Leung v The Queen S161/1999 [2000] HCATrans 434 (4 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S161 of 1999

B e t w e e n -

JACKIE KAI CHU LEUNG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2000, AT 12.30 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court please, I appear for the applicant. (instructed by Van Houten Solicitors)

MR P.S. HASTINGS, QC: I appear with my learned friend, MR F.A. VELTRO, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Wendler.

MR WENDLER: Your Honours, this application raises matters of importance to the law of evidence, in particular, certain categories of evidence which can be immediately identified as being what is sometimes described as voice identification evidence, the legal relationship between voice identification evidence and expert opinion evidence.

GLEESON CJ: Is Australia still in the position where it is only in the Commonwealth jurisdiction and in New South Wales and, I think, the ACT, that this Evidence Act applies.

MR WENDLER: That is right, yes. The other category of evidence I was about to identify is sometimes described for convenience as ad hoc expert evidence. As your Honours know, over the last 20 years law enforcement agencies at both federal and State level have shown a significant enthusiasm for the use of electronic surveillance techniques. Very rarely does a criminal case go by these days when there is not a body of what might be described as electronic surveillance evidence and that sometimes takes the - - -

GLEESON CJ: Often of people speaking in a language which is not understood by members of the jury.

MR WENDLER: That is right, and essentially what occurs then is a translator is called and a special treatment has to be given to his evidence if that evidence goes further and he is, in effect, as was in this case, transmogrified into an expert in the area of voice identification evidence. What is of specific importance, certainly to the law of evidence concerning the State of New South Wales, is the legal relationship between sections 78 and 79 of the Evidence Act.

GLEESON CJ: This case does not stand as authority for any proposition on that subject, does it?

MR WENDLER: No. Well, it does, to this extent, that the expression "specialised knowledge" held within section 79 of the Evidence Act, the Court of Criminal Appeal appears to have held - certainly her Honour Justice Simpson held that that description was broad enough to pick up the ad hoc expert and in that sense it raises matters of importance to the law of evidence.

The other matter that arises is this, that this Court in Bulejcik v The Queen did not finally resolve the test of admissibility in relation to voice identification evidence. For instance, in the State of New South Wales if it can be demonstrated by a witness that he is familiar with the voice of a particular accused or that voice has a distinctive quality, that is the test for admissibility.

The States, I think, of Victoria and I think Western Australia and South Australia use the rule of admissibility. That rather goes to the weight of the evidence. Distinctiveness and familiarity are matters for the weight of the evidence rather than for issues of admissibility so to that extent those matters have not been resolved by this Court.

GLEESON CJ: Mr Wendler, I have often wondered, the concept of an expert and whether evidence is admissible as expert evidence does not necessarily mean the same thing as the concept of opinion evidence, does it? There is a large area of over....., I understand, but there may be some circumstances in which an expert is simply somebody who knows more than the court knows and who is permitted to inform the court of that additional knowledge.

MR WENDLER: Yes, but the real, as it were, issue for determination here is whether or not the idea of expertise is maintained in the Clark v Ryan sense or whether, for instance, in the State of New South Wales, section 79 is capable of giving a broader interpretation to an expert, in short, allowing an ad hoc expert to give evidence.

GLEESON CJ: But was the evidence that you are complaining about in this case evidence from the interpreter, if I can use that expression, that in his opinion the voice that said "A, B, C, D" was the voice that said "X, Y, Z" on the police tapes and if that opinion were accepted, that was the foundation of a conclusion of fact that it was the person identified as the person who said "X, Y, Z" on the police tapes.

MR WENDLER: That is right, but what in effect happened, he was transmogrified from translator to forensic linguist in a very short period of time without demonstrating that he had specialised knowledge gained through experience and learning and in special study.

GLEESON CJ: He had one huge advantage over almost anybody else and that is he could speak the same language as that person.

MR WENDLER: Yes, well that is right. Yes.

GAUDRON J: And he had heard the police tapes several times.

MR WENDLER: Yes, but they were of very, what I would describe, poor quality.

GAUDRON J: And he was able to note whether they were originally Cantonese or Mandarin speakers and note peculiar inflections in voices, was he not?

MR WENDLER: Yes, but he had as his - or the police tape that was so described was only of the duration of about eight minutes and the science of forensic linguist holds that that area of expertise is not the same as fingerprint evidence. It requires a course of special study and learning and experience. To transmogrify this man into a forensic linguist a week before the trial, in my respectful submission, occasioned a miscarriage of justice, a demonstrable miscarriage of justice.

In any case, the real special leave point here is legal relationship between sections 78 and 79 of the Evidence Act of the State of New South Wales and also, generally, the issues concerning voice identification evidence which have not been resolved so far as the admissibility test is concerned by this Court.

It is my respectful submission that this is an appropriate vehicle to resolve issues concerning the admissibility of voice identification evidence and, at the same time, look at the legal relationship between voice identification evidence and expert opinion evidence because often they go hand in hand and they were important matters so far as trial procedure is concerned in this country.

If the Court pleases, that is the nature of the application.

GLEESON CJ: We do not need to hear you, Mr Hastings.

The Court is not persuaded that there has been any miscarriage of justice in the present case and the application for special leave to appeal is refused.

AT 12.38 AM THE MATTER WAS CONCLUDED