R v Dunn [2012] NSWDC 192

District Court New South Wales

Medium Neutral Citation: R v Dunn [2012] NSWDC 192 Hearing dates: 11October 2012. 15-16 October 2012. Decision date: 17 October 2012 Before: Berman SC DCJ Decision: Accused is found not guilty Catchwords: CRIMINAL LAW - Judgment - Judge alone trial - Voice identification evidence - Failure to ask important questions - Difference between words heard on recording and words appearing in transcript Category: Principal judgment Parties: The Crown Jack James Dunn Representation: Mr G Corr - The Crown Mr R Driels - The Accused The Director of Public Prosecutions Miers Legal - The Accused File Number(s): 2011/293954

Judgment

Introduction 1The accused Jack James Dunn was arraigned on an indictment alleging that, on 14 May 2011 in company with others, he had attempted to break and enter premises at Belrose with intent to steal on 14 May 2011. He pleaded not guilty to that charge. In accordance with orders I had made earlier his trial was held without a jury, with me as the judge determining whether the prosecution had proved the guilt of the accused beyond reasonable doubt. 2I heard evidence about the commission of the offence. It is clear that someone attempted to break and enter into the premises at Belrose with the intention of stealing from those premises. I am easily able to find that beyond reasonable doubt. What is at issue is whether the accused was one of the men involved. 3The police had been investigating the activities of a number of people, including the accused, for some time. As part of those investigations a number of types of electronic surveillance were used. In particular, telephones were intercepted and listening devices were installed. Two of the telephones which were intercepted were those of the accused. Over the period that the telephone intercept warrants were in force a large number of voice calls involving the accused's telephones were recorded, something in the order of 3,800. Although at times his telephone was being used by other people, for the majority of the time his voice could be heard on those calls. 4 A listening device had also been installed in a stolen Mercedes Benz motor vehicle. That device recorded sounds emanating from within and near to the motor vehicle. The motor vehicle was used in the offence and a number of conversations between those involved in the offence were recorded. Those recordings included conversation before the offence was committed and during its commission. Indeed on the recording the sounds of a sledge hammer being used in an attempt to break into the premises could clearly be heard. 5There is no dispute that the listening device records the voices of people who are guilty of the offence. The issue for me to determine is whether I am satisfied beyond reasonable doubt that one of the voices recorded was that of the accused. 6The Crown case against the accused is based solely on the recordings. The Crown says that police officers who have listened both to the listening device recording and the telephone intercept recordings have become ad hoc experts in identifying the voice of the accused. They gave evidence that in their opinion one of the voices heard on the listening device recording was that of the accused. The Crown case is that the police officers had become very familiar with the voice of the accused through listening to the results of the telephone intercept warrant and so their opinion should be accepted beyond reasonable doubt. The Crown also purports to rely on some of the things said in the conversations recorded on the listening device, in particular those parts of the recording where one of the people involved in the offence used the name of the accused - "Jack", a derivation of it - "Dunny", or his nickname - "Crack".