave the jury the conventional warning as to identification evidence but confined it to the single call referred to by the barrister in his closing address. Before giving that warning, her Honour said “the accused does not dispute that he was the caller in 20 of the 21 calls” (SU18).

6. [53]

   The appellant swore an affidavit in the appeal stating that he did not give the barrister any instructions to admit that it was his voice on any of the DHL calls in evidence at the trial. He said that he was not asked about that matter by the barrister and did not give instructions for any concessions to be made regarding those calls. He was cross-examined by the Crown and did not resile from that evidence.

7. [54]

   The barrister was called by the Crown to give evidence in the appeal. He rejected the appellant’s affidavit evidence as being not truthful. However, the barrister acknowledged that he had no specific recollection of discussing with the appellant “accepting that it was the appellant’s voice in the 20 DHL calls” as to which the barrister made the concession to the jury (T8.22). He also acknowledged that any discussion as to “what was going to be able to be said on the appellant's behalf in the closing address” was “very, very limited” owing to the pressures the barrister was under at that point in the trial.

8. [55]

   On the strength of the barrister’s evidence, which impressed me as being both careful and frank, I am persuaded that the barrister’s concession made in closing address at the trial was not discussed with the appellant and that the appellant did not at any point indicate his agreement to the making of that concession.

9. [56]

   The result is that the voice identification evidence was not only wrongly admitted but was also not the subject of the required warning. The warning was given as to one of the 21 calls but its impact must have been dramatically diluted by the concession as to the other 20. The exchange between the trial judge and the barrister set out above and the content of the judge’s summing up suggest that her Honour had prepared on the basis that a careful and comprehensive warning should be given as to all of that material but, in the event, her Honour was expressly told it was not necessary to give that warning.

10. [57]

    In the particular circumstances of this case, once it is accepted that the concession was made without instructions, it is unnecessary to decide whether it was within counsel’s authority to make such a concession. The expert voice identification evidence having been wrongly admitted, the concession was made in a forensic context counsel should not have had to face. The unfairness to the accused was compounded by the fact that the judge did not extend the warning to all of the calls, which in turn was directly due to the concession. The combination of those circumstances has persuaded me that the trial miscarried. In light of that conclusion, I do not think it is necessary to determine the difficult question raised by ground 2. The substance of grounds 3 and 4 is effectively folded within what follows.

Application of the proviso

1. [58]

   The Crown submitted that, even if ground 1 were decided in favour of the appellant, the Court would nonetheless conclude that no substantial miscarriage of justice has actually occurred and would accordingly exercise its power under s 6(1) of the Criminal Appeal Act 1912 (NSW) to dismiss the appeal.

2. [59]

   The Crown submitted that, in accordance with the principles stated by the High Court in Weiss v R [2005] HCA 81; 224 CLR 300, this Court must itself decide whether a substantial miscarriage of justice has actually occurred. In Weiss at [41], the High Court said that the appellate court must make its own independent assessment of the evidence (that is, the whole of the record of the trial) and determine whether, making due allowance for the natural limitations of proceeding on the record, the offence was proved beyond reasonable doubt. The Court said:

3. [60]

   In Baiada Poultry Pty Ltd v R [2012] HCA 14; 246 CLR 92 at [22], the High Court acknowledged the prospect of cases in which, although persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt, an appellate court should nonetheless hold that the proviso is not engaged. The examples given were the case of a significant denial of procedural fairness or the case of a failure in a trial by judge alone to comply with a statutory requirement to give reasons.

4. [61]

   The Crown submitted that there is nothing about the present case or the grounds of appeal that would prevent the application of the proviso. I do not accept that submission. If both the voice identification evidence of Federal Agent Succar and the concession made by the barrister during his closing address are removed from consideration, the independent assessment of the evidence by this Court necessarily requires the undertaking of a task in all likelihood never undertaken by the jury in the present case. The Crown submitted that the appellant’s assertion that the jury “quite likely simply relied upon the concession and the evidence of Agent Succar” is “pure speculation”. I do not agree. The temptation to do so must have been overwhelming in the circumstances. Whilst care must be taken in reading too much into the length of time of a jury’s deliberations, it may be observed that the jury in the present case returned with verdicts of guilty to all charges less than two hours after retiring to deliberate.

5. [62]

   It should be acknowledged that, apart from the DHL tapes, the Crown relied on a considerable body of circumstantial evidence but I do not think it was seriously suggested that this Court could consider the proviso on that limited basis. As noted in Weiss, the proviso must be considered by reference to the whole of the record of the trial.

6. [63]

   It is clear that, in the present case, the task invited by the Crown would require this Court to listen to the 21 DHL tapes and the 52 gaol tapes tendered in the trial in order to determine a factual issue which the jury was, in effect, told it did not have to determine. That is not a situation contemplated in the principles stated in Weiss. It requires a new factual determination.

7. [64]

   The issue whether this Court should undertake that task has some analogy with an issue considered by the South Australian Court of Criminal Appeal, (albeit in a different context) in R v Compton and Barrett [2013] SASCFC 134; 237 A Crim R 177. The appellants were each convicted of the rape of a boy. The grounds of appeal alleged a misdirection (ground 1) and that the verdicts were unsafe and unsatisfactory and could not be supported having regard to the evidence (ground 2). In support of ground 2, counsel for one of the appellants invited the Court to view an audio-visual record of the evidence of the complainant at trial. It was submitted that the appellate court, in considering the unsafe and unsatisfactory ground, should form its own view as to his credibility and reliability.

8. [65]

   The Court did not consider it appropriate to embark upon that course (at [158] per Stanley J; Kourakis CJ and Peek J agreeing at [24] and [26] respectively). Justice Stanley said:

9. [66]

   Without viewing the video, the Court rejected ground 2, holding that the matters raised concerning the complainant’s reliability did not preclude satisfaction of the appellants’ guilt (at [162]). Ground 1 having been upheld (by majority), the Court accordingly ordered a retrial rather than entering a verdict of acquittal.

10. [67]

    Although the Court was there concerned with an unreasonable verdict ground rather than the application of the proviso, the concerns articulated by Stanley J reinforce my concerns in the present case. I do not think s 6(1) of the Criminal Appeal Act should be understood to contemplate, let alone dictate, that an appellate court should be, in effect, the first tribunal of fact to undertake the comparison of the voice on the DHL tapes with the voice on the gaol tapes unadorned by the voice identification evidence or the concession of counsel.

11. [68]

    For those reasons, the orders I propose are:

    1. (1)

       that the appeal against conviction be allowed;

    2. (2)

       that the conviction be quashed;

    3. (3)

       that there be a new trial;

    4. (4)

       that the Crown appeal be dismissed.