R v Fetu [2014] NZHC 2020 (26 August 2014)

Last Updated: 4 January 2019

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-4424 [2014] NZHC 2020

THE QUEEN

v

JOHN FETU

Hearing:	14 and 18 August 2014
Appearances:	AJ Pollett for Crown MS Ryan for Accused
Oral Ruling:	18 August 2014
Reasons:	26 August 2014

JUDGMENT (NO. 2) OF TOOGOOD J

This judgment was delivered by me on 26 August 2014 at Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R v FETU [2014] NZHC 2020 [18 August 2014]

Table of Contents	Paragraph Number
Introduction	[1]
Background	[5]
Crown voice identification evidence	[5]
The proposed defence voice identification evidence	[7]
The Crown’s objections to the proposed defence evidence	[8]
The nature of the Crown’s case	[11]
The voice identification procedure	[13]
The quality of the Crown’s voice identification evidence	[18]
Voir dire examination of proposed defence witness	[21]
Is the proposed voice identification evidence expert opinion requiring pre-trial disclosure?	[27]
Reliability	[34]
Should the evidence be admitted despite the late disclosure to the Crown?	[40]
The consequential orders	[42]
Mr Green’s opinion about Mr Fetu not disguising his voice not admissible	[44]

Introduction

[1] The accused, John Fetu (also known as Timote Tupou), is one of 12 accused on trial on an indictment alleging the manufacture of methamphetamine and associated dealing in methamphetamine and pseudoephedrine. Mr Fetu faces five counts of possessing pseudoephedrine for the purpose of supply to another person.

[2] The Crown has called voice identification evidence from which it will invite the jury to conclude that Mr Fetu was a participant in certain telephone conversations. The Crown relies on these conversations to prove that Mr Fetu was in possession of quantities of pseudoephedrine on five occasions for the purpose of supply to others. Mr Fetu disputes the identification.

[3] Mr Ryan, counsel for Mr Fetu, interrupted his cross-examination of one of the Police witnesses to indicate, in the absence of the jury, that he wished to put questions referring to evidence which he proposes to call from a defence witness, a Mr Green, drawing a different conclusion as to the identification of Mr Fetu as a participant in the challenged conversations. Ms Pollett objected to the proposed evidence on a number of grounds.

[4] I ruled that the defence evidence would be admissible and made consequential orders. These are my reasons for doing so, briefly expressed.

Background

Crown voice identification evidence

[5] The Crown’s voice identification evidence has been given by two Police officers. First, Detective Aho told the Court that he spent many hours listening to recorded conversations while transcribing them for the purpose of proving the content in relation to this trial. While he did not purport to recognise Mr Fetu’s voice, he has given the opinion that, on each of the occasions on which conversations are attributed to Mr Fetu, the same person is speaking. He also attributes the conversations to
Mr Fetu by reference to the content, including the use of the nickname “Motz” or “Mots” and other corroborating evidence.

[6] Second, Detective Norris, who was the officer responsible for arresting Mr Fetu and dealing with him over a period of some four hours, gave the opinion in the course of a formal voice identification procedure that Mr Fetu was speaking in the three conversations played to Mr Fetu in the presence of Detective Norris and Detective Aho at the Police Station.

The proposed defence voice identification evidence

[7] Mr Ryan told me that, in rebuttal of the Crown’s voice identification evidence, he intended to adduce the evidence of Mr Green, a former Police officer who is now a private investigator. Mr Ryan said that Mr Green had conducted his own assessment of whether it was Mr Fetu’s voice in the intercepted conversations, and had concluded that he could not be sure of that. Mr Green reached his conclusion by first listening to the intercepted conversations, then meeting with Mr Fetu to conduct a role-play in which Mr Fetu read the words attributed to him in the conversations transcribed by Detective Aho, while Mr Green read the words attributed to the other participant. In the course of this encounter, which lasted about two hours, Mr Green and Mr Fetu also engaged in some casual conversation.

The Crown’s objections to the proposed defence evidence

[8] Ms Pollett’s first objection to the proposed defence evidence was that it was expert evidence of opinion which had not been disclosed to the Crown at least 10 working days before the trial, as required by s 23(1) of the Criminal Disclosure Act 2008 (“the CDA”). Next, counsel submitted that, if the Court was inclined to admit the evidence as expert evidence notwithstanding any breach of the CDA, it should not do unless, by analogy with the requirements of s 46 of the Evidence Act 2006 for the leading of prosecution voice identification evidence, the identification was made in circumstances which have produced a reliable identification. If the identification was unreliable, it would not be probative. That would mean it would be irrelevant and inadmissible under s 7 of the Evidence Act. Further, unreliable evidence would not
meet the substantial helpfulness test for expert evidence in s 25(1) of the Evidence Act.

[9] Alternatively, Ms Pollett argued that, if the proposed evidence is not expert evidence of which notice was required to be given, it should be treated as lay opinion evidence which is inadmissible unless it comes within s 24 of the Evidence Act. She submitted that the evidence was not of the kind contemplated by s 24 which addresses evidence concerning matters such as apparent age, speed, the physical and emotional state of people, and whether a person is under the influence of drink.

[10] Both Mr Ryan and Ms Pollett agreed that, if the evidence was held to be admissible, the audio-visual recording of the role-play should be played to the jury.

The nature of the Crown’s case

[11] The principal evidence against Mr Fetu upon which the Crown relies is contained in text messages sent by cell phone and intercepted voice communications, mainly between Mr Fetu and a co-accused, Zebulin Davoren. Mr Davoren is alleged by the Crown to be one of the principal offenders and leaders of the organised criminal group.

[12] It is necessary for the Crown to satisfy the jury that the communications which the Crown attributes to a particular accused as a sender or receiver of a recovered text message, or as a participant in an intercepted voice communication, are correctly attributed. Against Mr Fetu, the Crown relies on the evidence of Detective Aho and Detective Norris in this respect, but not exclusively. The Crown attributes crucial text messages and conversations to Mr Fetu by reference to their content and other corroborative evidence, including an alleged admission to Detective Norris by Mr Fetu that he was using the Audi vehicle in which the Police say he was seen at crucial times during the surveillance operation.

The voice identification procedure

[13] The evidence of Detective Norris and Detective Aho as to what took place during the voice identification procedure establishes that Detective Aho explained to Mr Fetu that his job had been to listen to and oversee the transcribing of the conversations that had been recorded during the Police operation and to ensure that the voices in those conversations were identified. Mr Fetu said that he understood. He was then given a formal Bill of Rights Act warning and caution and, when asked whether he understood his rights, said that he did.

[14] Mr Fetu’s personal details were recorded in the name of “Timote Tupou”; Mr Fetu did not give the Police a cell phone number. He answered “Yes” when asked if he was happy to listen to the recorded conversations, and then signed that part of the form.

[15] The first conversation was then played to him. The transcribing officer then said that he believed that Mr Fetu was talking and asked if that was right. Mr Fetu replied, “No comment, I need to speak to my lawyer about that.” When asked who the other person in the conversation was, Mr Fetu replied, “I don’t know, you need to speak to my lawyer about it.” In Mr Fetu’s presence Detective Aho then asked Detective Norris whether he recognised “the suspect’s voice” in the recording; Detective Norris replied, “Yes.” Mr Fetu refused to sign the form at that point but it was signed by both Detective Norris and Detective Aho.

[16] The second and third conversations were then played, following the same routine as for the first. On each occasion, when Mr Fetu was told that Detective Aho believed that it was him talking in the conversation, and when he was asked about the other person speaking, Mr Fetu said the Police should speak to his lawyer. On each occasion, Detective Norris confirmed that he recognised the suspect’s voice in the recording. After the questions following the playing of the second and third conversations, Detective Aho and Detective Norris signed the form at the appropriate point but Mr Fetu refused to sign.
[17] I ruled prior to the trial that this evidence was admissible.¹

The quality of the Crown’s voice identification evidence

[18] Section 46 of the Evidence Act provides that voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

[19] In ruling that the Crown’s voice identification evidence should be admitted, I was required to consider the quality of the evidence in light of the fact that evidence of voice identification, like evidence of visual identification, can be unreliable.

[20] I was satisfied that the circumstances in which Detective Norris identified Mr Fetu as a participant in the three recorded conversations played to him in Detective Norris’s presence produced a reliable identification; that is, one which was reasonably capable of acceptance by the jury. The detective had an opportunity to speak with Mr Fetu over the course of some four hours before the recordings were played in controlled circumstances. I held there was nothing to indicate that the evidence should not be put before the jury, who will have the ultimate responsibility for determining whether or not Detective Norris’s opinion should be accepted as accurate.

Voir dire examination of proposed defence witness

[21] After reading the proposed evidence and hearing from counsel, it was not entirely clear to me whether Mr Green’s uncertainty as to the identification of Mr Fetu was based on his hearing Mr Fetu’s voice on the two occasions on which they met or whether he is relying partly or exclusively on a comparison between the recordings of the recited conversations and the intercepted recordings. Also, I accepted Ms Pollett’s submission that the reliability of Mr Green’s evidence required assessment before its admissibility could be determined. In those circumstances I considered it necessary to hear the recited recordings and conduct a voir dire examination of Mr Green.

¹ R v Fetu [2014] NZHC 1307.

[22] Mr Green said that he had spent 45 minutes listening to the intercepted conversations before he first met Mr Fetu some two days prior to recording the role- play. At that first meeting he spent about an hour conversing informally with Mr Fetu and they conversed for another five minutes while the role-play was being set up and organised at the second meeting. On that occasion there were another 15 minutes of casual conversation.

[23] Mr Green acknowledged that he had no technical expertise in voice recognition but his experience as a Police officer involved approximately 22 operations involving the interception of voice communications by listening devices. He said that he would have spent many thousands of hours listening to intercepted communications, including during about seven operations which involved his listening to live interceptions. He considered that in that time he had formed an ability to compare and contrast different voices he heard.

[24] Mr Green said that in the chambers of Mr Fetu’s counsel he set up a dictaphone and a video recorder to record the role-play. It involved Mr Fetu and he reading the transcripts of each of the intercepted conversations relied upon by the Crown. Mr Fetu read the parts of the conversations attributed to him; Mr Green read the parts of the conversations attributed to the other participant.

[25] Mr Green said that because they were reading from the transcripts, the flow and cadence of the role-play recordings were quite different from those elements of the intercepted communications, the role-play conversations being more hesitant and generally conducted at a slower pace. Mr Green accepted in cross-examination that the role-play was not a natural process and that Mr Fetu and he were not speaking as one ordinarily would in conversation.

[26] Mr Green said that he did not think Mr Fetu was attempting to disguise his voice during his meetings with him and during the recording of the role-play. When he was asked to compare the voice of the person said to be Mr Fetu in the intercepted communications with Mr Fetu’s voice as observed by him in their meetings he said:

I can’t be sure they were the same person. I’m not saying they are the same person or they’re not the same person. I’m just not sure from what I’ve heard.

Is the proposed voice identification evidence expert opinion requiring pre-trial disclosure?

[27] Addressing Ms Pollett’s objection to the evidence on the grounds that it is sought to be adduced in breach of the disclosure requirements of the CDA, it is necessary to consider whether Mr Green is an expert and whether his proposed evidence is expert evidence.

[28] Section 23 of the CDA provides:

23 Disclosure by defendant of evidence to be given by expert witness

(1) If a defendant proposes to call a person as an expert witness, the defendant must, at least 10 working days before the date fixed for the defendant's trial or within any further time that the Court may allow, disclose to the prosecutor—

(a) any brief of evidence to be given, or any report provided by that witness; or

(b) if that brief or any such report is not then available, a summary of the evidence to be given and the conclusions of any report to be provided.

(2) Where the defendant, under subsection (1)(b), provides only a summary of evidence to be given or conclusions of any report to be presented, the defendant must disclose to the prosecutor the brief of evidence to be given or the report provided by that witness as soon as possible after it becomes available.

[29] The expression “expert witness” is defined in s 6 of the Act as follows:

expert witness includes a person who will give opinion evidence of a medical, scientific, or technical nature.

[30] I do not consider that Mr Green’s evidence amounts to “opinion evidence of a medical, scientific, or technical nature”, but the definition is not exclusive. I agree with the view of Allan J in R v Cooper² that the use of an open definition of the term “expert witness” in s 6 of the CDA evinces a legislative intention that the ordinary meaning of that expression, both at common law and under the Evidence Act, would apply. The position at common law is reflected in the relevant definitions in s 4 of the Evidence Act. There, the term “expert” means:

² At [18].

... a person who has specialised knowledge or skill based on training, study, or experience.

[31] In Shepherd v R,³ the Court of Appeal held that the definition of an expert in the Evidence Act “was, like the common law rule, intended to be wide and flexible.”

[32] Mr Green had considerable voice identification experience as a Police officer listening to intercepted communications in a substantial number of cases. He also listened to Mr Fetu’s voice over a period of some two hours specifically for voice identification purposes. I was satisfied that in both respects he is qualified as an expert both at common law and under the definition in s 4 of the Evidence Act. His evidence also comes within the definition of “expert evidence” in s 4 as:

... the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion.

[33] This conclusion is consistent with the pre-Evidence Act approach taken by the Court of Appeal in R v Menzies,⁴ a case which involved consideration of the then relatively new investigative technique of intercepting private communications by listening device under warrants issued pursuant to the Misuse of Drugs Amendment Act 1978. The Court referred to the Police transcriber as “a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc.”⁵ Menzies concerned the production of transcripts of the intercepted communications as the opinion of the transcriber as to the content of the communications, but the concept of an ad hoc expert can be applied equally, where there is a proper factual foundation, to an opinion as to voice identification. A similar reference to a Police witness as an “expert ad hoc” was made in R v Howe,⁶ a case involving the visual identification of suspects from video-taped recordings of anti-Springbok Tour demonstrators.

Reliability

[34] I accepted Ms Pollett’s submission that to be admissible as evidence of expert opinion, evidence of the type proposed to be given by Mr Green would have to be

³ Shepherd v R [2011] NZCA 666, [2012] 2 NZLR 609 at [26].

⁴ R v Menzies [1982] NZCA 19; [1982] 1 NZLR 40 (CA).

⁵ At 49.

⁶ R v Howe [1982] 1 NZLR 618 (CA) at 627.

sufficiently reliable to meet the test of relevance in s 7 of the Evidence Act. It would also need to be reliable to justify the conclusion under s 25(1) of the Evidence Act that the jury was likely to obtain substantial help from Mr Green’s opinion in ascertaining facts relevant to the determination of the charges against the accused.

[35] In making that assessment, I considered it to be convenient to apply by analogy the test for the admission of voice identification evidence by the prosecution as set out in s 46 of the Evidence Act. That section provides that voice identification evidence offered by the prosecution is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification. It is clear that the test does not require the Court to be satisfied that the identification is correct, but only that the circumstances are such as to entitle the jury to conclude, if they see fit, that the opinion is right.

[36] “Voice identification evidence” is defined in s 4 of the Evidence Act as meaning:

evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person....”

[37] Mr Green’s proposed evidence does not fit squarely within that definition because it is an assertion to the effect that he could not be sure that the voice attributed to Mr Fetu in the recording of the intercepted communications was his voice. I agree with the statement of Woodhouse J in R v Tang⁷ that the definition in s 4 should not be read down by undue literalism, but in any event it is not necessary to fit the evidence within that definition to make the test in s 46 analogous.

[38] I had no difficulty determining that Mr Green’s prior general experience of listening to intercepted communications, and the particular experience of listening to Mr Fetu’s voice over two hours of conversation, was capable of producing a reliable opinion. I concluded, therefore, that the evidence of his uncertainty as to the attribution was an expert view which could be taken into account by the jury in determining whether it was satisfied that the Crown’s attributions were correct.

⁷ R v Tang (No. 2) HC Auckland CRI-2009-004-13439, 27 June 2011 at [7].

[39] In those circumstances, I concluded that the proposed evidence of Mr Green is admissible expert evidence but that it should have been disclosed to the Crown in accordance with s 23(1) of the CDA.

Should the evidence be admitted despite the late disclosure to the Crown?

[40] The consequences of non-disclosure are those set out in s 34 of the CDA, which provides:

34 Undisclosed information

(1) This section applies if, at the hearing or trial of a defendant, the Court is satisfied that—

(a) evidence sought to be adduced by a party is, or is based on, information that should have been disclosed to the other party under this Act; and

(b) that information was not disclosed.

(2) The Court may—

(a) exclude the evidence; or

(b) with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or

(c) admit the evidence if it is in the interests of justice to do so.

(3) The Court—

(a) must not order the exclusion of evidence sought to be adduced by the defendant (whether of an alibi, as expert evidence, or otherwise) if it appears to the Court that the defendant was not given notice in accordance with this Act of the requirements of this Act; but

(b) if paragraph (a) applies, must adjourn the hearing if the prosecution requests an adjournment.

(4) Subject to subsection (3), subsection (2) does not limit the powers of a Court under any other enactment or rule of law to deal with any failure by a party to comply with the directions of the Court under this Act.

[41] I was satisfied that it would not be in the interests of justice to exclude the proposed evidence. The Crown’s proposition that Mr Fetu was a participant in the intercepted conversations is based in part upon Detective Norris’s experience of
listening to Mr Fetu’s voice on and off over a four-hour period following his arrest. The identification was made in circumstances which I considered, in ruling that evidence admissible, to be capable of producing a reliable identification. Given that the Crown is permitted to rely on that type of evidence as part of its case against Mr Fetu, it would be unjust to exclude Mr Green’s evidence in rebuttal.

The consequential orders

[42] I directed the Crown to recall Detective Norris to enable further cross- examination of him by Mr Ryan on the extent of his prior experience of hearing Mr Fetu’s voice, in comparison to the experience of Mr Green prior to forming his opinion about the attributions. I ruled that it would not be necessary to recall Detective Aho to enable Mr Ryan to cross-examine him further on the accuracy of his attribution to Mr Fetu of certain intercepted statements, because Detective Aho’s attribution was not related to voice recognition but to other matters relevant to the intercepted communications.

[43] In order to mitigate the effect of the late disclosure, I ruled that if Mr Ryan leads the proposed evidence from Mr Green, Detective Aho may be recalled by the Crown as a rebuttal witness and subjected to cross-examination by Mr Ryan on any such evidence. I also ruled that Detective Aho should be permitted to be present in Court while Mr Green gives evidence.

Mr Green’s opinion about Mr Fetu not disguising his voice not admissible

[44] I upheld Ms Pollett’s objection to Mr Green giving evidence of his opinion that Mr Fetu did not attempt to disguise his natural voice during the recording of the role- play. In expressing this view, Mr Green was plainly not expressing an expert opinion and he expressly disavowed any particular ability to assess Mr Fetu’s bona fides. His evidence was not admissible as lay opinion evidence either.

[45] I directed that, if Mr Green gives evidence, the video recording of the role-play should be played to the jury. That may assist the jury to determine whether Mr Fetu was attempting to disguise his voice, an issue which is very much a jury question.

........................................

Toogood J