New South Wales Court of Criminal Appeal CITATION : Regina v Riscuta and Niga [2003] NSWCCA 6 HEARING DATE(S) : 22 November 2002 JUDGMENT DATE : 6 February 2003 JUDGMENT OF : Heydon JA at 1; Hulme J at 128; Carruthers AJ at 163 DECISION : See paragraph 127 CATCHWORDS : Criminal law - appeal against conviction - leave to appeal against sentence - supply of prohibited drug - heroin - admissibility of voice identification evidence - intercepted telephone conversations - relevance - s 55 (1) Evidence Act 1995 - probative value - whether trial judge's direction on voice identification evidence was adequate - overconfidence in witness - whether witness's prior familiarity with voice identified amounted to unfair prejudice to accused - Evidence Act 1995 s 137 - identification evidence - Evidence Act 1995 s 116 - whether trial judge's summing up was satisfactory - perverse verdict - search warrant - execution of search warrant by night - Jones v Dunkel - failure of accused to call particular witness - failure of Crown to call particular witness - operation of proviso to s 6(1) of Criminal Appeal Act 1912 - where no substantial miscarriage of justice has actually occurred - whether appellant lost a chance, which was fairly open, of being acquitted or lost a real chance of acquittal - Sentencing - consideration of circumstances. Criminal Appeal Act 1912 LEGISLATION CITED : Evidence Act 1995 Search Warrants Act 1985 Azzopardi v R (2001) 205 CLR 50 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 Bulejcik v R (1996) 185 CLR 375 Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Domican v R (1992) 173 CLR 555 DPP v Hamman (unreported, CCA, 1 December 1998) Driscoll v R (1977) 137 CLR 517 Dyers v R (2002) 192 ALR 181 Festa v R (2001) 185 ALR 394 Glennon v R (1994) 119 ALR 706 Jones v Dunkel (1959) 101 CLR 298 MacKenzie v R (1996) 190 CLR 348 RPS v R (2000) 199 CLR 620 R v Adler (2001) 52 NSWLR 451 CASES CITED : R v Blakeman [1999] NSWCCA 415 R v Buckland [1977] 2 NSWLR 452 R v Dodd (1991) 57 A Crim R 349 R v Dungay (2001) 126 A Crim R 216 R v Fahda [1999] NSWCCA 267 R v Marshall (2000) 113 A Crim R 190 R v Newland (1997) 98 A Crim R 455 R v Peel (1971) 1 NSWLR 247 R v Phelan (1993) 66 A Crim R 447 R v Smith [1984] 1 NSWLR 462 R v Simpson [2001] NSWCCA 534 R v Taufua [1999] NSWCCA 205 R v Todd (1982) 2 NSWLR 517 Veen v R (No 2) (1987-1988) 164 CLR 465 Velevski v R (2002) 187 ALR 233 R v Whyte [2002] NSWCC 343 PARTIES : Regina v Doru Riscuta Regina v Mariana Niga FILE NUMBER(S) : CCA 60802/01; 60283/02 Mr K G Horler AM QC (Riscuta) COUNSEL : Mr S J Odgers SC/Mr C B Simpson (Niga) Mr G I O Rowling (Respondent) John Bettens & Co (Riscuta) SOLICITORS : Baird & Associates (Niga) S E O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 97/21/0048; 96/21/0113; 96/21/0113 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60802/01 60283/02 HEYDON JA HULME J CARRUTHERS AJ 6 February 2003 REGINA v Doru RISCUTA REGINA v Mariana NIGA Judgment 1 HEYDON JA: On 16 October 2001, after a trial lasting eleven days before a jury presided over by Nield DCJ, verdicts of guilty were returned on a charge that the appellants "between about 20 November 1994 and about 24 November 1994 at Sydney in the State of New South Wales did conspire with each other to supply a prohibited drug, namely, heroin." The offence charged was an offence against s 26 of the Drugs Misuse and Trafficking Act 1985. There was an alternative charge against Mr Riscuta, namely that: "On 23 November 1994 at Parramatta in the State of New South Wales, did supply a prohibited drug, namely, heroin." 2 On 12 April 2002 Nield DCJ sentenced Mrs Niga to imprisonment for six years with a non-parole period of four years and six months commencing on 19 March 2002. On the same day he sentenced Mr Riscuta to imprisonment for eight years with a non-parole period of six years commencing on 19 March 2002. 3 Each appellant appeals against conviction and seeks leave to appeal against sentence. The counsel who appeared in the appeal did not appear at the trial. The background circumstances 4 The background circumstances are set out in the sentencing remarks of the trial judge. He said that Mrs Niga was the female speaker and Mr Riscuta the male speaker in certain intercepted telephone conversations. In those conversations they agreed that Mr Riscuta would hand over a quantity of heroin to Mr Doru Alupoaie (Mrs Niga's brother-in-law) for him to deliver to an address in Dandenong, Victoria. 5 The trial judge said: "At about 5.40pm on 23 November 1994 Mr Alupoaie arrived in the vicinity of 34 Sorrell Street, Parramatta, where Mr Riscuta was waiting, by taxi. At about 6pm Mr Alupoaie entered Mr Riscuta's unit, unit numbered 10, 34 Sorrell Street, Parramatta. Mr Alupoaie received, inter alia, 193 grams of heroin, a bus ticket, a piece of an envelope, on which was written a Dandenong address, and some $500 cash money from Mr Riscuta." Mrs Niga's appeal against conviction 6 Counsel for Mrs Niga abandoned all of the grounds of appeal originally filed except two, and was granted leave to reformulate those two grounds. As reformulated, they were: "1. The trial judge erred in admitting the voice identification evidence of Ms Kandic. 2. The trial judge erred in his directions to the jury regarding the voice identification evidence of Ms Kandic." Ground 1: admissibility of voice identification evidence: background 7 Ms Clarice Kandic was called to prove her translations of what was said in tapes of the relevant conversations, which were conducted largely in Romanian. These conversations took place between 15 and 25 November 1994 and each of the tapes, with corresponding transcript, were marked as Exhibits S1-S18 respectively (save for Exhibit S14: that was a transcript but there was apparently no tape). Mrs Niga complains not about the translation evidence, but about Ms Kandic's evidence that the voice of a woman speaking on the tapes was the voice of Mrs Niga. Ms Kandic said that she was able to perform that identification because she had heard Mrs Niga's voice before: she had been present during an interview conducted in English with Mrs Niga at the New South Wales Crime Commission in 1993. In 1994 she heard and translated the tapes from Romanian into English. 8 In chief Ms Kandic gave the following evidence about the 1994 recorded conversations: "Q. Now in relation to the female person on the recording can you tell if there is anything distinguishable from the other voices on the conversations, about her voice? A. Yes. It's a medium to high pitched voice that seems to get, the speech seems to get extremely fast once the person was excited about the subject discussed. And also it was a person that had a tendency to throw swear words frequently in the conversation. Q. Thank you. Now in relation to the male voice was there anything distinguishable in relation to that voice? A. The male voice was a fairly low pitched voice with a nasal tone tendency and a slight slur when expressing certain words in Romanian. Q. I want to ask you about another time in 1993. Were you present as a translator during an interview with the woman identified on the tapes? A. Yes I was called to be present in case interpreting services were required in a confidence situation. Q. How long – perhaps if I can ask you, what was the name of that person? A. The person's name was Mrs Mariana Niga. And another person was present, whose name escapes me. Q. During this meeting did it become evident that she did not require your interpreting skills? A. Yes. Q. And why was that? A. Because her English was reasonably good. Q. Did you remain in that room? A. Yes. Q. For how long? A. Approximately half an hour. Q. And did you become familiar with her voice? A. Yes. Q. And having heard her voice in 1993, could you recognise it when you listened to the tapes? A. Yes." 9 The tapes corresponding to Exhibits S1-S13 and S15-S18 were then played. After each tape was played it, and the corresponding exhibit, was admitted and marked as an exhibit. The tape corresponding with Exhibit S14 was apparently not played, but the transcript was admitted as Exhibit S14. Ms Kandic's evidence in chief may be summarised thus: she identified a female voice on the tapes as that of Mrs Mariana Niga; she identified a male voice on some of the tapes as the same male voice, distinguishing it from another male voice; she distinguished yet another male voice on one of the tapes from the first male voice. And in relation to Exhibit S18 she distinguished Mrs Niga's voice from that of another female voice which could be heard. 10 It was the Crown case that the calls recorded in Exhibits S9-S12, which were conversations between 4.39pm and 5.46pm on 23 November 1994, were conversations between Mrs Niga (ie the person referred to as "F2" in the transcript forming part of Exhibit S18) and Mr Riscuta discussing arrangements for a man to attend 10/34 Sorrell Street, Parramatta, where Mr Riscuta lived. 11 On 23 November 1994 Detective Bush arrived at that address at about 2pm. The Crown's Summary of Trial accurately states: "He entered the units to ascertain the position of Unit 10. At about 5.40pm he saw a taxi arrive outside 34 Sorrell Street. He saw Alupoaie get out of the taxi, look around and walk along in the street as if he was looking around. At about 6.15pm, Alupoaie entered the units at 34 Sorrell Street, walked past the door to Unit 11 and approached the door to Unit 10 where he went out of view. At that stage, Alupoaie was not carrying anything. A short time later, Alupoaie left the main entrance door carrying a white plastic bag. The bag appeared to have a number of objects in it. At about 6.20pm, the co-accused left the units." 12 The Crown's Summary of Trial also accurately says: "Detective Fowler observed Alupoaie arrive in the taxi on 23 November 1994 and look around the street in the vicinity of 34 Sorrell Street. As Alupoaie walked along, he appeared to be carrying a small piece of paper. He appeared to be looking at the houses and blocks of units along the street. Alupoaie walked into the units at 34 Sorrell Street. At about 6.15pm, the Detective saw Alupoaie leave the units, carrying a white plastic shopping bag in his left hand. He and another Detective approached Alupoaie, identified themselves as police officers, and asked him what was in the bag. Alupoaie replied, 'Heroin'. Inside the bag was a brown paper bag, inside which was a smaller clear plastic bag, knotted at the top. Inside that bag were several pieces of a white substance. Also inside the white plastic shopping bag were a 'Firefly' bus ticket [to Melbourne: T 9.10.01 p 78, in the name of J Pacu: T 2.10.01 p 32], a timetable and an unopened packet of 'Smiths' chips: T 2.10.01, pp 13-14. Alupoaie also had a piece of paper with a partial Dandenong address: exhibit T." The white substance in the bag was found to be heroin weighing 195.3 grams. 13 A search warrant was then obtained and executed at about 9pm. Police officers found traces of heroin and equipment for weighing and packaging heroin. 14 The Crown's Summary of Trial contends that the tapes had the following significance: "There is a discussion in exhibit S3 (21 November 1994 at 5.06pm) about the female speaker being at her sister's at Cabramatta [the appellant's sister Rodica Alupoaie, lived at Cabramatta: T 5.10.01 p 3.48; also, the name Rodica is mentioned in exhibit S6]. There is a discussion with the female speaker in exhibit S4 (22 November 1994 at 10.48am) about the male speaker being in Melbourne to meet another man. There is discussion between the main male speaker and another man in exhibit S5 (23 November 1994 at 9.33am) about a coffee machine and scales. There is a discussion between the male and female speakers in exhibit S6 (23 November 1994 at 11.08am) concerning 'the sheila', which the Crown alleged was code for heroin. 'Sheila' is mentioned again in exhibit S11 (23 November 1994 at 4.49pm) and exhibit S13 (23 November 1994 at 6.19pm). There is discussion between the male and female speakers in exhibit S9 (23 November 1994 at 4.39pm) about another man [whom the Crown alleged was Alupoaie] waiting for the male speaker's call, buying him a ticket and telling him to catch a taxi in order to meet the male speaker at his place, how the female speaker will call back for the address, and about not talking too much on the phone. There is a discussion between the male and female speakers in exhibit S10 (23 November 1994 at 4.42pm) where the male speaker gives the address of 10/34 Sorrell Street, and tells the female speaker to tell the other man to make a booking straight away, in another name, and to be at his place at six. There is a discussion between the male and female speakers in exhibit S11 (23 November 1994 at 4.46pm) where the female speaker says the other man has already left. There is a discussion between the male and female speakers in exhibit S12 (23 November 1994 at 6.19pm) where the male speaker says the other man has just left. There is an incoming call to the co-accused's phone service at 6.32pm on 23 November 1994 which goes unanswered: exhibit S16. The Crown alleged this was when the co-accused was being arrested. There is a discussion between two female speakers in exhibit S18 (25 November 1994 at 11.01am) during a call to the appellant's service, where the person called is identified as 'Mariana'. There is a discussion about Doru and that 'Petre' knew 'what he had in the house and what he has there', and about Doru being arrested. 'Mariana' mentions 'Doru my brother-in-law'. 'Mariana' relates a conversation with another woman, referring back to herself as 'Mariana'." The name of the brother-in-law of Mrs Mariana Niga is Doru Alupoaie. 15 Though there was other evidence that the voice on the tapes alleged to be that of Mrs Niga was in fact hers, Ms Kandic's evidence was obviously useful in supporting that conclusion. 16 The evidence objected to came to be admitted in the following way. 17 On the seventh day of the trial, 8 October 2001, the transcript records that counsel for Mrs Niga requested a voir dire in relation to Ms Kandic's evidence, particularly in relation to a "new statement". Two statements of Ms Kandic dated 11 February 1999 had been made available to the defence. But a statement dated 4 October 2001 had just been supplied. That day was a Thursday, the fifth day of the trial. 18 On the voir dire Ms Kandic said she had seen Mrs Niga in 1988 or 1989 at the Local Court. She said she participated in an interview with her at the New South Wales Crime Commission in mid 1993. She said that while waiting to give evidence on 4 October 2001 she was talking to the Crown Prosecutor when, without prompting from the Crown Prosecutor, "like a flash of light" she remembered that the female voice on the tapes which she had translated in 1994, which translations she had come to court to prove, was the voice of Mrs Niga as recalled from the 1993 interview, and she informed the Crown Prosecutor of this. She said: "[COUNSEL FOR MRS NIGA]: Q. Ma'am, would you tell us -- A. It just came out to memory. Actually there was no prompting from Madam Crown; now I just remember exactly how it happened. It was like a flash of light. HIS HONOUR: Q. Well you tell us Madam so we'll all know? A. I just know broadly, your Honour, and said, 'Madam Crown, I just remember I have heard a person speak in front of me'. This is exactly how it happened. [COUNSEL FOR MRS NIGA]: Q. So just out of the blue you said, 'Madam Crown, I've heard her voice before'? A. Yes, I have a very funny memory. Q. When you say it's a funny memory does that mean it fails you often? A. Never. Q. It's not that good? A. Never. Q. Never fails you, and yet you just didn't remember to put this in your prior two statements that you made about this case, about this matter? A. No, at the same time I didn't find it necessary to put it in the statement. Q. Why did you not find it necessary? You knew your statement was going to be used in court, didn't you? A. Yes. Q. So you just decided yourself, all right, I don't find it necessary, I'm not going to include it? A. Yes." 19 Later she said: "Q. Ma'am, if I could just return to one issue. You told us about 4 October statement that it was like a flash of light, do you recall that? A. Yes. Q. Would you tell us precisely what were the circumstances that caused this flash of light for you to remember? A. I've been thinking about this matter, it seems I received a summon and I anticipated certain questions and I tried to rack my memory and it took all this time till Friday when I made the new statement. Q. Are you saying on Friday, that was the first time this came back to you, this memory? A. No not exactly because this memory helped me when the operation was current in 1994. Q. Well -- HIS HONOUR: She actually said it on Thursday. [COUNSEL FOR MRS NIGA]: Sorry, Thursday. Q. Since you left the Crime Commission, when do you remember having this recollection? A. Thursday probably. Q. Thursday, so a great number of years, what, would it be about four or five years at least, had elapsed before you had this recollection? A. Almost seven. Q. And up until Thursday you hadn't confided – sorry, you hadn't recalled this? A. I had no need to bring it to the conscious memory till then." She also said: "Q. Now, also you were asked by [counsel for Mrs Niga] that you didn't put in your statements which the copies I have are marked 11 February 1999, the fact that you recognised the voice of Mrs Niga. Was that because you weren't asked when you made that statement to put that in your -- OBJECTION ([COUNSEL FOR MRS NIGA]). LEADING. LEGAL ARGUMENT. Q. Why didn't you put that in your statement? A. I never was asked, never found it necessary. It was sort of sure knowledge whose voice is on those tapes to the extent that it was not required to be mentioned." 20 She said that the 1993 interview was in the presence of an officer of the Commission who had asked her to attend in case there were language difficulties, but this turned out not to be necessary because Mrs Niga spoke in English. Ms Kandic said she was in the room for approximately half an hour. 21 The cross-examination on the voir dire concluded thus: "Q. You'd been told a number of times the name of my client, the accused, isn't that right? A. Yes." 22 The Crown Prosecutor then went through the transcripts of the tapes indicating how the Crown sought to rely on them; defence counsel indicated various objections. This continued on 9 October 2001. Ms Kandic's voir dire then resumed and she identified a female voice on the tapes as Mrs Niga's. She based that identification on a comparison between the tapes and her recollection of the 1993 interview, eighteen months before the conversations recorded on the tapes. 23 She said: "Q. You're relying on your recollection, aren't you? A. Yes. Q. And when you came approximately eighteen months later to be listening to intercepts you had a preconceived idea of whose voice it was hadn't you? A. Not at all. Q. Well you were told the name, weren't you? A. Yes. Q. And you had it from the warrant, hadn't you? A. Yes. Q. So you had a preconceived idea then that that voice might just be the same voice who you thought you spoke to in mid-1993 at the Commission? HIS HONOUR: Listened to. [COUNSEL FOR MRS NIGA]: Yes. Sorry, your Honour. Listened to? A. Perhaps -- Q. What do you mean 'perhaps'? A. – preconceived, as you put it. However, it has to be thoroughly researched before I would be hearing the same swearing to tell the truth -- Q. No. Just pause. Would you tell me what you mean by, 'It had to be thoroughly researched'? You tell me what you mean by that? A. To commence with, the warrant had to be thoroughly presented and researched for a judge to approve it. Q. But that's got nothing to do with you, has it Ma'am? Your job is to translate, isn't that correct? A. Yes. Q. So what people do to get warrants really has nothing to do with you, correct? A. Yes. Q. So the position is, isn't it, that about eighteen months ago about after you first hear a voice you have a preconceived idea that it might be the same voice because you know the name because you've been told the name? A. No. It is a very specific voice, a very specific speech, a very sustained amount of swearing; and basically I can describe the linguistics of the whole story. And it is the same person that I heard on the tapes and in the interview. Q. Well did you hear her swearing at the interview? A. No. Q. What about any other unusual features? Did you hear that at the interview? A. No. Q. Your start out eighteen months there and off the track, so you now have a warrant for Mrs Niga, and the name Niga is told to you by other officers, isn't that right? A. Yes. Q. So you start out, don't you, then with a preconceived idea of the voice? A. Yes. Q. Ma'am, you've heard those tapes. Are you saying in all of the tapes you intercepted there was swearing? A. Yes." 24 After the voir dire concluded, counsel addressed on admissibility. No record of the addresses is with the papers. It is thus not possible to ascertain whether the precise ground on which counsel in this Court contended that exclusion under s 137 should have been ordered was advanced to the trial judge. The transcript then records the following: "HIS HONOUR: In my view the evidence of Mrs Kandic is relevant, it is probative and its probative value outweighs the danger of unfair prejudice to the accused. I do not intend to prohibit the Crown from adducing it. CROWN PROSECUTOR: The Court pleases. HIS HONOUR: Now least anybody be in any doubt about what might happen, the female speaker on the tapes that I have heard today has a distinctive voice to my untrained ear, and the female speaker on the tapes that I have heard today appears to be the same on each of those that was played today. One of those, the last of which has that speaker identifying herself by name, Mariana, referring to her brother-in-law as Duro, referring to him being in Long Bay prison, I think it proper that I tell the jury that, having regard to what was said in [ Bulejcik v R (1996) 185 CLR 735], the jury can use what it hears on the last tape, in which the speaker identifies herself and refers to other objective facts, in comparing that speaker with the speaker on the other tapes in concluding whether or not it is the same person and as to the identity of that person. [COUNSEL FOR MRS NIGA]: Your Honour, I object to that course of action. I object to you asking them to do comparisons at all, because they have no controlled sample to compare it to, and you are going to open up a Pandora's Box which will cause my client an unfairness, your Honour. HIS HONOUR: I have told you what I propose to do, … . [COUNSEL FOR MRS NIGA]: Court pleases, your Honour." 25 Plainly the admissibility argument centred on s 137 of the Evidence Act 1995 (NSW) which provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 26 After these events the jury returned and Ms Kandic gave evidence before the jury. Ground 1: admissibility of voice identification evidence: Mrs Niga's arguments 27 Counsel for Mrs Niga submitted: "… the trial judge erred in not excluding the voice identification evidence pursuant to s 137 Evidence Act 1995. The probative value of Ms Kandic's voice identification was very low, notwithstanding her 'absolute certainty' about the identification … : - She had heard the appellant's voice only once before (in 1993), for only 15 to 20 minutes during a half hour long interview at the NSW Crime Commission in which the appellant was speaking in English … . - She did not hear any unusual or distinctive features in the voice at this interview … . - More than a year and a half elapsed between the 1993 interview and when she heard the tapes in 1994 … . - Before she heard the tapes in 1994 she had been told that the appellant was believed to be the female voice on the tapes … and she believed that the warrant for the interception had to be 'thoroughly presented and researched for a judge to approve it' … . She also relied on the use of the name 'Mariana' by the woman on the tape … . - The female voice on the tapes was recorded speaking to an acquaintance over the telephone, largely in Romanian. - Nearly seven years elapsed between Ms Kandic listened to the tapes and her evidence that she recognised the appellant's voice. - Ms Kandic had only 'remembered' that it was the appellant's voice in 2002, nine years after hearing the appellant at the Crime Commission and seven years after listening to the tapes … ." 28 Each of these propositions, so far as it went, apart from the second, was accurately supported by references to the evidence given by Ms Kandic either on the voir dire or before the jury. The last proposition requires correction: "2002" should be "2001", which was eight years after the Crime Commission hearing, not nine. So corrected, the last proposition is supported partly by evidence given on the voir dire quoted above, and partly by the following evidence before the jury. It was given while Ms Kandic was being cross-examined about a statement of hers which in one version was dated 11 February 1999 and in another 28 March 1996. "Q. You see, this version, this story you give about hearing someone called 'Niga' in 1993 where anywhere is that contained in your statement of 1996 or on my friend's version of her statement '99?" The answer was interrupted by successful objection. The cross-examiner then asked: "Q. When you gave that statement you knew it would be used in court didn't you? A. Yes. Q. You knew it had to contain accurate and essentially correct information, isn't that correct? A. Yes. Q. And it was important, it would have been important information wouldn't it that you had heard in 1993 this voice, correct? A. Yes. Q. You never put it in your statement at all in 1996, true? A. Yes – true. Q. Even on my friend's copy of 1999 it wasn't there either? A. True. Q. Well, did this just come out of the blue this, was it just a flash all of a sudden in the last week or two or something like that that you remembered about this? A. Yes. Q. Like the time in 1993? A. Yes. Q. See, wasn't that at a time that you remembered this was when you were speaking to Madam Crown? A. Yes I was speaking to Madam Crown. Q. And that was because you were aware by that stage which is only last week that there was a problem with your paragraph 10 when you were saying that the female identified herself by name on all of the tapes there? A. No I didn't relate to the -- Q. And you found out for the very first time – the very first time in years – this comes out of the blue about this alleged meeting in 1993? A. I happened to remember it. Q. You just happen to remember that? A. Yes. Q. But other details about this meeting you just didn't happen to remember like what date it was? A. No I didn't remember the date actually. Q. Nor even way day it was? A. No. Q. Nor even what month it was? A. No. Q. But just this one – you just remembered this? A. Yes." 29 Counsel for Mrs Niga then relied on the following statement of Toohey and Gaudron JJ in Bulejcik v R (1996) 185 CLR 375 at 394-5: "Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness." 30 Counsel submitted: "It is apparent from this passage that where, as here, a witness identifies a voice on the basis of having heard it before (rather than subsequently) 'the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it'. Distinctiveness of the voice is only really relevant in a case (not the present) where the witness identifies a voice on the basis of having heard it subsequently but, as noted, Ms Kandic did not claim that there was anything distinctive about the appellant's voice when she heard it in 1993. Combined with the other considerations noted above, the probative value of the evidence was minimal." 31 Finally, counsel for the appellant submitted that the danger of unfair prejudice was high, even allowing for the trial judge's warnings in his summing up: "In particular, there was a real danger of the jury being misled by the evidence, relying upon the level of confidence expressed by the witness to give the opinion much greater weight than it deserved (the trial judge did not refer the jury to the problem of the over-confident identification witness). A high level of confidence is unlikely to enhance the probative value of the identification evidence, but it may well make the evidence more attractive to the tribunal of fact: MacKenzie v The Queen (1996) 190 CLR 348 at 373; R v Marshall (2000) 113 A Crim R 190 at [15]-[16] per Spigelman CJ." 32 In MacKenzie v R, Gaudron, Gummow and Kirby JJ said: "many of the problems which have arisen in respect of identification evidence have occurred not because witnesses have deliberately given false evidence to police, and later to courts, but because it is an elementary feature of human psychology, in the words of the character witness in this case, to carry 'a true mistake … through with … conviction'. The mind, recognising perhaps the seriousness of the consequences of error, may seek unconsciously to reinforce conviction of the truth and accuracy of the recall, the subject of the testimony. This can lead to just such risks of dogmatism and certainty that have occasioned the requirements for court warnings in the case of identification evidence so as to prevent the risks of the miscarriages of justice which can otherwise, quite innocently, occur in that context. But the point made in the identification cases is one of general application. It applies in relation to recall of perceptions required [sic] months or (as in this case) years after events: especially where those events were brief and seemingly unremarkable at the time they occurred." 33 In R v Marshall Spigelman CJ said: "The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and, accordingly, give evidence in a particularly definitive form. It appears that his Honour was impressed by the way Mr Sams gave the evidence of identification and indeed made reference to Mr Sams' demeanour. However, it is the experience of the court with respect to identification, that demeanour can be misleading." 34 It is not entirely clear what Toohey and Gaudron JJ were meaning to assert in the passage relied on by the appellant. Were they stating threshold criteria for admissibility? Were they stating matters relevant to the exercise of a power to exclude? Or were they stating matters relevant to an assessment of weight? The case concerned New South Wales law before the enactment of the Evidence Act 1995. In R v Smith [1984] 1 NSWLR 462 the law of New South Wales had been stated as requiring the witness to have prior familiarity with the voice identified, or requiring the voice identified to be distinctive. That case has been much criticised or questioned in other jurisdictions, and the American authorities relied on in it have lost favour in their original jurisdictions. In Bulejcik v R at 382 Brennan CJ said R v Smith was wrong and at 406 McHugh and Gummow JJ said it was arguably wrong. This debate about the common law does not matter, because this Court held in R v Adler (2001) 52 NSWLR 451 that under the Evidence Act there are no preconditions for the reception of voice identification evidence apart from the requirement in s 55(1) that it be relevant; if the evidence is relevant, it is admissible unless a positive order is made excluding it under ss 135, 137 or 138. 35 The appellant's reliance on what Gaudron and Toohey JJ said is best regarded as a means of drawing attention to factors which may be relevant to probative value. 36 Not only did the appellant not submit that there was no antecedent barrier to admissibility but relevance, but the appellant did not contest the proposition that Ms Kandic's evidence was relevant. The appellant thus conceded that the evidence is "evidence, that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": s 55(1). 37 The expression "probative value", used in s 137, is defined in the Dictionary thus: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 38 It is relevant in considering the application of s 137 to identification evidence to remember that though the Act does not contain any special provisions dealing with voice identification evidence of the type which are to be found in s 114 in relation to visual identification evidence or s 115 in relation to picture identification evidence, the Act does provide in s 116 for warnings about the special need for caution before accepting "identification evidence". Section 116 provides: "(1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence, and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury." "Identification evidence" is defined in the Dictionary as meaning evidence that is: "(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion." Hence s 116 applies to voice identification evidence. 39 Further, s 165(1)(b) provides: "This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: … (b) identification evidence …." Section 165(2) provides: "If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it." 40 In oral argument, counsel for Mrs Niga described the trial judge's decision not to exclude the evidence under s 137 as a discretionary decision. Strictly speaking it is not a discretionary decision, though it does involve, as counsel said, a balancing exercise. But whether or not it is to be termed a "discretion", counsel submitted that the trial judge erred in failing to take into account a relevant consideration, namely that the following prejudice could arise: "a jury may well be misled by the expression of confidence that [Ms Kandic] had made as to the recognition of the voices in circumstances where his Honour did not give any direction to the jury about the caution with which they should approach such expressions of confidence". Counsel's essential point was that though the evidence had probative value, that probative value was of a low order, and the prejudice contended for, since it was not nullified or diluted by the direction contended for, exceeded the limited probative value of the evidence. 41 Given that the argument on ground 1 centres on an alleged deficiency in the summing up, it is plain that ground 2, which concerns the summing up, is directly related to ground 1. It is thus desirable to turn now to the summing up, and then to turn to the criticisms of it advanced by counsel for Mrs Niga to this Court. Ground 2: directions on Ms Kandic's voice identification evidence: events during and after the summing up 42 The trial judge said the following about Ms Kandic in his summing up: "The first thing I want to say to you concerns Mrs Kandic's evidence. There is a direction that I want to give you about her evidence that Mrs Niga is the female speaker on the intercepted telephone calls, not on all of them but on those to which Mrs Kandic made specific reference. Mrs Kandic said that she recognised Mrs Niga's voice because she had heard Mrs Niga's voice before. She said that on an occasion during 1993 she had sat in during an interview of Mrs Niga by a man, during which interview Mrs Niga had spoken in English for about fifteen to twenty minutes of the about half hour long interview. Mrs Kandic said that in November 1994, when she was asked to translate the Romanian language on the intercepted telephone calls, she recognised Mrs Niga's voice. Mrs Kandic said that she translated some calls as they were happening, some calls a day or a few days later and some calls a month or months later. She said that she had been told that Mrs Niga was alleged to be the speaker and she had a preconceived idea that it was Mrs Niga who was speaking. She said that, although she was relying on her recollection of Mrs Niga's voice from the fifteen to twenty minutes speech during the interview of 1993, she was absolutely sure that Mrs Niga was the speaker and that she had not made a mistake. The direction that I want to give you about Mrs Kandic's evidence is that it may be unreliable. I do not say, and, members of the jury, I do not want you to think that I am saying, that Mrs Kandic's evidence is unreliable, only that it may, and I emphasise may, be unreliable. I give you this direction, members of the jury, not because of any view that I may have formed about Mrs Kandic's evidence, and, as I will tell you, and as I have already told you, any view that I may have formed is not relevant, but because the law requires that I give you this direction. Mrs Kandic's evidence may be unreliable because she said she heard Mrs Niga's voice only once before, and that was during 1993; she heard Mrs Niga speaking for only fifteen to twenty minutes during a half hour long interview; one and a half to one and three quarter years had elapsed between the interview of 1993 and when she started the translations in 1994; she had been told that Mrs Niga was believed to be the speaker on the intercepted telephone calls; and nearly seven years have elapsed between the translations of the intercepted telephone calls and her saying that she recognised Mrs Niga's voice on those intercepted calls. Because the evidence of Mrs Kandic, as to her recognition of Mrs Niga's voice on the intercepted telephone calls, may, and again I emphasise may, be unreliable, you must consider her evidence with great care and caution when deciding whether or not to accept it and, if you accept it, what weight, that means what value, you give to it. Of course, members of the jury, you are entitled to consider Mrs Kandic's evidence having regard to other evidence, particularly the intercepted calls exhibits S17 and S18, to which I will refer later, and Mr Garde's evidence, to which I will also refer later. You do not need to consider Mrs Kandic's evidence in isolation from the other evidence. Members of the jury, I tell you that, if, after considering Mrs Kandic's evidence with great care and caution, you decide to accept it, then you are entitled to act upon it. If, however, having considered her evidence with great care and caution you decide not to accept it, then you put it aside in relation to the identification of the female speaker on the intercepted telephone calls." 43 At the end of the summing up the trial judge invited counsel to propose any additional directions desired. Counsel for Mrs Niga had many proposals; what he said about Ms Kandic was: "Your Honour I want you to give much clearer directions in the voice identification than what you have done. Really they have been left with no directions at all about that. You have given them a very broad direction about Mrs Kandic which was qualified, heavily qualified by the suggestion that – you used the word 'may' that many times that they may not agree. Your Honour that is with respect insufficient. You need to be telling them very clearly, with the full [weight] of your office behind it as well, not just leave it in the air as it were. You should be telling them that if they are not convinced about the voice identification that it would be unsafe to convict and make that absolutely clear. You have not done that. You have just said if they are not sure about that they can move on to some other part of the evidence and use some other part of the evidence. That is not sufficient, your Honour. You have got to tell them clearly where there are deficiencies in these so called experts. Your Honour that hasn't been done. You've got to point them to those deficiencies. That hasn't been done. You've got to make it very clear for them, your Honour, as I said, it would be unsafe. Your Honour that hasn't been done. Your Honour I would ask [you] to recall them and go into, with some precision, go in with some precision into the so called expert of Mr Gard as well as that as far as Mrs Kandic goes, goes into some precision about her evidence and what it is all about. And then go into some precision about the defence expert." 44 Counsel then turned to submissions about Mr Garde (an expert called by the Crown) and Mrs Elliott (an expert called by the defence): these submissions are irrelevant to the grounds of appeal now relied on. 45 The trial judge indicated that he did not propose to give any redirection about Ms Kandic. He said: "the use of Mrs Kandic's evidence. You did not ask … for a direction under section 165 of the Evidence Act but nonetheless I gave a direction." 46 The complaint of trial counsel did not seek the direction which appellate counsel contended should have been given. And though the complaint of trial counsel certainly communicated dissatisfaction about the directions relating to Ms Kandic, it did not comply with the duty of trial counsel to formulate the desired redirections in precise terms. Ground 2: directions on Ms Kandic's voice identification evidence: Mrs Niga's arguments 47 In oral argument counsel for Mrs Niga relied on the arguments advanced in writing in the following terms: "If it was open to the trial judge to admit the evidence, it is submitted that the directions given to the jury about this evidence at SU 15.8 – 18.2 did not comply with the requirements of s 116 and s 165 Evidence Act in the following respects: (a) The warning given was insufficiently strong. It failed to give 'a strong warning as to the dangers involved' with voice identification (Toohey and Gaudron JJ in Bulecik v R (1996) 185 CLR 375 at 398-9) and the experience of the courts of innocent people having been convicted upon honestly mistaken identification evidence ( R v Clarke (1997) 97 A Crim R 414 at 428, 431-2, 433) and similar experience that there are dangers lurking in voice identification ( R v Bueti (1997) 70 SASR 370 at 382.3). (b) The trial judge failed to refer the jury to the particular factor that the circumstances in which Ms Kandic heard the voice of the appellant (in a formal interview, in English) were different from the circumstances in which the voice on the intercept tapes was speaking (to an acquaintance over the telephone, largely in Romanian). It was necessary to emphasise to the jury the need for the jury to be satisfied that the circumstances were sufficiently similar to permit accurate identification: R v Smith (1986) 8 NSWLR 444 at 458E, referred to with approval by Toohey and Gaudron JJ in Bulecik v R (1996) 185 CLR 375 at 393-4, and applied by them at 397.7. (c) The trial judge failed to refer the jury to the question of whether the voice in question demonstrated characteristics which were sufficiently distinctive (bearing in mind that she did not claim that there was anything distinctive about the appellant's voice when she heard it in 1993) as to make acceptable Ms Kandic's claim that she had 'absolute certainty' about the identification: R v Smith (1986) 7 NSWLR 444 at 457 at 457E, referred to with approval by Toohey and Gaudron JJ in Bulecik v R (1996) 185 CLR 375 at 394. (d) The trial judge failed to refer the jury to the difficulties involved in distinguishing between two voices when there is a lack of familiarity with the voices: Toohey and Gaudron JJ in Bulecik v R (1996) 185 CLR 375 at 397.8. In Bulecik , the jury were invited to compare the accused's unsworn statement (which lasted about forty minutes: T395.8) with the taped voice – it is clear that Toohey and Gaudron JJ considered that forty minutes was wholly insufficient to establish familiarity. (e) Although the trial judge referred (SU 17.4) to the fact that nearly seven years elapsed between when Ms Kandic listened to the tapes and her evidence that she recognised the appellant's voice, he failed to refer to the fact that Ms Kandic testified that she only 'remembered' that it was the appellant's voice in [2001] (T 58 on 9.10.01). (f) The trial judge failed to refer the jury to the care with which they should take into account the high level of confidence expressed by Ms Kandic: cf Mackenzie v The Queen (1996) 190 CLR 348 at 373; R v Marshall (2000) 113 A Crim R 190 at [15]-[16] per Spigelman CJ. It is submitted that (a), (c) and (f) were matters relevant to the strength of the warning, and its adequacy in the circumstances of this case. Matters (b), (d) and (e) were matters which might cause the evidence to be unreliable (s 165(2)(b)) and were reasons for caution (s 116(1)(b)). They should have been identified as part of the warning: cf R v Camilleri [2001] NSWCCA 527 at [58]." Paragraph (f) reveals the interconnection between ground 1 and ground 2. Grounds 1 and 2: the Crown arguments 48 Counsel for the Crown made the following points. 49 First, Ms Kandic's evidence was not of minimal probative value. Counsel submitted: ""it is not necessary that the witness identifying the voice must have heard it for any particular period of time and Bulejcik v The Queen (1996) 185 CLR 375 is not authority for the proposition that Kandic had not heard it for a sufficient period; Kandic was a trained Romanian interpreter and translator; she was a native Romanian speaker with tertiary education in Romania; she had extensive experience as a translator and interpreter (Transcript, 9 October 2001, pages 28-9) and she was able to describe the linguistics of the appellant's speech (Voir dire Transcript, 9 October 2001, page 22); she was clearly a witness with a good ear for sound; familiarity and distinctiveness are matters going to weight not to admissibility and identification by a witness with a good memory for sound (such as Kandic) may be just as reliable as identification by a witness who is familiar with the appellant's voice or who claims to remember the same distinctive features of the voices: Bulejcik v The Queen (supra) 406-7 per McHugh and Gummow JJ." 50 What the precise weight of the evidence was was a matter for the jury, but in my judgment these contentions, that the evidence was of greater than minimal probative value, are sound. They are supported to some degree by the trial judge's view that "the female speaker in the tapes … has a distinctive voice". 51 Secondly, the Crown submitted that there was no danger of unfair prejudice within the meaning of s 137, because it had not been shown that there was any danger that Ms Kandic's evidence would be used in any unfair way. It was submitted that neither MacKenzie v R nor R v Marshall supported the proposition that the level of a witness's confidence could amount to unfair prejudice. 52 In my opinion there can be no universal rule that the danger of over-confidence in a witness must be identified for the jury – no rule that any summing up failing to identify that danger is appellably defective. Counsel did not appear to go so far as to contend that there was any such universal rule. Whether there is a danger must depend on the nature of the evidence in each particular case. Nor is there any universal rule that if a warning of the type described is not given, any evidence based on a witness's confidence must be excluded under s 137. It is certainly true that MacKenzie v R and R v Marshall do not support the existence of either of those rules as universal rules. What the passages relied on point out is simply one reason why supposedly clear and confident identification evidence can be dangerous. But the passages relied on do not exclude the possibility that that danger can be sufficiently overcome by other means to permit it to be received notwithstanding s 137. 53 Thirdly, the Crown contended, in relation to the passages from Ms Kandic's evidence in chief before the jury quoted in [8] above said by counsel for Mrs Niga to reveal that Ms Kandic had not pointed to particular features of the voice she identified as Mrs Niga's, that, in the passage from her evidence in cross-examination on the voir dire quoted in [23] above, the sixth last-third last questions and answers, when read as a whole, do not contain any statement that Ms Kandic had not heard any unusual or distinctive features in the voice heard at the time of the Crime Commission interview. 54 This submission is not wholly correct, though it is correct in part. The precise position is that while Ms Kandic said she heard no "unusual" features at the interview, she also said that the voice heard both at the interview and on the tapes was "a very specific voice, a very specific speech". Her statement that she heard no "unusual" features at the interview does not negate the proposition that the voice was very specific. The matter was not pursued sufficiently in cross-examination on the voir dire, or at any other time, to support the conclusion for which counsel for Mrs Niga contended both in writing and orally, that Ms Kandic did not hear any "distinctive" features. 55 Fourthly, the Crown dealt with the trial judge's summing up as follows: "There had been no application to his Honour the trial judge for a direction under either section 116 or section 165 of the Evidence Act , 1995; having (Summing Up, pages 15-7) summarised the circumstances under which Kandic made her identification of the voice of the appellant, and the circumstances that bore upon its reliability, and (in particular) of the delay between Kandic's translations of the tapes and her 'saying', that is to say asserting rather than giving evidence, that she recognised the appellant's voice on those tapes, his Honour told the jury (Summing Up, page 17); that they must 'consider it with great care and caution when deciding whether to accept it'; no particular form of words is required (see Evidence Act 1995, section 116(2)) and in the context of the identification of the appellant's voice by Garde and the internal evidence of the tapes Exhibit 'S' upon which the jury were entitled to rely as identifying the appellant as the female speaker on them, his Honour's direction sufficiently complied with the provisions of section 116 of the Act. Further, his directions (Summing Up, pages 15-7) included a warning to the jury that Kandic's evidence might be unreliable, included an explanation of the reasons why it might be unreliable and a warning of the need for caution in determining whether to accept Kandic's evidence and the weight to be given to it; no particular form of words is required (see Evidence Act 1995, section 165(4)) and in the context of the identification of the appellant's voice by Garde and the internal evidence of the tapes Exhibit 'S' upon which the jury were entitled to rely as identifying the appellant as the female speaker on them, his Honour's direction sufficiently complied with the provisions of section 165 of the Act." 56 In part this fourth group of submissions are sound and in part they are fallacious. 57 They are fallacious so far as they seek to support the admissibility of Ms Kandic's identification or the satisfactoriness of the trial judge's directions by evidence other than that identification, such as the contents of the tapes and the evidence of Mr Garde. Matters of that type might be highly relevant in considering whether, assuming appellate error, the proviso ought to be applied. But, at least in the circumstances of this case, the existence of other evidence of identification does not cure any unfairly prejudicial aspect of Ms Kandic's evidence, nor any error in receiving it, nor any error in summing up about it. That is because Ms Kandic, to some degree, relied on the tapes to support her conclusion that the female voice on them was Mrs Niga's, and hence they do not give entirely independent support to the probative value of her identification; and because the probative value of Mr Garde's evidence, being the evidence of an expert, could not by itself increase the intrinsic probative value of Ms Kandic's identification. 58 On the other hand, the submissions are sound in several respects. One relates to the conduct of the trial. Counsel for Mrs Niga did not ask for the direction now requested either before the summing up or after it. There is nothing to suggest – and it was for the appellant to establish this in this Court if she wished to – that her counsel contended to the trial judge that s 137 compelled rejection of Ms Kandic's evidence unless the direction now contended for was given. So far as the appellant's complaints rest on non-compliance with s 165, her counsel did not establish the precondition for its operation. So far as the appellant's complaints rest on non-compliance with s 116, the conduct of the trial suggests that trial counsel, who is not shown to be inexperienced, did not apprehend any error or danger of the type on which ground 1 is said to rest. Counsel for Mrs Niga did not say that these phenomena manifested incompetence on the part of his predecessor at trial so great that it had created the risk of a miscarriage of justice. The absence of a particular direction is complained of; but the general directions which were given pointed to the need for great care in handling Ms Kandic's evidence. 59 Finally, counsel for the Crown submitted that Ms Kandic's expression of confidence was elicited in answer to a leading question in cross-examination. The question and answer were: "Q. Could you have made a mistake in this case between the voice you say you heard in 93 and the voices on the tapes? Can you be absolutely certain that they are the same voice? A. The first part of the question, I'm absolutely sure. Second part of the question, I have made no mistake." (Strictly speaking, Ms Kandic has the answer the wrong way around. What she called the second part of the question, about making a mistake, was in fact the first part, and what she called the first part was in fact the second part. But at least the second part of the question was certainly leading.) In my judgment the fact that Ms Kandic's expression of confidence was uttered after a leading question in cross-examination, rather than a non-leading question either in chief or cross-examination, and was responsive as distinct from being non-responsive, is no answer to the appellant's argument if it were otherwise sound. Leaving aside deliberate tactical decisions, which appear wholly unlikely here, if prejudice flows to an accused from an expression of confidence by an identifying witness, it does not flow the less, and it cannot be ignored, merely because it was counsel for that accused who was the primary trigger for the prejudice. Grounds 1 and 2: conclusion 60 The arguments of Mrs Niga in support of ground 1 fail. It has not been shown that the evidence was wrongly admitted, or that the failure to give a specific direction about testimony given with a high level of confidence meant that it should have been excluded. The dangers in the evidence were capable of being overcome in other ways. 61 On the other hand, there is sufficient merit in some of the arguments advanced in support of ground 2 to support the conclusion that the trial judge's summing up was not satisfactory. If the matter is viewed from the perspective of s 164 (and the trial judge very fairly saw fit to seek to assist the appellant's interests by giving a s 164(1)(b) warning even though it was not requested), it cannot be said that the trial judge informed the jury of all the matters that may have caused Ms Kandic's evidence to be unreliable pursuant to s 164(2)(b). He identified several of those matters, but he did not refer to the fact that the voice in the interview was speaking in English while the voice on the tapes was speaking in Romanian. That did not necessarily make it unreliable, but it may have caused it to be unreliable. If the matter is viewed from the perspective of s 116(1), the summing up did not identify any special need for caution in accepting voice identification evidence. Nor did it identify the general reasons for that need for caution as they have come to be understood through the experience of the courts over the years. It did identify some, but not all, particular reasons. It is undesirable to analyse in too refined a way what was defective about this particular summing up. To a degree a judgment about its satisfactoriness must rest on an overall evaluation of its likely impression. In many respects it was satisfactory, and it had no positive feature that it was erroneous, but overall it does not appear sufficient for the broad reasons just set out. 62 Hence ground 2 is made good. 63 This is an unfortunate conclusion. It is unnecessary to go into unpleasant detail, but the fact is that by the time the trial judge summed up, relations between him and counsel for Mrs Niga had become acrimonious. It is also unnecessary to decide where the responsibility for causing this acrimony lies, though the terms in which counsel addressed the judge on occasion were inappropriate and seemingly unprovoked by any act or statement on the part of the judge. It is possible, and it is a matter of everyday occurrence, for counsel to be firm and direct with judges without departing from courtesy. Indeed, to follow that that course is the most effective form of advocacy. The fact is that the trial judge did not receive specific assistance in relation to how he should sum up, or should have summed up, in relation to Ms Kandic's evidence. Counsel communicated the view that the summing up was not satisfactory, but he communicated little more. So far as he communicated anything specific about the summing up in relation to Ms Kandic, he propounded criticisms that were not sound, and criticisms which counsel appearing on the appeal did not in terms rely on. In all the circumstances, given counsel's broad complaints, it would not be right to apply rule 4 of the Criminal Appeal Rules, but counsel for Mrs Niga cannot escape substantial responsibility for the defects in the summing up. Mrs Niga's reliance on Dyers v R 64 Counsel for Mrs Niga said that if a new ground of appeal relating to Dyers v R (2002) 192 ALR 181 which Mr Riscuta was given leave at the hearing to rely on, namely ground 6 in Mr Riscuta's notice of appeal, succeeded, he would wish his client not to be prejudiced. However, counsel for Mrs Niga advanced no argument in support of the reasoning underlying that ground. Since, for reasons to be given below, the ground does not succeed in Mr Riscuta's appeal, no further action is called for in relation to it so far as Mrs Niga's appeal is concerned. Mr Riscuta's appeal against conviction Ground 1: perverse verdict 65 Ground 1 was: "The jury's verdict is perverse and against the evidence, and the weight of the evidence." 66 This proposition was said to rest on a combination of the arguments advanced in support of grounds 2-5. Let it be assumed that ground 6 is to be added to that list: the successful application to rely on it was made after the written submissions were filed. A submission of that type rests on an assumption that while each particular ground, and all particular grounds, may fail when considered by themselves, taken together, they reveal perversity. Hence consideration of this ground should be postponed until the other grounds have been examined. Ground 2: identification 67 Ground 2 was: "The trial judge wrongly admitted evidence of voice identification, and failed to identify the limited use, if any, to which the jury could put that evidence." 68 The written argument advanced in support of ground 2 was: "The trial judge wrongly admitted the evidence of Mrs Clarice KANDIC and Mr Peter GARDE dependent and based as it was upon a prior sample or 'control tape' that was infected with prejudice to the accused. Given the prejudicial circumstances in which the 'control tape' came into existence, the accused were limited and restrained in how they dealt with it before the jury. Mr Garde did not speak Rumanian and did not call in aid assistance from Rumanian speakers (see summing up 15.10.'01. T.16-19; T.64.6). The submissions here are in the alternative. FIRST, the evidence of KANDIC and GARDE given their scant knowledge and familiarity with the accused should have been rejected. SECONDLY, if admitted (not conceded) then the jury should have been strongly cautioned about the dangers of experts and competing experts (CALLAGHAN Vic Court of Appeal 124 Aust Crim Reports 126)." 69 The submissions advanced in support of ground 2 can be divided into four parts. The only oral argument in relation to ground 2 consisted of a repetition of the fourth part of those arguments. 70 The first part of the submissions was to the effect that it was wrong to admit the evidence of Ms Kandic and Mr Garde because a "control tape" had been employed. The control tape in question was a tape of an electronically recorded interview with a suspected person, namely Mrs Niga, in relation to a criminal investigation touching another alleged crime. However, there was no control tape in relation to Mr Riscuta. What is more, Ms Kandic's evidence did not rest on the control tape which Mr Garde used in relation to Mrs Niga. Counsel for Mrs Niga sought to have Mr Garde's evidence excluded under s 137 of the Evidence Act by reason of the trial judge's decision that it was not necessary for the control tape to be played to the jury: it was sufficient for the jury to be told that the tape in question was a tape recording of Mrs Niga's voice two years before the events in issue. Counsel for Mrs Niga said: "Your Honour, that handcuffs me somewhat from the questions I need to put to the Crown witness, Mr Garde. I'll be severely restricted in the kinds of things I am going to be able to put to him." However, counsel for Mr Riscuta asked no questions of Mr Garde on the voir dire (unlike counsel for Mrs Niga) and did not appear to support counsel for Mrs Niga's s 137 application or make one of his own. 71 The difficulty with this part of Mr Riscuta's argument is that his counsel at trial never identified how the trial judge's refusal to have the control tape played before the jury (which was motivated by a desire to avoid prejudice to Mrs Niga) hampered the questioning of counsel for Mr Riscuta. Nor, for that matter, did counsel for Mrs Niga identify any possible hampering. Nor is it easy to postulate how the questioning would have been hampered. The arguments advanced on appeal certainly did not do so. Hence this part of the argument in support of ground 2 fails. 72 The second part of the argument in support of ground 2 turns on Mr Garde's inability to speak Romanian. This fails because the argument did not demonstrate that it was necessary for him to speak Romanian to render the evidence which he gave admissible. 73 The third part of the argument in support of ground 2 relates to the lack of familiarity of Ms Kandic and Mr Garde with the appellants' voices. So far as Ms Kandic is concerned, she had some, albeit not great, familiarity with Mrs Niga's voice because of being present at the Crime Commission interview. She was unfamiliar with Mr Riscuta's voice, but she did not identify his voice as the voice on the tapes: she said only that one of the male voices on the tapes was that of the same man. For this conclusion she did not need to have familiarity with Mr Riscuta's voice. As for Mr Garde, he did not identify Mr Riscuta's voice. He said only that the female voice on the tapes was very likely to be that of the female whose voice was heard on the control tape (which was accepted to be Mrs Niga's). It was not shown that there was insufficient material on either set of tapes for him to make the comparison necessary to arrive at that conclusion. 74 The fourth part of the argument advanced by counsel for Mr Riscuta in support of ground 2 complained of a failure to give a caution about the dangers of competing expert evidence. Counsel for Mr Riscuta who appeared at the trial (who was not the same counsel as the counsel appearing on the appeal) made many complaints about the summing up, but not the complaints now urged on the court. In Velevski v R (2002) 187 ALR 233 at [181] Gummow and Callinan JJ said: "The correct position is … that conflicting expert evidence will always call for careful evaluation. So too, because expert evidence by definition deals with generally unfamiliar and technical matters, it will always need careful, and usually more elaborate treatment by the trial judge in directing a jury about it." The trial judge gave three pages of directions about the differences between Mr Garde and Mrs Elliott, and the significance of accepting or rejecting one or the other. In view of the failure of counsel for Mr Riscuta to analyse those three pages in detail with a view to demonstrating non-compliance with what Gummow and Callinan JJ called for, it is not necessary to set out those pages, and it is sufficient to reject the argument as having not been made out. Ground 3: search warrant 75 Ground 3 was: "Counsel at trial failed to challenge properly or at all the issue and execution of the search warrant, the search of the appellant's premises, and the material obtained thereby and tendered as a result of the 'execution' of the said search warrant in breach of the Search Warrants Act 1985 ." 76 The written argument advanced in support of this ground was: "The appellant was arrested (6.40 pm) before the execution of the search warrant (about 9.00 pm). The material obtained pursuant to the execution of the search warrant was not available to the arresting police, was not available relevantly to the Police at the time the decision to arrest was made, a decision that was later shored up as a result [of] the search. Impermissibly see DUNGAY 125 Aust Crim Reports pt 2 the clear inference arises that the purpose of the arrest at 6.40pm was for investigation only. The SEARCH WARRANTS ACT lays down certain procedures for the obtaining of and execution of search warrants to protect the citizen. These include Sections 15, 15(3) – occupiers notice, 16 – duty to show warrant, 19 – execution of warrant by night, 21 – report to authorised justice who issued warrant. No evidence was called at trial to prove that these requirements were complied with: the issue was not investigated although forensically there were potential points available which may well have vitiated the warrant. Trial counsel had a duty to conduct a thorough and detailed voir dire into all these issues. True, counsel complained but took it no further. The accused's defence was prejudiced and compromised (BIRKS) as a result. (NB. CAVEAT: not all the relevant documents are NOW available despite much searching.)" 77 The time of arrest was in fact, according to the evidence, 6.25pm. The correct citation of R v Dungay is in fact (2001) 126 A Crim R 216. It is neutral on the question whether the arrest of Mr Riscuta at 6.25pm was merely for investigative purposes. 78 The Crown argued as follows: "The evidence was that the search warrant was received at the police station before 8 pm on 23 November 1994 (Exhibit 'C' and evidence of Lewis, Transcript, 26 September 2001, page 17). The magistrate who granted it fixed the time within which it was to be executed as terminating at 11 pm on that day; accordingly, a search after 9 pm that day was not contrary to the provisions of section 19 of the Search Warrants Act , 1985. A police officer who has properly arrested a person may, after an arrest has been effected, further investigate the offence in respect of which the arrest was effected, including searching the arrested person's house: Williams v The Queen (1986) 161 CLR 278, 283-4 per Gibbs CJ, 300-1 per Mason and Brennan JJ; to the same effect is the judgment of Street CJ in R v Burns (unreported, Court of Criminal Appeal, 19 August 1988). Dungay (2001) 126 A Crim R 216 is not in point since in that case there was at the time of the arrest of Dungay no evidence against him and 'no relevant police officer had the intention of taking (Dungay) before a magistrate or justice at any time'. In contrast, in R v Kane [2001] NSWCCA 150, paragraphs 9, 10 and 16 per Ipp AJA, with whom Handley JA and Greg James J agreed, the police arresting Kane had at the time of his arrest evidence of his admission to a former wife and former mother-in-law and a fingerprint implicating him so that they had 'enough evidence to charge Kane'. From the evidence at the trial it appears that at the time of the arrest of the appellant the arresting police officers had available to them at least the following evidence relating to the supply of heroin by the appellant to Alupoaie: (a) the evidence of Bush (see above) that on the evening of 23 November 1994 he was in a garden on the opposite side of the street from the block of flats in which the appellant lived; that Alupoaie arrived by taxi at about 5.40 pm, hung around for about 20 minutes and then entered the block; that Alupoaie was then carrying a piece of paper; that Alupoaie went to the first floor of the block of flats in which there were situated Units 10, 11 and 12; that he walked past Unit 11 and approached Unit 10 occupied by the appellant; that Alupoaie then left the premises at about 6.15 pm carrying a plastic bag; (b) the evidence of police officers including Fowler (Transcript, 2 October 2001, pages 13-15) that they arrested Alupoaie and that he had in his possession in the plastic bag, objects that included a packet of potato crisps, heroin, later found to weigh 195.3 grams, an overnight bus ticket for Melbourne, $500, and a piece of paper bearing a partial address in Dandenong, Victoria (photographs Exhibit 'D', bus ticket, Exhibit 'T' and paper Exhibit 'U'); and (c) on the evidence of Davis (Transcript, 5 October 2001, pages 2-3) information from other police officers. This was enough to justify the arrest and charging of the appellant. There was at the trial no objection to the admission of the evidence of the search warrant and of its execution or to the tender of the objects found by the police at the appellant's flat. In particular there was no objection to it on the basis that the arrest was carried out otherwise than in accordance with the provisions of section 352 of the Crimes Act , 1900 or that there was any defect in the issue of the search warrant or the search under it. No voir dire was sought and there was no occasion for the Crown to call evidence that suggested that the arrest of the appellant accorded with those provisions. Leave is accordingly required to argue this ground of appeal; the circumstances now said to give rise to the illegality of the search warrant were known to Senior Counsel for the appellant who cross examined several witnesses for the Crown in the presence of the jury, putting to them, as being relevant to their credit, the alleged illegality of the search (evidence of Davis, Transcript, 5 October 2001, pages 25-6; of Lewis, Transcript, 10 October 2001, pages 81-3, 11 October 2001, pages 37-41). It is not shown that there is any basis for the assertion that the search was illegal on any of the grounds referred to in the appellant's written submissions; further it is not shown that, in all the circumstances, there was flagrant incompetence of Senior Counsel for the appellant at the trial that involved or caused a miscarriage of justice as described in R v Birks (1990) 19 NSWLR 677, 685 per Gleeson CJ. No basis is put for the grant of leave and accordingly it ought to be refused." 79 Counsel for Mr Riscuta did not challenge any of these contentions in oral argument. Rather he repeated in more detail some of the contentions referred to in the written submissions. First, counsel said that the warrant might have been executed soon after 9 pm, that the police evidence was vague as to the precise time, and that the warrant only gave authority to act up to 9 pm. He referred to s 19(1) of the Search Warrants Act 1985, which provides: "A search warrant may be executed by day, but shall not be executed by night unless the authorised justice, by the warrant, authorises its execution by night." Section 19(2) defines "by night" as meaning the period between 9 pm on any day and 6 am on the following day. That argument fails. In the printed part of the search warrant there were words authorising entry "between the hours of 6.00am-9.00pm". There follows a reference to footnote 1, which reads: "If there is a need for execution by night, specify the other times". The printed numbers and letters "9.00 pm" were crossed out of the warrant and "11 pm" substituted in handwriting. In short, on its face the warrant authorised execution by night as a result of a conscious mental process on the part of the authorising justice in a manner contemplated both by the form of the search warrant and the legislation. Secondly, counsel argued that there was an issue whether s 15(1) and (3)-(5) had been complied with. Those subsections provide: "(1) An authorised justice shall prepare and furnish an occupier's notice to the person to whom the authorised justice issues a search warrant. … (3) A person executing a search warrant shall: (a) upon entry into or onto the premises or as soon as practicable thereafter, serve the occupier's notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or (b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of the premises, either personally or in such other manner as the authorised justice who issued the warrant may direct, as soon as practicable after executing the warrant. (4) Service of an occupier's notice pursuant to subsection (3) (b) may be postponed by the authorised justice who issued the search warrant if that authorised justice is satisfied that there are reasonable grounds for the postponement. (5) Service of an occupier's notice pursuant to subsection (3) (b) may be postponed on more than one occasion, but shall not be postponed on any one occasion for a period exceeding 6 months." Counsel argued that because it was possible that the Act had been contravened, it was possible that all the evidence of the search might have been excluded under s 138 of the Evidence Act . Counsel submitted that Mr Riscuta was "entitled to be there when his premises were searched". That submission is entirely inconsistent with s 115(3)(b), which contemplates that a search in the absence of the occupier and without having served an occupier's notice is lawful. Counsel also submitted that there had been "police misconduct [which] prevented [Mr Riscuta] from being present". But no misconduct was demonstrated. 80 In his summing up the trial judge noted some criticisms made by counsel who appeared for Mr Riscuta at trial of the legality of the search, but told the jurors not to concern themselves with those criticisms in view of the failure of counsel to apply to have the evidence excluded earlier. 81 The written submissions of the Crown in relation to ground 3 are sound. Leave under rule 4 of the Criminal Appeal Rules should be refused. There is no evidence of any impropriety on the part of the police, and any suggestion that there was should have been fully raised for their consideration if such an allegation was to be relied on as a substantive matter as distinct merely from a matter going to credit. The doubts raised by counsel for Mr Riscuta before this Court are far-fetched and there are many reasons to believe that had they been ventilated at trial they would have been exposed as baseless. Further, there is no reason to suppose that there was any incompetence on the part of the counsel who appeared for Mr Riscuta at the trial. He may well have legitimately formed the reasonable view that an attack on the police would have completely failed and done no more than alienate jury sympathy from his client. Ground 4: evidence about Mr Riscuta sending or receiving phone calls 82 Ground 4 was: "In the absence of any evidence identifying the appellant as the sender and/or recipient of certain phone calls, the trial judge failed to direct the jury as to: (i) how this evidence could be used and the limits to be placed on it, and (ii) there being available other reasonable hypotheses consistent with innocence. ( Barca; Chamberlain No 2). " 83 There was no written submission in support of this ground. Nor was there any clear oral submission. The trial judge in fact devoted five pages to a general explanation of the appropriate thinking to apply to circumstantial evidence, and over fifteen pages reminded the jury of the detail of the phone call evidence. Since no attempt has been made to support this ground, it is rejected. Ground 5: failure to put the defence case 84 Ground 5 was: "The trial judge failed to put the defence case properly or at all, and in particular the issues of: (i) Bush's capacity and ability to see the person Alupoaie at the premises; (ii) the unexplained failure by the Crown to call Alupoaie; (iii) the slide from ' Mr Riscuta's service ' to Mr Riscuta in reference to the phone calls; (iv) the conflict in the evidence as to the times of certain phone calls, the time of the execution of the search warrant, and the arrest of the appellant; and (v) failure by police to find the appellant's mobile telephone." 85 The written submission of counsel for Mr Riscuta in relation to this ground was: "The emphasis upon the Crown case in comparison to the case for the accused was grossly disproportionate. The trial judge nowhere isolates and identifies the case for the accused. Indeed, when asked for a redirection he says at p 72 pt 5 'What is the defence case, other than an attack upon Mr Garde' which remark is typical of the way in which he diminished and diluted the case for the accused (see CROCKETT (Vic) 124 ACR 312)." 86 The Crown advanced no written submissions in relation to this ground beyond pointing out that Mr Riscuta did not advance any positive case and rested his defence on attacks on the evidence of Mr Garde and Ms Kandic based on the evidence of Mrs Elliott. The ground of appeal in the form set out above, however, was not filed until 22 November 2002, some days after the Crown's written submissions were filed. 87 As developed in oral argument, ground 5 turns on the following contentions. 88 Ground 5(i) appears to rest on a complaint that though Detective Bush saw Mr Alupoaie enter 34 Sorrell Street, walk past unit 11, and approach unit 10, he then went out of view. The trial judge directed the jury that the Crown was asking it to draw the conclusion, as a matter of circumstantial inference, that Mr Alupoaie was supplied by Mr Riscuta with heroin in unit 10. He told them they should not draw the inference unless it were the only reasonable and rational inference. That is a satisfactory direction, because implicit in it is the defence case: that the inference was not the only reasonable and rational inference. 89 Ground 5(ii) may be put aside. The argument advanced contradicts the argument advanced in support of ground 6. In any event, as will be seen in relation to ground 6, what the trial judge said about the Crown's failure to call Mr Alupoaie was what counsel appearing for Mr Riscuta at the trial asked him to say, and that counsel did not complain of what had been said after it had been said. 90 Beneath ground 5(iii) lay a complaint that the trial judge slid from stating that the calls were from a service belonging to Mr Riscuta to stating that the calls were made by Mr Riscuta. Contrary to the submission and the numerous transcript references supposedly supporting it, the trial judge was scrupulous to maintain the distinction between the question whether the calls were made or received from a person using Mr Riscuta's service, and the question whether he was that person. The complaint merged into a complaint that the service was not Mr Riscuta's service. Counsel for Mr Riscuta in this Court accepted that no proper request for a redirection was made. That points to the conclusion that at all material times it was common ground that the service was Mr Riscuta's service. Counsel for Mr Riscuta was not able to demonstrate the contrary. His predecessor did not object to the tender of telephone records tending to establish that the service was his service. Counsel also submitted that Mr Riscuta's mobile phone was never linked to any of the calls made by Mrs Niga to the relevant number or from that number to her. That submission is contradicted by Exhibit BB, the relevant Telstra records. 91 Ground 5(iv) was supported thus. Counsel submitted that the Crown relied on an incoming call at 6.25pm and an outgoing call at 6.26pm. Counsel submitted that Mr Riscuta could not have been the male participant since he had been arrested at 6.25pm and there was no evidence that he had any phone while under arrest. The trial judge dealt with these problems in some detail over three pages of the summing up. It cannot be said that he failed adequately to deal with the defence case in that regard. 92 As to ground 5(v), counsel submitted that there was no evidence that the mobile phone which Mr Riscuta collected from Parramatta Police Station on 8 December 1994, in relation to which he signed a property receipt, and which the police exhibit book said had thereby been disposed of "to owner", was his, or had been in unit 10 at the time of the search; that even if he were the owner there was no evidence that he used the phone; and that there was no evidence that his was the male voice in the recorded conversations. 93 There was no doubt that the phone had been used to make the calls which were taped. The claim which Mr Riscuta evidently made to the police on 8 December 1994 to be the owner of the mobile phone is a powerful admission that he was in fact the owner of it. The phone was in the name of "Mr Riscuta Dory" according to Telstra records. That name is similar to Doru Riscuta, the appellant. The address in those records, unit 10 of 34 Sorrell Street, is identical with Mr Riscuta's address. If Mr Riscuta was the owner of the phone, that was evidence tending to prove that he used the phone. As will be seen in considering the proviso, the content of the calls in several respects pointed to the relevant male voice as being that of Mr Riscuta. 94 The trial judge did point out, correctly, that in the absence of direct evidence that Mr Riscuta was one of the speakers on the tapes, the Crown was relying on circumstantial evidence, and that meant it had to prove "that there is not any rational or reasonable conclusion other than what the Crown alleges." He said this several times. 95 Ground 5 fails. Ground 6: direction about the failure of the Crown to call Mr Alupoaie 96 Ground 6 was: " The trial judge erred in law in his summing up (pp 22-24) in directing the jury in terms of Jones v Dunkel. " 97 Counsel for Mr Riscuta submitted that after the trial judge had warned the jury about the lack of significance of the failure of both accused persons to testify, he fell into error in saying: "I want to give you a direction, as learned counsel for Mr Riscuta said that I would, concerning the absence of Mr Doru Alupoaie. Mr Alupoaie has not been called to give evidence. I expect that you would have expected him to have been called to give evidence, because he could have given you evidence about his receipt of the heroin that he had on him; and the $500 that he had on him; and the ticket to Melbourne that he had on him; and the part of the envelope with the Dandenong address, and I expect you all know that Dandenong is a suburb of Melbourne, that he had on him; and about why the ticket was not in his given name or his family name, but in some other name. I expect that you have wondered as to why Mr Alupoaie has not been called to give evidence. There are two things that I want to say about the fact that Mr Alupoaie has not been called to give evidence. The first thing is this: members of the jury, you must not speculate about what evidence Mr Alupoaie might have given had he been called to give evidence. The second thing that I want to say is that, in the absence of a satisfactory explanation as to why Mr Alupoaie was not called to give evidence, you are entitled, as the judges of the facts, to draw an inference, and that means make a conclusion, that Mr Alupoaie's evidence would not have assisted the Crown's case. And about what I have just said there are two more things that I want to say. Firstly, whether or not the Crown's explanation, and that is not the explanation that learned counsel for Mr Riscuta said, as the Crown's explanation, given by one of the police, is that it was pointless calling Mr Alupoaie because he is Mrs Niga's brother-in-law, is satisfactory, is a question for you as the judges of the facts. If you consider the explanation is a satisfactory one then you cannot draw any inference. If you consider the explanation is not a satisfactory one then you can draw the inference. That does not mean that you have to draw the inference, only that you can draw the inference and it is a matter for you to decide whether or not you do so. And as to the explanation, although it is a question for you and not for me, whatever you may think about its pointlessness in calling Mr Alupoaie because he is Mrs Niga's brother-in-law, you do not know of any relationship, if any exists, between Mr Alupoaie and Mr Riscuta. And, of course, the fact that Mr Alupoaie was not called to give evidence does not apply only to Mrs Niga; it applies to Mr Riscuta, because, as I will tell you, and as you know, they have been charged with conspiracy to supply heroin to Mr Alupoaie. So, members of the jury, whatever decision you make concerning the fact that the Crown did not call Mr Alupoaie to give evidence, remember that you must not speculate about what he might have said had he been called to give evidence. And remember you can, if you wish, in the absence of a satisfactory explanation, or if the explanation is not satisfactory, draw the inference that whatever he might say would not have assisted the Crown case, although you do not need to draw that inference if you do not want to." 98 Counsel for Mr Riscuta on the appeal accepted that his predecessor at the trial had not only not complained of this direction, but had requested it because it was perceived as being to Mr Riscuta's advantage. He also accepted that though in other respects he was relying on the supposed incompetence of his predecessor in support of the appeal, here there was no incompetence. There was no incompetence because the proposition that the direction was impermissible "wasn't law at the time"; instead, the law had been changed, and, since the direction was prejudicial to his client, the direction could be attacked even though his predecessor had requested it. 99 The argument had the following background. In RPS v R (2000) 199 CLR 620 and Azzopardi v R (2001) 205 CLR 50 the High Court, by majority, held that generally no direction of the type given in Jones v Dunkel (1959) 101 CLR 298 should be given where an accused person failed to testify. In Dyers v R (2002) 192 ALR 191, which was decided well after the summing up in this case, the High Court, by majority, held that no such direction should be given where an accused person failed to call a particular witness. Gaudron and Hayne JJ said at [5]: "As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi . As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence." At [6] they said: "Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses." 100 What they said in [5] represents the ratio decidendi of Dyers v R which related to a direction about the accused's failure to call a witness, not the prosecution's failure to call a witness. Kirby J agreed in [52] with the proposition stated in [5], but said nothing supportive of [6]. Callinan J agreed in [121]-[123] with the proposition stated in [5], but he too said nothing supportive of [6]. McHugh J, who had dissented in RPS v R and Azzopardi v R, strongly disagreed with the proposition stated in [5]: [25]-[46]. He said nothing about the proposition stated in [6]. Counsel for Mr Riscuta contended that McHugh J's silence on the question of whether comment could be made on the Crown's failure to call a witness was at worst neutral, and that the same was true of the silence of Kirby J and Callinan J on the point. Counsel also sought to contend, apparently, that what Gaudron and Hayne JJ said at [6] was more than dicta and that comfort could be derived from the failure of the other judges in terms to dispute it. 101 I am utterly unable to accept these propositions. It is wholly clear that what is said in [6] is a dictum by two justices of the High Court – no less, but no more. Decisions of single justices of the High Court are not binding on intermediate courts of appeal, though they are of the greatest persuasive authority: Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664 per Jacobs P and Hope JA; Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504 per Gummow J. And in the last mentioned case Gummow J said the same was true of "considered statements of principle" in decisions of single High Court justices in the original jurisdiction. He said that: "Stare decisis involves courts being bound by appellate decisions of courts standing above them and in the same hierarchy". The dictum of Gaudron and Hayne JJ, though it is entitled to the greatest respect and though it is of persuasive value, is not an "appellate decision" of the High Court. It is a statement of principle, no doubt a considered one, offered as a dictum. 102 It has been a longstanding practice in this State, dating from at least R v Buckland [1977] 2 NSWLR 452, that in appropriate circumstances an accused may seek and obtain a Jones v Dunkel direction about the failure of the Crown to call a particular witness: see Street CJ at 457-459 and Carmichael J at 470-471; R v Newland (1997) 98 A Crim R 455 and R v Taufua [1999] NSWCCA 205. 103 Hence, as the submissions advanced for Mr Riscuta conceded, if the proposition in [6] represented the law of New South Wales, it would amount to a change in the law. In my opinion it did not in fact change the law, but constituted only a dictum. If the reasoning in that dictum were incorporated in a decision of the High Court, or in a decision of this Court, it would change the law. On an issue of this importance, which could radically affect the rights of accused persons to seek comments adverse to the Crown case, a change in the law should not be effected by this Court, but only by a decision of the High Court. It has not yet been effected by any decision of the High Court. 104 There is much to be said for the view that Mr Riscuta's argument on appeal should be rejected, in the circumstances of this case, because it is inconsistent with the stance adopted at trial. It is also hard to see how the direction which the trial judge gave, so far as it was inconsistent with [6], was prejudicial in the slightest degree to Mr Riscuta. I would prefer not to rest my conclusion on these points. 105 Counsel for Mr Riscuta put other arguments about the passage in the summing up set out above. 106 One was that the trial judge's reference to "the $500 that he had on him" was a reference to a matter excluded from evidence. 107 The correct position is that Detective Senior Constable Fowler gave evidence before the jury that when Mr Alupoaie was stopped by the police in the street after leaving Unit 10, he searched him and found $500 in $50 notes on him. He then gave evidence of what Mr Alupoaie said to Detective Mulready about how he came to be in possession of that money, namely that it was his fee for delivering the heroin. After an adjournment and some argument in the absence of the jury, the trial judge said to the jury: "Members of the jury whilst Detective Fowler is being brought back into court I wish to tell you that where he said in his evidence before the morning tea break about Detective Mulready speaking to Mr Alupoaie about the $500 in cash found in his left front jeans pocket and what Mr Alupoaie said in relation to it, you can disregard. I have decided that that is not evidence that is properly admissible before you as it does not implicate either accused in that conversation so I want you to disregard what Mr Alupoaie said to Detective Mulready about how he came to have the $500 found on him." It follows that the evidence of finding the $500 remained before the jury. Accordingly the submission is wholly erroneous. 108 Another submission advanced on behalf of Mr Riscuta was that it was wrong to invite the jury to speculate that Mr Alupoaie might have given an explanation for his possession of the heroin, the $500, the ticket to Melbourne, and the part of the envelope with a Dandenong address. That submission is fallacious. The fact is that the trial judge did not invite the jury to speculate along those lines; he directed them not to. What he said in effect was: "I expect you may have been speculating along those lines, but I direct you that you must not do so; you may, however, infer that Mr Alupoaie's evidence would not have assisted the Crown". That direction, given in relation to each accused in turn, is highly favourable to each accused. There was no request by counsel appearing for Mr Riscuta at the trial for a redirection to remove any prejudice of the type contended for on appeal. That is understandable in view of the fact that the direction involved no prejudice, but may have brought considerable benefit to the accused. It is wrong to divide up this section of the summing up and to fail to read it as a whole. 109 Ground 6 fails. Ground 1 reconsidered 110 Each of grounds 2-6 have failed. But, if the arguments underlying them are taken together, do they support ground 1? Counsel for Mr Riscuta did not advance any submission explaining why arguments which, taken separately, did not reveal error, had the result, taken together, of establishing an unreasonable verdict. In my judgment that is because no such submission is available. The proviso 111 Notwithstanding that Mrs Niga has made out ground 2, a question arises as to whether the appeal should nonetheless be dismissed by reason of the operation of the proviso to s 6(1) of the Criminal Appeal Act 1912 on the ground that "no substantial miscarriage of justice has actually occurred". Further, if one were to assume, contrary to what has been said above, that Mrs Niga had made out ground 1, or that Mr Riscuta had made out any ground, this question of whether the proviso could be applied would still arise. 112 Usually the application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being "inevitable" in the sense that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See Glennon v R (1994) 119 ALR 706 at 710-712. The error established in relation to ground 2 of Mrs Niga's appeal, and the errors alleged in relation to ground 1 of her appeal and grounds 1-6 of Mr Riscuta's appeal, are not fundamental in the sense just described. Hence, on conventional thinking, it is necessary to direct attention to the strength of the Crown case. 113 However, counsel for Mrs Niga appeared to submit that an even stricter test applied in identification cases. He relied on the following statement of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Domican v R (1992) 173 CLR 555 at 565-566: "If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused." That test was applied by Kirby J in Festa v R (2001) 185 ALR 394 at [203] and by Callinan J at [255]; Gleeson CJ concurred with both judgments. 114 Counsel submitted that Brennan J in Domican v R adopted a stricter view at 570-571: "The general principle is this: where, on the evidence and consistently with the directions of the trial judge, it is open to a jury to convict on any of two or more independent bases, a misdirection or an inadequate direction which would vitiate a conviction on one of those bases necessarily results in the setting aside of a guilty verdict despite the availability of another sound basis for conviction. That is because it is not possible to conclude that a guilty verdict has been founded on a sound basis when it was open to the jury to convict on a basis affected by the misdirection or inadequate direction. A Court of Criminal Appeal cannot apply the proviso by speculating either that the jury acted on a body of evidence which was unaffected by the misdirection or inadequate direction; nor can the Court speculate that, if the jury had acted on such evidence, they would have convicted. If a misdirection or inadequate direction would vitiate a conviction based on identification evidence and that basis of conviction was open to the jury, it is impossible to be satisfied that, by reason of the misdirection or inadequate direction, the accused did not lose a chance of acquittal." Counsel did concede the possibility that this approach had only limited significance in view of what the majority said, and in view of Festa v R . 115 It is not the case that the test stated by the majority in Domican v R creates some especially high standard where the error relates to identification evidence. McHugh J, who was a party to Domican v R, discussed the earlier authorities in Festa v R at [110]-[123]. He said that the correct principles were those stated by Barwick CJ in R v Storey (1978) 140 CLR 364 at 376 and Driscoll v R (1977) 137 CLR 517 at 524-525. Those principles turn on whether the appellant by reason of the error "may thereby have lost a chance which was fairly open … of being acquitted" or "lost a real chance of acquittal". Reference may also be made to Hayne J's analysis at [222]-[229]. Thus in identification cases as much as in other cases, the question is whether the conviction would have been "inevitable" in the sense that the appellate court, acting on its own assessment of the facts, concludes that a jury composed of reasonable jurors, properly instructed on admissible evidence, would not have failed to convict the accused. 116 How strong, then, was the Crown case? Case against Mr Riscuta 117 Counsel for Mr Riscuta made no submission about the proviso. That is not surprising. The incontrovertible facts were that at 5.40pm on 23 November 1994 the police observed Mr Alupoaie, Mrs Niga's brother-in-law, arriving at 34 Sorrell Street empty handed. He spent about half an hour walking on the street and looking around. At about 6.15pm he entered the building and went to unit 10, still empty handed. When he left he was not empty handed, but was carrying a shopping bag. He was asked by the police what was in it, and said "heroin". Heroin to the weight of 195.3g was in fact found in the bag, together with a ticket to Melbourne and a timetable. Mr Alupoaie also had part of an envelope on which was part of an address in Dandenong. At 6.25pm Mr Riscuta drove up the driveway from the home units. The police arrested him. He denied an allegation of supplying heroin earlier that afternoon; said he lived alone; denied knowing Mr Alupoaie; and denied anyone else was with him at the premises at about 6pm that evening. When the police, having obtained a warrant, searched unit 10 at about 9pm, they found equipment for weighing and packaging heroin. In one of the bedrooms there was a metal press, a metal plate with a small amount of white powder residue on it, and a hollow metal block also with a small amount of white powder residue on it. The press was so large and heavy that four or five police officers were required to carry it back to the Parramatta Police Station. There was no other furniture in the bedroom. A set of scales was found in another room. In the kitchen there was a coffee maker that had white powder residue on the nozzle. There were four metal hot plate rings on the stove that also appeared to have white powder residue on them. There were small flakes of a white substance in the recess directly beneath the hot plates. There was no food in the kitchen at all. There was nothing in the refrigerator except one bottle of soft drink. Heroin was found in the white powder residue on the coffee maker and on the metal plate and metal blocks found in the bedroom. The police denied having "sprinkled" heroin around unit 10. Unit 10 had been leased to Mr Riscuta from 11 November 1994. 118 On that evidence alone the conviction of Mr Riscuta was inevitable, unless the evidence were explained in some way. Mr Riscuta did not enter the witness box to explain it, and no other witness explained it. 119 The chance of Mr Riscuta being convicted was increased by the evidence on the tapes, even if the evidence of Ms Kandic as to the identification of Mrs Niga had been excluded (or subjected to a satisfactory warning) and even if Mr Garde's evidence had been excluded. There was no objection to Mrs Kandic's evidence so far as she translated what was on the tapes. The Crown submitted: "the voices of both [Riscuta] and Niga were identified by the subject matter of their conversations as follows: (i) Niga by the female speaker being addressed as 'Maria': tape 'S1', page 1. The evidence of Kandic (Transcript, 9 October 2001, page 49) was that 'Maria' is an abbreviation of 'Mariana'; (ii) Niga, by the female speaker saying that she was with her sister at Cabramatta on tape 'S3', page 1, and going to her sister at Cabramatta on tape 'S8' at page 3 (which is a recording of a conversation which took place on 23 November 1994). The evidence of Detective Sergeant Davis (Transcript, 5 October 2001, pages 3-4) was that at about 10.30pm on 23 November 1994 he executed a search warrant at Flat 21, 73 McBurney Road, Cabramatta the premises of Mrs Rodica Alupoaie the wife of Doru Alupoaie [Riscuta's] brother-in-law, and at the time of the execution of it he saw [Niga] leaving the foyer of that block of flats; (iii) the appellant by the male speaker's request to borrow a coffee machine and statement that he had scales: tape 'S4'. [Riscuta] then lived at Unit 10, 34 Sorrell Street, North Parramatta (evidence of Saab, Transcript, 2 October 2001, pages 49-50) and a coffee grinder and scales were found at that flat at the time of the search at about 9pm on 23 November 1994 (Exhibit 'J' (Exhibit Log)) and the evidence of Smith, Transcript, 2 October 2001, page 32); (iv) Niga by the female speaker telling the male speaker that a purchaser was to come in a taxi and the appellant by the male speaker saying that the purchaser should come to his flat: tape 'S9', page 1. Alupoaie arrived by taxi shortly after 5.40pm and walked around until about 6pm, at which time he entered the block of flats at 34 Sorrell Street; see evidence of former Detective Sergeant Bush, Transcript, 26 September 2001, pates 26-7; (v) Niga by the female speaker informing the male speaking that there was a bus at 7pm and [Riscuta] by the male speaker telling Niga that the purchaser should come at 6pm, on tape 'S10', page 2. See the evidence of Bush that Alupoaie entered the block of units at about 6pm (see subparagraph (d) above) and evidence of Lewis (Transcript, 9 October 2001, page 78) that Alupoaie when arrested held a bus ticket for a trip from Parramatta to Melbourne leaving at 7.40pm on 23 November 1994, and see Exhibit 'U'; (vi) [Riscuta] and Niga by the speakers' reference to a purchaser having already left, to arrive at 6pm, on tape 'S12', at page 1. See also evidence of Fowler (Transcript, 2 October 2001, pages 12-13) that Alupoaie arrived at about 6pm and was arrested at about 6.15pm on 23 November 1994; (vii) [Riscuta] by the male speaker saying, at 6.19pm on 23 November 1994, that a purchaser had already left, on tape 'S13' at page 1; (viii) [Riscuta] by the male speaker telling a female telephone caller from Dandenong in Victoria that the purchaser had left and would arrive in Dandenong on the following morning, on tape 'S14', at page 1. When arrested Alupoaie had in his possession a paper bearing a partial address in Dandenong (see evidence of Fowler, Transcript, 2 October 2002, pages 13-4 and Exhibit 'T'); see also evidence of Lewis (Transcript, 9 October 2001, page 78) that Alupoaie when arrested held a bus ticket for a trip from Parramatta to Melbourne arriving in Melbourne at 7.10am on 24 November 1994, and see Exhibit 'U'; (ix) Niga by the discussion on 25 November 1994, of 'Doru' Riscuta and 'Doru' Alupoaie being in Long Bay, they both being in custody at that time: see tape 'S17' page 2, and evidence of Lewis, Transcript, 10 October 2001, pages 8-9; and (x) Niga by a female speaker's reference to herself, and being addressed, as 'Mariana' and her reference to Alupoaie as her brother-in-law on tape 'S18', at pages 6, and 8. See the evidence of Davis, Transcript, 5 October 2001, page 4, referred to above at sub-paragraph (e)(ii)." 120 These submissions are in substance correct. Hence, even if Mr Riscuta had made out any ground of appeal, his appeal would have had to be dismissed by reason of the proviso. Case against Mrs Niga 121 Unlike counsel for Mr Riscuta, counsel for Mrs Niga did make submissions about the proviso. He conceded that the Crown case was strong. He continued, however, by saying: "at the end of the day the defence case was that the woman whose voice was recorded on the listening device was not the appellant and notwithstanding the fact that she used the name Mariana, notwithstanding the fact that she was addressed as 'Mariana' and other indicators tending to indicate – it was her phone, of course – that it was her. The defence case had to be that someone else connected with her was essentially impersonating her. In order to meet that case the Crown relied on the evidence of Miss Kandic and the other evidence from the expert, Mr Garde, who expressed the opinion not that it was her but rather highly likely to be her. The defence called an expert to challenge Mr Garde and the jury was invited to consider the dispute between them. I would submit that in those circumstances one cannot say that inevitably the jury would have accepted Mr Garde over the defence expert and that then leaves the Crown's reliance on the references, the name and the use of the phone belonging to the appellant in circumstances where the defence case is it wasn't her. It is plainly a strong circumstantial case. It cannot be said in this Court that the jury must inevitably have concluded beyond reasonable doubt that it had to be her. … The submission I make is that the jury may well have thought that Ms Kandic's evidence was the final straw that a person said with absolute certainty – I am using the language of Ms Kandic – that the voice was the appellant's. It may well have been that the jury relied on that to exclude any reasonable doubt that they otherwise may have had." 122 One weakness in that argument is that it rests on the proposition that some person "connected with" Mrs Niga was impersonating her. The notion that there was such a person is intrinsically so far fetched as to be wholly insupportable without evidence, and there was no evidence. 123 Another weakness in the argument advanced on behalf of Mrs Niga was that it did not face up to the detail of the indicia in the conversations implicating her as the participant in them. While some of those indicia taken alone might not point conclusively against her, taken together the suggestion that there was some other female person having intimate knowledge of the details of the crime and participating in the conversation who had her name, used her phone, and had a sister, like her, at Cabramatta, is totally unrealistic. These coincidences defy the explanation that there was some other female voice on the tape: they can only be explained on the basis that Mrs Niga was the speaker recorded on the tape. 124 In short, then, even if Ms Kandic's evidence of voice identification is left out of account, there were clearly established objective circumstances pointing inevitably to the guilt of Mr Riscuta of the crime of supplying heroin and of the crime of conspiring with the relevant female speaker to do so. There were also clearly established objective circumstances pointing to various connections between Mr Riscuta and Mrs Niga. The content of the recorded telephone calls indicated that the relevant female speaker had many of the characteristics of Mrs Niga, had an intimate knowledge of the objective circumstances of Mr Riscuta's crime, and was conspiring with Mr Riscuta to commit it. The inference that Mrs Niga was the female speaker, and hence was a participant in the conspiracy charged, was inevitable. Hence, despite Mrs Niga's success in making out ground 2, her appeal must be dismissed pursuant to the proviso. 125 If the evidence just discussed had not of itself been decisive in relation to the proviso, it would have been necessary for this Court to listen to the tapes. But that is not necessary and it has not been done. Sentence 126 I agree with Hulme J on this subject. Orders 127 The following orders are proposed. 1. Mariana Niga's appeal against conviction is dismissed. 2. Doru Riscuta's appeal against conviction is dismissed. 3. Mariana Niga's application for leave to appeal against sentence is granted but the appeal is dismissed. 4. Doru Riscuta's application for leave to appeal against sentence is granted but the appeal is dismissed. 128 HULME J: In these matters I agree with Heydon JA that the appeals against conviction should be dismissed. I also agree with His Honour's Reasons in that regard. 129 I turn to the question of sentence. As has been said, Mr Riscuta was sentenced to imprisonment for a term of 8 years with a non-parole period of 6 years both periods commencing on 19 March 2002 and Mrs Niga sentenced to imprisonment for a period of 6 years including a non-parole period of 4 years and 6 months both of these periods also commencing on 19 March 2002. The maximum penalty prescribed for an offence of conspiracy to supply heroin, where the amount involved is, as in this case, 195.3 grams, is 15 years imprisonment or a fine of $220,000 or both. That penalty applies in the case of quantities up to 250 grams. 130 Despite an argument that Mr Riscuta's criminality was greater because he obtained and, pursuant to the conspiracy, supplied the heroin, Judge Nield took the view that the criminality in the offence charged of both Respondents was equal. The argument was repeated in this Court, it being submitted that Mrs Niga should be sentenced upon the basis of (only) what she agreed to and what she did. It was submitted that this was only arranging delivery to her brother-in-law and facilitating that delivery by telephone calls. It was submitted that a courier who has arranged to import drugs into Australia is not regarded as criminally responsible as his principal. Among the fallacies in this comparison is that there was no evidence which permitted any conclusion to be drawn as to the full respective roles and interests in the result of the conspiracy. The mere fact that on the evidence as presented, Mr Riscuta may have physically done more, does not justify the conclusion that he should suffer any greater, or Mrs Niga any lesser, punishment for the conspiracy to which they were both parties. 131 The reasons His Honour stated for imposing different sentences were that there were "differences between the offenders, particularly their criminal records and the number of people dependent upon them and the degree of those persons' dependency". As some of the arguments advanced during the appeal depend or rely on these factors, it is convenient to provide some detail of them. Apart from a number of traffic offences and 3 offences of goods in custody, Mr Riscuta's antecedents included:- (i) the possession and supply of heroin in 1984 in respect of which he was fined $1,500 and placed on a 3 year recognisance, (ii) an offence of supplying heroin in November 1985, for which he was sentenced to 6 months imprisonment, (iii) an offence in Victoria of trafficking in heroin in respect of which he was sentenced to imprisonment for a term of 8 years with a minimum term of 6 years. He was ordered to be released from that custody on 6 February 1992, and (iv) an offence of aiding and abetting the trafficking in heroin in September 1994, again in Victoria, and in respect of which he was given a 2 year suspended sentence. 132 Mrs Niga had only one prior offence, albeit this was for supplying heroin in not less than a commercial quantity. For that offence she had been sentenced to imprisonment for 3 years from 5 November 1993, such sentence to be served by way of periodic detention. However it is clear that in the case of both offenders, their commission of the offence with which this Court is concerned occurred at a time when they were both on conditional liberty. That is recognised as a severely aggravating feature. 133 His Honour found that Mrs Niga's 81 year old mother who suffers from dementia, husband who suffers from a mood disorder for which he has needed hospital admission and 14 and 9 year old children would be affected greatly by her being imprisoned. His Honour expressed the view that so would Mr Riscuta's former wife, 2 children and father albeit not as greatly. His Honour also recorded that Mrs Niga's physical and emotional health were not good. A medical report in evidence indicated that, unsurprisingly given her family situation, she was depressed. 134 There is little else by way of subjective circumstances to which I need refer. His Honour recorded that neither offender had expressed contrition and that, although neither had committed any offence since those with which he was dealing, he did not know whether or not they had rehabilitated. 135 One matter which his Honour, correctly, regarded as relevant to be taken into account in the Appellants' favour "particularly as the offender's lives are different now, particularly the life of Mrs Riga" was the passage of time between when the offenders were charged – November 1994 in the case of Mr Riscuta and January 1995 in the case of Mrs Niga – and their trial in September and October 2001. As this delay is relied on in the application to appeal against sentence, I should provide some detail of it although it is not necessary to repeat all of his Honour's very full chronology of events. (i) On 23 November 1994, Mr Riscuta, and on 27 January Mrs Niga, were arrested and charged. (ii) On 27 February 1996, Mrs Niga was committed for trial. (iii) On 29 March 1996 Mrs Riga appeared for arraignment. That was adjourned pending the conclusion of Mr Riscuta's committal proceedings. (iv) On 11 November 1996, the committal proceedings concluded in Mr Riscuta's favour but in December the Director of Public Prosecutions directed that an ex officio indictment be presented against him. (v) In the first half of 1997, the trial of both was fixed for 27 November. Shortly before the trial date, Mr Riscuta indicated an intention to apply for a permanent stay of his trial. In due course this application and a trial date were fixed for 2 November 1998. (vi) Shortly before 2 November 1998, on the application of the Director of Public Prosecutions, proceedings were adjourned so that expert speech identification evidence could be obtained. (vii) On 16 December 1999, after a number of adjournments, Mr Riscuta's application for a stay, by this time supported by Mrs Riga, came on for hearing. The decision was reserved and delivered in July 2000. (viii) After a number of adjournments, one of which appears to have been because the Appellants indicated an application for leave to appeal against the decision on the stay application would be filed, the trial was fixed for 23 July 2001. (ix) On 16 July 2001, on the application of Mrs Riga and so that expert evidence could be obtained in response to that of the Crown on voice identification, the hearing date of 23 July was vacated. 136 His Honour remarked that he suspected that congestion in the Court's list was partly responsible for the delay and that the time taken was excessive. A more appropriate description is "appalling". 137 On behalf of Mr Riscuta, the attack on the sentence imposed was expressed in the written submissions in cryptic terms:- "The sentence is excessive given (a) Amount of drug = 7oz/193gms. (b) Appellant's prior record. (c) Evidence upon sentencing." 138 Orally, Mr Horler QC who appeared for Mr Riscuta said that while he did maintain the appeal on sentence, he did not wish to add anything to the written submissions beyond the contention that if Mrs Niga's appeal on sentence succeeded, his client was also entitled to a reduction in sentence on grounds of relative parity. 139 193 grams is more than three-quarters of the upper limit of a trafficable quantity of heroin for the supply of which, in appropriate circumstances, the legislature has provided a penalty of 15 years imprisonment. In R v Peel (1971) 1 NSWLR 247 at 262, it was said that "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug". 140 And in R v Dodd (1991) 57 A Crim R 349, in a passage quoted with approval in, inter alia, R v Whyte [2002] NSWCCA 343 at [157] the following appears:- "There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity." 141 Judged by the terms of the statutory provision, the fact that the quantity involved was 193 grams provides no ground for thinking that a sentence of 8 years is excessive. And when regard is had to Mr Riscuta's record his claim for reduction in the sentence imposed becomes even weaker. In light of that record, "the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In (such a) case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted". Veen v R (No 2) (1987-1988) 164 CLR 465 at 477. In light of his record, Mr Riscuta was fortunate that the sentence of 8 years imprisonment was not significantly higher. Were he to offend in this area again, any court would have to look very hard at imposing the maximum sentence available. 142 The "Evidence upon sentencing" which Judge Nield had to consider set out Mr Riscuta's family and work history and included from a number of people, favourable references. His work history seemed to indicate that he was not unskilled or lacking in flair in that respect but contained nothing else of note. The favourable references tend to fade, if not into insignificance, at least very substantially when compared with his offending. His family situation, to which I have referred briefly above, also showed that Mr Riscuta provided financial support for his sons, and emotional support for the one of these who suffers from Tourette's Syndrome and Attention Deficit Hyperactivity Disorder. The evidence indicated that there was some significant cost associated with that child's health. 143 Although it is unusual for hardship on others to be taken into account in mitigation of sentence, such were the family circumstances that the case was one where his Honour was entitled to take Mr Riscuta's into account. Indeed the Crown did not suggest that his Honour erred in doing so. But Mr Riscuta's problem in suggesting that they entitled him to any reduction in sentence from this Court lies in the circumstances of his offence, considered in the light of his record. Those matters argue so strongly for heavy punishment, that neither his family circumstances nor any other aspect of the "Evidence upon sentencing" provides any basis for interfering with the head sentence of 8 years imposed on Mr Riscuta. 144 Putting aside the argument to which I have referred to the effect that his Honour did not give recognition to what was said to be Mrs Niga's lesser role, it was but faintly argued that the head sentence imposed on her was excessive. In light of the principles to which I have referred, I am satisfied that it was not. However an attack was made on the non-parole period and the approach taken by Judge Nield to the issue of whether there were special circumstances. 145 In arriving at his conclusion that there were no such circumstances, his Honour said that "to be 'special', a circumstance must produce the need or desirability of increasing the length of the parole period and correspondingly reducing the length of the non-parole period." - words which, although not identical, may well have been taken from the remarks of Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 447 at 449 – 450. Certainly the way in which his Honour expressed himself, in particular by the reference to a "corresponding" reduction in the length of the non-parole period, is consistent with that part of the remarks of the Chief Judge where his Honour said (his emphasis):- "But the starting point (for a consideration of whether special circumstances exist) is the need or the desirability of a longer than usual additional term, not the need or the desirability of a shorter than usual minimum term." 146 In R v Simpson [2001] NSWCCA 534 a five member bench of this Court decided that that was too narrow an approach and "that the scope of the considerations relevant to the determination of "special circumstances" must encompass (also) the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole." 147 Although the matter is not entirely clear, forced to reach a conclusion, I think that Judge Nield did err in the approach he took to the question of whether special circumstances existed. Thus this court should examine the question de novo. 148 In support of the claim that special circumstances did exist in the case of Mrs Niga, reliance was placed on:- 1. The delay to which I have referred. 2. The claim that the delay was through no fault of Mrs Niga. 3. What was said to be evidence of significant rehabilitation in the intervening period. 4. A submission that it would be appropriate to give greater weight to that rehabilitation in respect of the non-parole period. 5. Evidence of and a finding that the Appellant's physical and emotional health are poor. 6. The fact she has young children who will suffer in consequence of her imprisonment. 7. That the sentence constitutes Mrs Niga's first experience of imprisonment and this and some of the preceding matters will make that experience more onerous. 149 It is apparent from what I have said that the suggestion that all of the delay was through no fault of Mrs Niga is not justified. Her support for Mr Riscuta's application, the adjournment because of the contemplated application for leave to appeal from the refusal of the stay, and the vacation of the July 2001 trial date are matters for which Mrs Niga must accept some responsibility. Judge Nield recorded that the report of the expert relied on by the Crown had been served long before December 1999. One might note also that his Honour remarked:- "I suspect also that the offenders were content with the passage of time. Indeed, I note that Mr Riscuta's application for a permanent stay of his trial, which was supported by Mrs Niga, was not based upon any delay but upon a number of perceived problems in the Crown's case…" 150 Nevertheless it is clear that, subject to one matter, there was very considerable delay for which Mrs Niga was not responsible. I have said "subject to one matter". It must not be forgotten that the need for a trial at all was a consequence of her pleading not guilty to an offence of which, on the jury's verdict, she was guilty. She was, of course entitled to take that course but her doing so somewhat attenuates the weight which is to be given to the delay. Although the matter was not debated, I incline to the view that her decision does not however, deprive the delay of all significance – c.f. R v Fahda [1999] NSWCCA 267 at [19]. 151 Significant rehabilitation was asserted. However, his Honour was not persuaded of that saying "frankly, I do not know … although, perhaps, Mrs Niga's lifestyle since November 1994 suggests that she has turned over a new page in her book of life". In that connection it is appropriate to record that although rehabilitation, if it had occurred, was a matter in mitigation on which the onus of proof lay on the Respondents, they gave no evidence during the sentencing proceedings. 152 The evidence which was relied on in support of the claim that Mrs Niga had become rehabilitated was principally evidence that she had in 1999 opened her own hairdressing salon, evidence of employees and others who had dealings with her to the effect that she was a trusted, supportive and faithful friend. There were also a number of references attesting to the belief of the authors that Mrs Niga was, inter alia, a good mother, wife and daughter and a trustworthy friend. She was said to have good morals and values and to be honest and an active member of her church and the Romanian community. 153 The weight of some of these opinions is somewhat attenuated by the fact that none of their authors seems to have been aware of Mrs Niga's offence or of her prior offending. The opinions as to her honesty or trustworthy nature suffer from the fact that Mrs Niga maintained to the author of the Pre-Sentence Report referring to her that she was not guilty. Statements to that effect were inconsistent with the jury's verdict and his Honour's own opinion that "the Crown's case was strong almost to the point of being overwhelming". There was no evidence of contrition. 154 In the face of this evidence, and in part lack of evidence, it is no wonder that Judge Nield felt unable to conclude that rehabilitation had occurred. I see no reason to differ from his Honour's conclusion. Nor, although Mrs Niga seems clearly to have got on with her life and, perhaps appropriately impressed some persons, does the evidence provide grounds for any view that, if temptation occurs, she will not again offend. The state of the evidence also makes it impossible to conclude what Mrs Niga's prospects of rehabilitation are. It is to be inferred from the matters to which I have referred that Mrs Niga has some prospects but how great these are it is just impossible to say. 155 The factual assertions contained in the fifth to seventh matters relied on in support of the claim for a finding of special circumstances are common ground and I agree that those factors do argue in favour of a finding of special circumstances and both a decrease in the non-parole period and an increase in the remainder. So, notwithstanding my remarks, does the delay which has occurred. When the justice system permits or causes trials and sentences to be delayed as long as those of the Respondents have been, it imposes unfairness both in the consequent duration of uncertain suspense on those charged and in prolonged or delayed interruption of their lives – see R v Todd (1982) 2 NSWLR 517 at 519-520 – a passage generally endorsed by the High Court in Mill v R (1988) 166 CLR 59 at 64; See also DPP v Hamman (unreported, CCA, 1 December 1998; R v Fahda [1999] NSWCCA 267 and R v Blakeman [1999] NSWCCA 415 at [16]. 156 However, there remains the consideration that the non-parole period itself must reflect all the circumstances of the offence, including its objective gravity and the need for general deterrence – see R v Simpson [2001] NSWCCA 534 at [65]. Having regard to the purposes behind a non-parole period, clearly the other functions of imprisonment have a role to play too. 157 Were this Mrs Niga's first offence, then notwithstanding the quantity of heroin involved, Mrs Niga's by no means inactive role, and the fact that 4½ years is but a small proportion of the statutory maximum (even reduced in accordance with the prima facie non-parole proportion), I would have no hesitation in finding special circumstances and reducing her non-parole period. But as has been said, it was not her first offence involving the supply of heroin and she was on conditional liberty at the time. 158 Furthermore, the Crown had appealed against the earlier sentence. A copy of this Court's Reasons for dismissing the appeal in the exercise of its discretion (on 13 April 1994) was an exhibit before Judge Nield. In those Reasons the Court made it clear that the earlier sentence was inadequate and drew attention to the fact that no doubt the fact that Mrs Niga was a single mother supporting 2 young children would have weighed heavily in the determination of the light sentence she received. Kirby P, with whom the other members of the Court agreed also said this: "The respondent was put before this Court as a person who was religious, who attended church and who had a tender concern for her children and for her mother. Doubtless some of all of those statements are true. However, for my own part I would have been more impressed if I had been convinced the respondent had a similar concern for other people's children. They were apparently of no concern to her. They sadly are those who get caught up in the supply of and dependence on heroin. A truly religious and caring mother and daughter would spare a thought for them". 159 It is no part of these proceedings to punish the Respondent for her earlier offence or because the sentence then imposed was inadequate. But it seems to me very relevant when the Court is asked to exercise its discretion by finding special circumstances and reduce the non-parole period to recognise that the Respondent has once been treated leniently, has previously been given significant consideration because of her children – one of the matters now relied on - and, unless one takes the view that she did not care enough to attend to what the Court said, these matters and the evil of her actions pointed out to her. 160 Although I was disposed to think that the claim for a finding of special circumstances and reduction of the non-parole period should be rejected because the instant offence was Mrs Niga's second and was committed on parole, the matters to which I have referred in, and arising from, the remarks of this Court in Mrs Niga's earlier appeal have put my decision beyond doubt. Not only general deterrence, but personal deterrence and retribution inspire me to the view that there should be no reduction in her non-parole period. 161 So far as Mr Riscuta is concerned, the delay argues for the finding of special circumstances but there really is nothing else. On the other hand, his record of offending is such that, in his case also, I am disinclined to reduce the non-parole period. 162 In the case of both offenders, leave to appeal against sentence should be granted, but the appeals dismissed. 163 CARRUTHERS AJ: As to the conviction appeals I agree with the orders proposed by Heydon JA and his reasons therefor. 164 As to the applications for leave to appeal against sentence I agree with the orders proposed by Hulme J and his reasons therefor. ********** Last Modified: 02/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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