New South Wales Supreme Court CITATION : Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 11) [1999] NSWSC 321 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70036/98; 70216/98; 70217/98 HEARING DATE(S) : 23/03/99 - 08/04/99 JUDGMENT DATE : 14 April 1999 PARTIES : Regina v Leanne Cassar; Regina v Emad Sleiman; R v Hassan Kalache JUDGMENT OF : Sperling J For Crown: M L Barr COUNSEL : For Accused Leanne Cassar: D N Stewart For Accused Emad Sleiman: K G Horler AM QC For Accused Hassan Kalache: B T Stratton QC For Crown: F Gates (DPP NSW) SOLICITORS : For Accused Leanne Cassar: John Bettens & Co For Accused Emad Sleiman: Ross Hill & Associates For Accused Hassan Kalache: Trevor Nyman & Company CATCHWORDS : CRIMINAL LAW - evidence identification of the accused in recorded conversation - voice identification. ACTS CITED : Evidence Act 1995 CASES CITED : Brotherton (1992) 29 NSWLR 95; Brownlowe (1987) 7 NSWLR 461; Bulejcek (1996) 135 ALR 517; Smith [1984] 1 NSWLR 462; Smith (1987) 7 NSWLR 444; Heuston (CCA (NSW), 20 June 1995, unreported); DECISION : See paragraph No 38. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SPERLING J Wednesday, 14 April 1999 70217/98 - Regina v Hassan Kalache 70216/98 - Regina v Emad Sleiman 70036/98 - Regina v Leanne Cassar JUDGMENT NO. 11 HIS HONOUR: 1 On 9 April 1999 I ruled that evidence which the Crown wished to adduce as to the identity of Mr Sleiman and Ms Cassar in certain covertly recorded conversations was admissible, subject to arguments yet to be put on a basis not argued to date. 2 The conversations were recorded via listening device and telephone intercept and occurred at 8/42 Newman Street, Merrylands. The speakers recorded allegedly include, so far as is relevant, the accused, Mr Sleiman and Ms Cassar. Ms Cassar, through her counsel, conceded that the voices included his client as alleged by the Crown. Mr Sleiman did not concede that the voices in the recorded conversations were his or Ms Cassar's. 3 The evidence sought to be led by the Crown in proof against Mr Sleiman that the conversations did include Mr Sleiman and Ms Cassar is oral evidence by Det Sgt McNab (which I heard on the voir dire), evidence by a Mr Rizk (whose statement was tendered on the voir dire) and other evidence which for the purpose of the ruling it was conceded the Crown would be in a position to call. 4 I will deal first with the evidence tending to establish Mr Sleiman's voice. 5 The evidence of Det Sgt McNab, as given on the voir dire, was that between 3 December 1997 and 11 December 1997 he listened to recorded conversations which included some hours of a male voice. He then met Mr Sleiman in person on 11 December 1997 when a search warrant was executed. A video of that search, carried out in Mr Sleiman's presence, was tendered on the voir dire. Mr Sleiman spoke on that occasion. Det Sgt McNab said Mr Sleiman's voice, as heard on 11 December 1997, was the same as the male voice he had heard in the recorded conversations. Det Sgt McNab said he then listened to conversations recorded after 11 December 1997. On 8 June 1998, Det Sgt McNab again attended on the execution of a search warrant at the flat. Mr Sleiman spoke again on that occasion. Again, a video record was made. Det Sgt McNab said additional conversation with Mr Sleiman occurred off camera. Det Sgt McNab said Mr Sleiman's voice on that occasion was the same as in the recorded conversations. 6 The statement by Mr Rizk, tendered on the voir dire, was to the effect that he knew Mr Sleiman before these events. He said a taped conversation purporting to be a record of a telephone conversation between him and Mr Sleiman, being one of the recorded conversations which the Crown wished to put into evidence, was a conversation with Mr Sleiman. 7 The facts as to which it was conceded the Crown was in a position to adduce evidence were as follows: · That various persons, including Mr Sleiman and Ms Cassar, came and went from the home unit block or building, as distinct from Unit 8 in particular. · That conversations occurred in the flat where persons used and identified the other by the names of Emad and Leanne (being the first names of Mr Sleiman and Ms Cassar). · That a conversation occurred on 4 December 1997 between a male person and Merrylands police officers unrelated to this matter where the male person was spoken to about other criminal conduct. (The Crown conceded that this was of no value without further evidence.) · That the flat was leased in the name of Mr Sleiman's sister. 8 The concession concerning Mr Sleiman and Ms Cassar going in and out of the building is supplemented by the Crown being able to prove that the times of entry into and/or exit from the particular flat (as indicated by the opening and closing of the flat door) and/or the times of commencement and/or termination of conversations in the flat are conformable with the times of entry into and/or exit from the flat building by Mr Sleiman and Ms Cassar (Tr 220). (I have taken what was stated in court in the disjunctive sense in which I have paraphrased it.) The Crown Prosecutor said he understood that was not in issue (Tr 220). There was no dissent by counsel for the accused. I should take this as common ground. 9 In Smith (1987) 7 NSWLR 444, the accused was charged with murder and other offences committed on the same occasion. A witness heard voices, one of which implicated the speaker in the offences charged. Nine months later, the accused conducted his own defence in court. The witness listened to him in court cross-examining another witness. She gave evidence that within five minutes or so she recognised the accused's voice as that of the assailant she had heard at the time of the crime nine months earlier. She said the voice she remembered at the time of the crime was a rough Australian voice, gruff at times, loud at times but at times going to a higher pitch, a bit whiny, a wingy sort of voice and the manner was rude, pushy and very domineering. The evidence was left to the jury. 10 The accused was convicted and appealed. Lee J (whom Street CJ and Maxwell J agreed) said that the trial judge was right to leave the evidence to the jury. The appeal was allowed because of misdirection not presently relevant. In the course of his judgment Lee J (at 450) quoted the following passage from the summing up: "Basically then for identification to be reliable of a voice with which one is not previously familiar, the law requires that the voice unlike the appearance of a person - must be found to have very distinctive characteristics, very distinctive characteristics, firstly because of the intrinsic qualities of the voice and secondly because of the circumstances in which it was used so that the totality of the qualities of the voice, both in intrinsic qualities and those brought out by its use in those circumstances, make it readily recognisable to a witness who is not previously familiar with that voice." 11 It is apparent from what follows in Lee J's judgment that he regarded that as a correct statement of legal principle. 12 The requirement of distinctive characteristics did not apply where the witness was familiar with the voice prior to the event. 13 The facts of Brownlowe (1987) 7 NSWLR 461 (decided eight months after Smith) were similar. Two witnesses heard the voice of one of the offenders at an armed robbery. At the trial the witnesses heard the voice of the accused. In this case though, they were not so sure about the identification as in Smith. They described the voice of the accused relevant at the crime as softly and calmly spoken and as having an Australian accent. One witness said the voice of the accused was similar and the other that she was fairly certain it was the same voice because it was so similar. The accused was convicted and appealed. 14 On appeal Hunt J (with whom Finlay and Brownie JJ agreed) referred to a lengthy judgment given by the trial judge, O'Brien J, in Smith (1984) 1 NSWLR 462 concerning the admissibility of voice identification evidence. Hunt J summarised part of that judgment as follows: "Mainly basing his decision upon the American authorities, O'Brien CJ of Criminal Division concluded (at 477) that a witness giving evidence identifying the accused by his voice must either have recognised that voice at the time of the crime because of his previous familiarity with it or, where he had no such previous familiarity, have recognised that voice at some subsequent occasion because it was very distinctive when he first heard it at the time of the crime. When dealing with the facts of that particular case, his Honour twice referred (at 482, 485) to the need for the evidence of a witness on this issue to be that the distinctive features of a voice first heard at the time of the crime were such that the jury could accept that an indelible mental impression had been left in the witness's mind, thus permitting the conclusion safely to be drawn that the two voices were the same." 15 Hunt J went on to say that O'Brien J's judgment was approved on appeal in Smith. I have not noticed where that occurred, but the judgment is to same effect as the summing-up which was approved on appeal. The alternative requirements of previous familiarity and distinctive character were adopted in Brownlowe. Because there was no previous familiarity, the test was distinctive character. The case failed the test and the conviction was quashed. 16 The same approach in point of principle was taken in Brotherton (1992) 29 NSWLR 95. The conviction for a sexual assault, was quashed because of a misdirection not presently relevant. The issue as to whether there should be a new trial gave rise to the question as to whether there was admissible evidence of identification. 17 The complainant had spoken to the accused for about ten minutes two days before the assault and the assailant had spoken at the time of the assault. She described the voice as a really low, husky voice. 18 Hunt CJ at CL (with whom Wood and Sharpe JJ agreed) referred to Smith and Brownlowe. He restated the alternatives (at 106), introducing - I think for the first time - the word "very" into the first alternative ("where the witness is very familiar with the voice before hearing it at the crime"). His Honour went on to say (at 106): "But it is clear that the particularly distinctive characteristics of the voices were required in both cases in order to enable it to be recognised by the witness for the first time subsequently to the crime. Such characteristics are not said to have been required in order to enable a voice which was already familiar to the witness to be recognised at the crime. In the second situation, the recognition occurs at the time of the crime; it does not occur as a result of the circumstances in which recognition for the first time usually occurs subsequently. Where someone is already familiar with the voice before the crime, the recognition does not depend upon any particularly distinctive characteristics of the voice; it occurs as a result of that familiarity. A good test is to ask a person to describe the distinctive characteristics of his or her spouse's voice. Such a description is unlikely to be forthcoming with any precision, but the voice will nevertheless always be recognisable by that person. Accordingly, I reject the argument that, in a case where a witness recognises the already familiar voice of the accused at the time of the crime, his or her evidence is inadmissible unless it is shown that the voice was sufficiently distinctive as to make its characteristics memorable." 19 There was other evidence in Brotherton tending to prove the identity of the offender, including a tattoo noticed by the complainant. His Honour went on (at 106): "The issue which arose as to the admissibility of the complainant's evidence in the present case depended upon the extent of her familiarity with the appellant's voice. The complainant had spoken to the appellant only the once before the assault upon her, two days earlier and then only for ten minutes. She had not spoken to him when she saw him again earlier on the day when the offences were committed. Yet she said that the man who had sexually assaulted her had the same voice as that which she had heard earlier, and that the voice was one of the factors which had led her to recognise him at the time. It was the appellant whom she named when she woke the foreman shortly after the offences and made a complaint. If that had been all, I would have considerable doubt whether the complainant's familiarity with the appellant's voice would have been sufficient for the voice identification by way of recognition to go to the jury." 20 The use of other evidence to support evidence of voice identification is to be noted. The same approach was taken in Heuston (CCA NSW, 20 June 1995, unreported) (per Hunt CJ at CL, McInerney and Smart JJ). 21 The authorities to which I have referred appear to limit the familiarity test to familiarity prior to the occasion in question and the distinctive quality test to recognition subsequent to the occasion in question. I do not see why this should be so. A voice with distinctive qualities may be heard, remembered and then recognised on a later occasion. That point does not, however, arise in the present case. 22 It should also be noticed that, despite the scant evidence of prior familiarity, Hunt J in Brotherton left open whether the evidence of voice identification would have been sufficient to go to the jury on its own. He doubted that it would have been, but he did not say it would not. 23 An approach contrary to the Smith line of authority, adopted in Victoria and Tasmania, is that the degree of familiarity and the distinctiveness of quality do not go to the admissibility of the evidence but only to the weight a jury might give to it. (the references are given in Bulejcik (1996) 135 ALR 517, 530). Under that approach, those considerations would, of course, remain relevant to the question as to whether the evidence should be excluded on discretionary grounds. 24 Bulejcik concerned the capacity of a jury to make a comparison between the accused's voice in a recorded conversation and as heard in court. I read the judgment of Brennan CJ in Bulejcik as supporting the alternative approach. On the other hand, Toohey and Gaudron JJ, cited Smith, Brownlowe and Brotherton with apparent approval (at 530). (I would mention that they also stated the familiarity test as applicable to prior experience of the accused's voice and the distinctive quality test as applicable to subsequent experience of the voice.) McHugh and Gummow JJ said it was arguable that Smith was wrongly decided and appeared to favour the Victorian approach, but they found it unnecessary to decide that question. 25 There was no majority view in Bulejcik upholding or over-ruling Smith. Furthermore, the views on Smith in Bulejcik were all obiter, except possibly that of Brennan J. 26 No authority as to any threshold test other than I have mentioned was cited in argument before me. The Smith line of authority is binding on me, if applicable. 27 The applicability of the Smith line of authority to the present case is not entirely clear but clear enough. This is not a case of identifying the accused as the person present at the crime by identification of his voice. This is a case of identifying the speaker in recorded conversations heard by the witness as the accused, who subsequently speaks to the witness person to person. Det Sgt McNab asserts a familiarity with a voice by listening to recorded conversations and says that, on meeting Mr Sleiman subsequently, he recognised Mr Sleiman's voice as that voice. The difference is apparent. But there is no distinction in principles. Indeed, it was common ground in the submissions by the Crown Prosecutor (Tr 228) and by counsel for Mr Sleiman (Tr 243) that there was a threshold test for the admissibility of voice identification evidence and that the test in this case - by whatever route - was familiarity. In my view, the Smith line of authority should be applied, and familiarity is the test. 28 As to familiarity, I take the Smith line of authority to refer to the kind of familiarity that would enable a person to recognise the voice on a later occasion without necessarily being able to specify distinctive characteristics in the voice. 29 Counsel for Mr Sleiman submitted, first, that prior exposure to the voice in the recorded conversations was not sufficient to satisfy the test of familiarity, and that exposure at the meetings when search warrants were executed was inadequate to enable the witness to make an identification based on prior exposure to the voice. 30 I disagree. Det Sgt McNab's exposure to Mr Sleiman's voice was substantial in relation to each of the following: exposure to recorded conversations prior to 11 December 1997, in person on 11 December 1997, to recorded conversations after 11 December 1997, and in person on 8 January 1998. Exposure prior to 11 December 1997 was sufficient to make the witness familiar with Mr Sleiman's voice. Subsequent exposure reinforced that familiarity. 31 Having regard to the extent of exposure prior to and on 11 December 1997, a jury, properly instructed and appropriately warned, could reasonably find that the degree of familiarity acquired prior to 11 December 1997 and the extent of exposure on 11 December 1997 were sufficient to enable the witness to recognise Mr Sleiman's voice, when he met him in person on 11 December 1997, as the voice in the recorded conversations prior to 11 December 1997. 32 Having regard to the extent of exposure on those occasions and in subsequent recorded conversations and to the extent of exposure on 8 January 1998, a jury, properly instructed and appropriately warned, could reasonably find that the witness' familiarity with Mr Sleiman's voice was sufficient to enable him to recognise Mr Sleiman's voice on 8 January 1998 as the voice in the recorded conversations before and after 11 December 1997 as Mr Sleiman's voice. 33 If I am wrong in regarding the threshold as satisfied for Det Sgt McNab's evidence alone, the threshold is satisfied when one has regard to the additional matters to which I have referred and which contribute to the identification of Mr Sleiman as the speaker in the recorded conversations. 34 As to identification of Ms Cassar, the Crown begins with recorded conversations between Ms Cassar and members of her family, being her sister and her mother. The mother and sister say the recorded conversations with them are what they purport to be. The Crown then submits that the jury could find that the balance of the proffered conversations include Ms Cassar as the Crown alleges, by comparison of the balance of the recorded conversations with those authenticated by the mother and sister. 35 Bulejcik justifies this approach. In my view, the established conversations (with the sister and mother) and the other recorded conversations are sufficient to enable a jury, properly instructed and appropriately warned, to find that all of the proffered conversations allegedly involving Ms Cassar do include her as is alleged. If that is wrong, the appropriate threshold is satisfied when one has regard to the other corroborative matters to which I have referred. 36 As a separate argument, counsel for Mr Sleiman submitted that evidence of voice identification evidence should not be admitted without or otherwise than by expert testimony. Such expert testimony is admissible: Gilmore (1977) 2 NSWLR 935; but that does not mean it is required No direct authority was cited in favour of such a requirement. Reference was made to authority relating to handwriting, but that was distinguished in Bulejcik, where Toohey and Gaudron JJ said (at 533) that expert evidence was unnecessary in the case of voice comparison. I do not see why it should be necessary in a case of voice recognition such as the present case. That there exists a body of scientific expertise on the topic does not logically result in lay opinion being inadmissible. I am not persuaded that the evidence is inadmissible on this ground. 37 Counsel for Mr Sleiman also referred me compendiously to what appears in Uniform Evidence Law, S Odgers (3rd ed) pages 322-334. The matters referred to there appear to relate to whether identification evidence should be excluded pursuant to s 135 or s 137 of the Evidence Act 1995. I think that may remain to be argued as a topic. I have, therefore, deferred consideration of the passage I have mentioned. 38 Accordingly, with the qualification mentioned at the commencement of this judgment, evidence of recorded conversations and of the identification of the voices of Mr Sleiman and Ms Cassar should be allowed. The evidence is as follows: (a) The tapes of recorded conversations, transcripts of which are Exhibit A on the voir dire. (b) The transcripts, Exhibit A on the voir dire. (c) The statements, Exhibit B on the voir dire. (d) The log, Exhibit D on the voir dire. (e) The videos of the execution of search warrants on 11 December 1997 and 8 January 1998, Exhibit C and F on the voir dire. (f) Evidence of opening and / or closing of the flat door and / or commencement and /or termination of conversations in the flat in conformity with entries and / exits by Mr Sleiman and Miss Cassar to or from the flat building. (g) Evidence of Miss Cassar's mother and of her sister authenticating some of the recorded conversations involving Miss Cassar. ********** I certify that this and the 16 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Sperling. P. Kirwan, Associate Date: 14 April 1999 Last Modified: 04/15/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.