Ali v R

1. [1]

   the evidence of the interpreter that the “male voice” was the same voice in each of the Hindi calls was not admissible; and

2. [2]

   a miscarriage of justice arose because of the failure by the Crown to play the entirety of the Hindi calls to the jury.

3. [1]

   The opinion evidence was relevant: at [41].

4. [2]

   The opinion evidence was admissible pursuant to s 79 of the Evidence Act 1995 (NSW) as that of a “ad hoc” expert, bearing in mind that such opinion was reached in circumstances where:

5. [3]

   The proposition that the witness was in no better position than the jury to make the relevant determination could not be accepted. Whilst the interpreter had no qualifications or formal training in voice recognition, she had not been asked to recognise any voice. Her opinion as to the consistency of the male voice was based upon her qualifications as an interpreter and translator, as well as her familiarity with the Hindi language and its various nuances: at [53]-[58].

6. [4]

   The applicant received the benefit of a lengthy direction from the trial Judge in relation to identification evidence, in the course of which the members of the jury had been told that the interpreter was no more qualified than they were to make the relevant determination. That proposition was not correct and there was some doubt as to whether the identification direction which had been given by the trial judge was appropriate at all. However the terms of the direction were favourable to the applicant and no miscarriage of justice arose as a consequence: at [59]-[60].

7. [5]

   It is for the Crown to determine what evidence is to be called in a criminal trial. A decision by the Crown not to call particular evidence will only constitute grounds for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. In the circumstances of the present case, and bearing in mind that no application was made by trial counsel to have all of the Hindi calls played to the jury, no miscarriage of justice arose as a consequence of the Crown’s failure to do so. The observations of the trial judge to the effect that to have done so would have been a valuable waste of Court time were entirely appropriate: at [71]-[74].

8. [6]

   Per Fagan J: It is appropriate to dispose of the proceedings in this Court in a manner which deals with the grounds of appeal on their merits and which reflects the findings of the Court in respect of those grounds: at [77].

9. [1]

   BEECH-JONES CJ at CL: I agree with Bellew J and with the additional observations of Fagan J.

10. [2]

    BELLEW J: Following a trial before his Honour Judge Toner SC and a jury in the District Court of New South Wales, Mohammed Ali (the applicant) was found guilty of 11 counts of dealing in identification information with the intention of facilitating the commission of an indictable offence, namely dishonestly obtaining a financial advantage by deception, contrary to s 192J of the Crimes Act 1900 (NSW). The applicant was found not guilty of an offence of possessing holograms designed for making a false document, contrary to s 256(1) of the same Act.

11. [3]

    His Honour imposed an aggregate sentence of imprisonment of 7 years, with a non-parole period of 3 years and 6 months. That sentence expired on 24 February 2022.

THE APPLICATION FOR AN EXTENSION OF TIME

1. [4]

   The applicant seeks leave to appeal against his convictions and requires an extension of time in which to do so. A notice of intention to appeal was filed by the applicant on 24 May 2017 and was extended a number of times until it finally expired on 15 July 2018. The present application is therefore substantially out of time. The applicant relied on his affidavit of 17 June 2021, along with an affidavit of his solicitor Hisham Karnib, of 29 August 2022, in support of the application to extend time. Both of those affidavits were read without objection.

2. [5]

   For the reasons expressed by Fagan J [1] an extension of time should be granted.

THE CROWN CASE AT TRIAL

1. [6]

   Given that the grounds of appeal are confined to a discrete issue, it is not necessary to set out the entirety of the evidence adduced in the Crown case at the applicant’s trial. The circumstances giving rise to that issue may be shortly summarised.

2. [7]

   The Crown alleged that the applicant, along with a number of other persons, was part of a criminal enterprise dealing in personal information in a way which resulted in the production of false forms of identification, such as drivers’ licences and Medicare cards. Once produced, those forms of identification were used to open, or to attempt to open, false bank accounts.

3. [8]

   The Crown case against the applicant was entirely circumstantial. The evidence on which the Crown relied included intercepted telephone conversations. Some of those conversations were in English. However, 24 of them were in Hindi (the Hindi calls) and were between Tanveer Hussein (Hussein) and another person described a “male person”. On the Crown case, that male person was the applicant. The applicant denied that this was so.

4. [9]

   Each of the Hindi calls was translated into English by Madhu Agarwal, an accredited interpreter and translator who was called to give evidence by the Crown. 5 of the Hindi calls were played to the jury by the Crown in the course of Ms Agarwal giving evidence. However, Ms Agarwal’s evidence extended beyond the fact that she had listened to, and translated, the Hindi calls. The Crown adduced evidence from her, without objection, that the male voice in each of the Hindi calls was that of the same person. The Crown relied upon that evidence, in combination with other circumstances, to establish that the male voice speaking to Hussein in the Hindi calls was that of the applicant. The admission of this aspect of Ms Agarwal’s evidence gives rise to the first ground of appeal. The failure of the Crown to play the entirety of the Hindi calls to the jury gives rise to the second.

THE EVIDENCE OF MS AGARWAL

1. [10]

   Ms Agarwal commenced her evidence by detailing her background and qualifications, [2] in the course of which the trial Judge enquired of the parties [3] whether Ms Agarwal’s expertise was in question. Whilst counsel for the applicant (who was not senior counsel for the applicant before this Court) initially gave a somewhat equivocal response to that question, [4] she ultimately accepted that Ms Agarwal had the necessary qualifications and experience to enable her to give evidence of translating the conversations from Hindi into English. As to Ms Agarwal’s evidence of the uniformity of the male voice in the Hindi calls, counsel initially put the applicant's position in the following exchange with the trial judge: [5]

2. [11]

   As will become apparent, and despite the foreshadowed “problem”, the entirety of Ms Agarwal’s evidence was ultimately admitted without objection.

3. [12]

   The following exchange then took place: [6]

4. [13]

   After his Honour commented that there was “such a thing as an expertise in being able to identify voices”, [7] and that there were “people who were expert in this field”, [8] the following further exchange took place: [9]

5. [14]

   Ms Agarwal then gave evidence that she had prepared transcripts of each of the Hindi calls, in which one of the participants had been identified as Hussein, and the other had been identified as “a male voice”. [10] Having said that she listened to the Hindi calls a number of times, [11] and consistent with the position adopted by counsel for the applicant in the bolded passages of the above exchange, Ms Agarwal gave the following evidence without objection: [12]

6. [15]

   At that point his Honour asked: [13]

7. [16]

   His Honour then said the following to the jury: [14]

8. [17]

   Counsel for the applicant took no issue with that direction.

9. [18]

   Ms Agarwal’s evidence continued, again without objection: [15]

10. [19]

    At that point his Honour asked: [16]

11. [20]

    Ms Agarwal’s evidence continued, again without objection: [17]

12. [21]

    At that point, his Honour asked: [18]

13. [22]

    Consistent with what the Crown had foreshadowed, 5 of the Hindi calls were then played to the jury. [19] That course was taken without objection and importantly (from the point of view of ground 2) without any application being made by counsel for the applicant that all 24 calls be played. At the end of those five calls being played, Ms Agarwal confirmed her evidence that it was the same male person speaking with Hussein in all 24 of the Hindi calls. [20]

14. [23]

    In cross-examination, Ms Agarwal gave the following evidence: [21]

15. [24]

    His Honour then asked: [22]

16. [25]

    The cross-examination then continued: [23]

17. [26]

    The passages set out in [23] and [25] above represent the entirety of the cross-examination of Ms Agarwal. At the conclusion of that cross-examination, His Honour asked the following: [24]

THE SUMMING-UP OF THE TRIAL JUDGE

1. [27]

   The directions given by trial Judge to the jury included the following: [25]

2. [28]

   In answer to his Honour’s query, the Crown confirmed that nothing further needed to be added to the direction which had been given.

3. [29]

   Notwithstanding that confirmation, his Honour continued: [26]

4. [30]

   When his Honour came to summarise the positions of the parties in respect of Ms Agarwal’s evidence that the male voice was the same in each of the 24 Hindi calls, he first addressed the position of the Crown: [27]

5. [31]

   In terms of the applicant’s position, his Honour said the following to the jury: [28]

THE APPLICATION OF RULE 4.15

1. [32]

   Because no issue was taken by trial counsel in relation to any of the matters which form the basis of either ground of appeal, leave to rely on each ground is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). In IW v R, [29] with the concurrence of Bathurst CJ and Fullerton J, I said the following regarding the operation of the predecessor to r 4.15 (which was in essentially identical terms):

Submissions of the applicant

1. [33]

   Senior counsel for the applicant submitted that the evidence of Ms Agarwal that the male voice in each of the Hindi calls was the same, was not relevant. He submitted that Ms Agarwal was in no better position than the jury to make that determination and that in such circumstances, no issue of expert opinion evidence arose. In senior counsel’s submission, the evidence of Ms Agarwal that the male voice was the same in each of the Hindi calls “failed at the section 55 stage” or, in other words, was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW) (the Act).

2. [34]

   Senior counsel further submitted that in the absence of some specialised knowledge or expertise in voice identification, Ms Agarwal’s opinion that the male voice was the same in each conversation was simply not admissible. Senior counsel emphasised that one of the conditions of the admissibility of expert opinion evidence is that such evidence be based wholly or substantially on the specialised knowledge of the expert. [30] It was submitted that Ms Agarwal’s qualifications and experience as an interpreter and translator did not enable her to express the opinion that she did, and that she had not, in the course of translating the conversations, developed any “ad hoc” expertise which rendered the evidence admissible.

Submissions of the Crown

1. [35]

   The Crown emphasised that no objection had been taken to Ms Agarwal’s evidence by trial counsel, and pointed out that the applicant’s case at trial was that even if the male voice was the same in each of the 24 conversations, the person speaking was not the applicant.

2. [36]

   The Crown also pointed to the fact that Ms Agarwal had repeatedly listened to the calls in Hindi for the purposes of translating them. It was submitted that in those circumstances, and bearing in mind her familiarity with the pitch, tone and speed of the Hindi language, Ms Agarwal was properly qualified to give the evidence and, moreover, was in a substantially more advantageous position than the jury to assess whether the male voice was the same in each case.

CONSIDERATION

1. [37]

   It is appropriate to commence consideration of this ground by setting out three relevant statutory provisions.

2. [38]

   To begin with, s 55 of the Act is in the following terms:

3. [39]

   Secondly, s 78 is in the following terms:

4. [40]

   Section 79(1), which incorporates an exception to the opinion rule in s 76, is in the following terms:

5. [41]

   In support of the submission that the evidence was not relevant, senior counsel for the applicant relied on the decision of the High Court in Smith v The Queen [31] in which it was concluded that evidence of identification of the accused which had been given by a police officer was irrelevant and inadmissible. The basis of that determination was that such evidence was based on material that was not different, in any substantial way, from what was available to the jury. [32] For the reasons set out below, that is not the position in the present case.

6. [42]

   Moreover, that it was the applicant who was speaking with Hussein in each of the 24 Hindi calls was a fact in issue within the meaning of s 55 of the Act. The evidence of Ms Agarwal that it was the same male voice speaking to Hussein on each occasion was relied upon by the Crown, in combination with other evidence, to prove that fact in issue. Viewed in that way, the evidence of Ms Agarwal was relevant. The real question whether her evidence was admissible, pursuant to s 79 of the Act, as evidence of opinion. In answering that question it is appropriate to refer to two authorities.

7. [43]

   In R v Leung [33] an interpreter was asked firstly, to translate into English recorded conversations (recorded on what was referred to as “DAT tapes”) which had been conducted in (predominately) Cantonese and Mandarin. Having done so, the interpreter provided a transcript in English in which he identified three different voices. There was no challenge to that evidence. Secondly, the interpreter was asked to listen to tape recordings of conversations between the accused and police and to compare the voices in those conversations with those on the DAT tapes. Having done so, the interpreter gave evidence that two of the three voices he had identified on the DAT tapes were those of the respective appellants.

8. [44]

   The qualifications of the witness as an interpreter were not in issue and, as is the position in the present case, no objection was taken to the interpreter’s evidence of having translated the conversations into English. However, it was argued that his evidence of voice attribution was evidence of opinion in respect of an area in which he had no specialised knowledge based on training study or experience, and was therefore not admissible. Simpson J (as her Honour then was) concluded that evidence was, in the circumstances, admissible under s 79 of the Act (and not as a lay opinion pursuant to s 78 as the trial Judge had concluded).

9. [45]

   Her Honour's analysis commenced with a consideration of the decision of the New Zealand Court of Appeal in R v Menzies, [34] in which it was held that a police officer who had repeatedly listened to recordings had acquired expertise in deciphering what could have been substantially unintelligible to anybody who had not played those recordings to the same degree. Simpson J went on to observe that the notion of an “ad hoc” expert which had been recognised in Menzies had been endorsed by the High Court in Butera v Director of Public Prosecutions (Vic). [35]

10. [46]

    In reaching the conclusion that s 79 of the Act was sufficiently wide to accommodate such notion and render the evidence admissible, Simpson J [36] made specific reference to the fact that the interpreter had not engaged in a simple exercise of voice comparison, but had brought to bear his expertise on the task that he had been given. This was reflected in the fact that he had taken into account matters such as the pitch and modulation of the voices, the use of language and accent, and the speed of the speech. Her Honour went on to say: [37]

11. [47]

    Spigelman CJ and Sperling J agreed with Simpson J, although both reserved their positions as to the scope and effect of s 78 of the Act.

12. [48]

    A similar issue was subsequently considered by this Court in Nasrallah v R; R v Nasrallah. [38] In that case, the appellant had pleaded not guilty to a number of counts of importing a border controlled drug. The evidence relied upon by the Crown included recordings of 21 telephone calls which had been made to a freight forwarder enquiring as to the progress of the imported packages which contained the drug. The content of those conversations implicated the caller in the importation. Whilst on remand following his arrest, the appellant had made a number of telephone calls from the correctional facility in which he was held and which, according to standard procedures, were recorded. Police obtained a number of those recordings for voice comparison purposes, in circumstances where it was not disputed that the appellant was the caller.

13. [49]

    Evidence was given by a Federal agent that he had spoken to the appellant twice, and had a lawfully recorded of one of those conversations. Over objection by trial counsel for the appellant, evidence was also given by the same Federal agent to the effect that the voice of the caller in the calls made to the freight forwarder was the voice of the appellant.

14. [50]

    McCallum J (as her Honour then was) concluded that the evidence was wrongly admitted pursuant to s 79 of the Act. [39] In reaching that conclusion, her Honour acknowledged [40] that for the purposes of s 79, an expert witness can be a person who has acquired his or her specialised knowledge “ad hoc” or, in other words, for the very purpose of the legal proceedings in which the opinion evidence is relied upon. Having referred to the observations of Simpson J in Leung [41] , her Honour observed [42] that, in contrast with the evidence of the Federal Agent, the task undertaken by the interpreter in Leung was highly specialised and had invoked the interpreter’s considerable specialised knowledge in foreign language and accent. I interpolate that on the evidence in the present case, similar observations could be made regarding the highly specialised task in which Ms Agarwal engaged, and her specialised knowledge of the Hindi language.

15. [51]

    McCallum J then continued: [43]

16. [52]

    Bearing in mind these authorities, it is important to emphasise a number of aspects of Ms Agarwal's unchallenged evidence.

17. [53]

    First, Ms Agarwal said that in preparing the transcripts of the conversations, she had listened to them a number of times, [44] over a period of approximately 15 days, [45] for between 3 and 7 hours each day. [46]

18. [54]

    Secondly, Ms Agarwal’s opinion that the male voice speaking to Hussein in the Hindi calls was the same voice in each case was formed, at least in part, because the calls were in Hindi, a language with which she was particularly familiar. There was nothing about Ms Agarwal’s English translation of the calls which caused her to form her opinion that the male voice was consistently the same. [47]

19. [55]

    Thirdly, Ms Agarwal drew on her experience and relied upon the pitch, tone and accent of the male voice in each of the Hindi calls to form her opinion, in circumstances where her evidence was that such pitches and tones are specific to the Hindi language. [48]

20. [56]

    Ms Agarwal’s evidence was not of the kind which was found to be inadmissible in Nasrallah. Rather, it was highly specialised, and akin to that of the expert in Leung who, in reaching his opinion, had taken into account the volume, the pitch and modulation of the voices, and the accent and speed of the speech.

21. [57]

    In all of these circumstances, I am unable to accept the proposition that Ms Agarwal was in no better position than the jury to make the determination that she made. Clearly, her familiarity with the nuances of the Hindi language was part of the basis of her opinion. A lay person would be entirely unfamiliar with such matters. Her position in all of these respects may be likened to that of the expert in Leung. Ms Agarwal was a person who was familiar with the relevant language to a sufficient degree to enable her to bring a greater understanding to the task of voice comparison than a person without that skill. The fact that Ms Agarwal was not qualified or formally trained in voice recognition is not to the point.

22. [58]

    As I have previously noted, the evidence of Ms Agarwal was admitted without any objection, and her cross-examination was, to say the least, brief. That cross-examination, such as it was, gives no indication that counsel for the appellant at trial perceived the existence of any differentiation between the voices of the male person in the Hindi calls which might have formed the basis of a challenge to Ms Agarwal’s opinion. The overwhelming inference is that the absence of any objection to the evidence of Ms Agarwal was the result of a deliberate forensic decision made by trial counsel.

23. [59]

    Moreover, and leaving aside the absence of any objection to Ms Agarwal’s evidence, the applicant received the benefit of a lengthy direction from the trial Judge in relation to identification evidence. In the course of giving that direction, the trial Judge suggested a number of shortcomings in Ms Agarwal’s evidence, many of which had not been elicited in cross-examination. Moreover, in the course of that direction, the jury were told (inter alia) Ms Agarwal was “no more or less qualified than you” to express an opinion as to whether the male voice was the same. For the reasons I have set out, that proposition was not correct.

24. [60]

    There may be some doubt as to whether the identification direction which was given by the trial Judge was appropriate at all, given that on one view, Ms Agarwal did not actually identify any voice. However it is not necessary to take this issue any further, as the direction was overwhelmingly favourable to the applicant, and did not disadvantage him in any way whatsoever.

25. [61]

    For all of these reasons, Ms Agarwal’s evidence was admissible under s 79 of the Act. Leave to rely on this ground of appeal should be refused.

Ground 2 – A miscarriage of justice was occasioned by the failure to play audio recordings of intercepted telephone conversations in the Hinidi [sic] language, said to involve the applicant, and upon which the Crown relied to establish the applicant's guilt

1. [62]

   Before addressing the substance of this ground, it is necessary to make a number of preliminary observations.

2. [63]

   Prior to the hearing before this Court, the applicant relied on a single ground of appeal. Upon the commencement of the hearing, senior counsel for the applicant made a number of submissions which fell well outside the parameters of that ground. When it became apparent that a further ground was to be relied upon, senior counsel was given the opportunity to articulate its terms in writing. As required by Practice Note SC CCA 1, a notice had been filed and signed by senior counsel for the applicant in which it was unequivocally stated that the applicant would rely only on ground 1, and the submissions which had been filed. That notice was dated 22 August 2022, approximately 7 days before the hearing of the appeal. Given what transpired, it is necessary to emphasise the importance of the Court being assisted by proper adherence to the Practice Note.

3. [64]

   The terms of the ground as it is pleaded are apt to confuse in two particular respects. First, the ground asserts that a miscarriage of justice was occasioned by “the failure” to play audio recordings. Although not specifically stated, it became apparent during the course of argument that the failure relied upon was said to be that of the Crown.

4. [65]

   Secondly, the ground relies on the Crown’s failure “to play audio recordings of intercepted telephone conversations in the Hinidi [sic] language, said to involve the applicant”. As I have already pointed out, 5 of the 24 Hindi calls were in fact played to the jury. I have therefore proceeded on the basis that a miscarriage of justice is said to have arisen as a result of the failure by the Crown to play the remaining 19 calls.

5. [66]

   Given that the Crown was never, at any point, asked to take that a course at the trial, r 4.15 also applies to this ground of appeal.

Submissions of the applicant

1. [67]

   Put simply, senior counsel for the applicant submitted that in circumstances where the evidence of Ms Agarwal in respect of the voices on the Hindi calls was central to the Crown case, the Crown had an obligation to play the entirety of those calls to the jury. It was submitted that the failure to do so gave rise to a miscarriage of justice.

2. [68]

   In advancing those submissions, senior counsel expressly conceded that he had not listened to any of the calls himself. Notwithstanding that, he submitted that the Crown had an obligation to play them all to the jury at least once. That obligation, it was submitted, arose from the fact that the Hindi calls were evidence upon which the Crown relied to establish the applicant's guilt.

Submissions of the Crown

1. [69]

   The Crown submitted that it was under no such obligation and that to have played the entirety of the Hindi calls to the jury would have been a waste of time, particularly in view of the fact that Ms Agarwal’s evidence was not challenged. The Crown further submitted that taking such a course would have been an exercise lacking in utility, given that it was highly unlikely that any member of the jury would have understood the Hindi language.

Consideration

1. [70]

   For a number of reasons this ground fails.

2. [71]

   To begin with, the Crown made it clear in the course of a lengthy exchange with the trial judge [49] that it was proposed that a sample of the calls would be played. No objection was raised by counsel for the applicant to that course being taken and no application was made that the Crown play the entirety of the recordings. That position was entirely consistent with the fact that Ms Agarwal’s evidence was not challenged.

3. [72]

   In the circumstances, there is an overwhelming inference that counsel for the applicant formed the view that playing the entirety of the calls would have been of no forensic advantage to the applicant’s case. There is no indication whatsoever that counsel perceived that there was any differentiation in the male voice in the Hindi calls which might form the basis of a challenge to Ms Agarwal’s evidence, nor is there any indication that counsel had formed the view that playing all of the Hindi calls would have led to the jury perceiving any difference between the male voice in each case. Moreover, if counsel had formed the view that playing all of the recordings would go some way to undermining Ms Agarwal's evidence of uniformity of voice (even though that evidence was not challenged), it was open to counsel to play them in the defence case. She did not do so.

4. [73]

   Further in my view, and leaving aside that there was no request to do so, the Crown was under no obligation to play the entirety of the Hindi calls. The principles which govern the Crown’s responsibility to determine what witnesses are to be called in a criminal trial are well settled. [50] In my view, those principles apply to the determination of what evidence is to be called generally. They include the proposition that the decision of the Crown not to call a particular person to give evidence will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. In the circumstances of the present case, the Crown was entitled, in the absence of any challenge to the evidence of Ms Agarwal and the absence of any request to play all of the recordings, to take the view that no issue arose in respect of any of that evidence. The proposition that in those circumstances, the Crown somehow had an obligation to play 24 recordings to the jury, all of which were in a foreign language, should be firmly rejected. This is particularly so where the Crown had suggested to the trial judge that such a process would be likely to take some days. The response of the trial judge, [51] namely that doing so would “tend to bring the law into disrepute”, and that it was “absurd” because it did not “advance matters at all”, was entirely accurate.

5. [74]

   In all of these circumstances, no miscarriage of justice could possibly be said to have arisen.

6. [75]

   Leave to rely upon this ground should be refused.

Conclusion

1. [76]

   In light of the views that I have reached regarding the two grounds of appeal, and for the additional reasons expressed by Fagan J, I propose the following orders:

   1. (1)

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

   2. (2)

      The appeal is dismissed.

2. [77]

   FAGAN J: I agree with Bellew J. In view of the extent to which the applicant is out of time to appeal, as summarised at [4] above, and taking into account the lack of merit in the grounds, one available course would be to refuse an extension of time. However, it seems appropriate to dispose of the proceedings in this Court in a manner that will more clearly and appropriately reflect the finality of the criminal process concerning him. It is proposed that the time within which to appeal against conviction be extended in accordance with the application to this Court, so that the grounds of appeal may dealt with finally on their merits. The appeal should then be dismissed.