R v Omar Ahmed Omar Scc [1991] ACTSC 27 (28 March 1991)

SUPREME COURT OF THE ACT

THE QUEEN v. OMAR AHMED OMAR
S.C.C. No. 2 of 1991
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - evidence - admissibility of evidence of prior criminal conduct of accused - whether admissible to prove offence charged - res gestae - need for evidence to go beyond showing a propensity to commit crime.

Criminal Law - evidence - co-conspirator's rule - statements by co-offenders in furtherance of common purpose - application of co-conspirator's rule to charge of substantive offence - discretion to exclude admissible evidence in fairness to accused.

Criminal Law - evidence - voice identification - no rule that admissibility depends on distinctive features of voice of accused or familiarity of witness with voice of accused - whether evidence admissible identifying voice speaking language other than English - discretion to exclude in fairness to accused.

Harriman v. The Queen (1989) 63 ALJR. 694

Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1

R v. Jackson, R v. Hakim (1987) 11 NSWLR 318 at p 324

The Queen v. Corak and Palmer (1982) 30 SASR 404

Ahern v. The Queen [1988] HCA 39; (1988) 165 CLR 87

Davidovic v. The Queen (Federal Court, unreported, 14 December 1990)

R v. Smith (1984) 1 NSWLR 462

R v. Jones and Harris (1989) 41 A Crim R 1

HEARING

CANBERRA
28:3:1991

DECISION

Admissibility of Evidence of Prior Conduct of Accused and of Co-offenders
The accused was arraigned on a single count of possessing on 30 August 1990 a traffickable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to other persons, contrary to s.164 of the Drugs of Dependence Act 1989.

2. He was committed for trial on a further charge of conspiracy, namely that between 1 July and 30 August 1990 he conspired with Kim Rhonda McPhee, Neil John Thomason and Victoria Louise Rushton, to commit an offence under a law of the Territory, namely to sell a traffickable quantity of a prohibited substance, namely heroin, to other persons.

3. The charge of conspiracy appeared on a draft indictment which was handed up at a directions hearing on 9 March 1991 but was not on the indictment presented to the Court when the accused was arraigned on 11 March 1991.

4. Before opening the case to the jury, counsel for the prosecution indicated that he wished to call evidence which he expected would be objected to by the defence. This evidence, on the face of it, was directly concerned with the alleged conspiracy, but the prosecution contended that it was nevertheless admissible on the count for the substantive offence of possession of heroin for the purpose of sale or supply. It was submitted on behalf of the prosecution that the evidence was admissible as part of the res gestae or alternatively evidence of acts and declarations of co-offenders made in pursuance of a common criminal purpose.

5. The prosecution alleged in general terms that in July and August 1990 the accused and the persons named in the conspiracy count in the draft indictment were part of a criminal combination to sell or supply heroin to persons in Canberra, and that sales of heroin took place pursuant to that combination from time to time to various persons at various places in Canberra and at various times during that period. There were several strands of evidence which went to prove that combination and sales made pursuant to it. Prior to 30 August 1990 there was police surveillance of telephone conversations made to or from premises at Braddon, Queanbeyan and Lyons. Telephone conversations between the accused and one or other of the persons named in the conspiracy count were recorded on tape. Other telephone conversations between the co-offenders and other persons were also recorded on tape. There was also visual surveillance of a meeting between one of the co-offenders and another person whose description is alleged to correspond with that of one of the persons taking part in the telephone conversations, at which meeting the co-offender supplied heroin to that person. It was contended on behalf of the prosecution that all this evidence goes to show that the accused and the other three co-offenders were acting together in the organized sale of heroin in Canberra.

6. Ultimately there was a police raid on premises at 7 Ossa Place, Lyons on 30 August 1990. The accused was seen to drop five aluminium foil packages containing a total of 70 smaller so-called foils. A smaller quantity of heroin was found in three plastic bags in a film container in the accused's clothing. The total quantity of heroin contained in the packages and film container was over 4 grams. The prosecution alleged that the heroin mix was in the joint possession of Kim Rhonda McPhee and the accused, for the purpose of supply to other persons. There were some traces of heroin found on other items located on the premises.

7. When spoken to by the police following the raid, the accused at first admitted that the film cannister was his and that it contained heroin. Later he, in effect, denied that the foils had been or were in his possession, claiming that everything belonged to McPhee.

8. Tapes of some conversations between himself and the co-offenders were played to the accused during an interview with the police at Belconnen Remand Centre on 24 September 1990. The general import of what the accused said during the recorded interview was that he maintained that he himself was not part of any combination to supply heroin to anyone else. The prosecution submitted, nevertheless, that some of his answers might be construed as admissions implicating him in a conspiracy to supply heroin.

9. The prosecution tendered evidence of conversations between the accused and the co-offenders and of the surveillance of the co-offenders as going to show that there was an agreement between the four that one or other of them would sell heroin to other persons, particularly persons who made contact with them by telephone call to the premises at Braddon, Queanbeyan and later at Lyons. The prosecution submitted that such agreement was relevant to show the purpose for which the accused was in possession of the heroin at the premises at Lyons on 30 August 1990.

10. The prosecution relied on this material as being relevant as part of the so-called res gestae in accordance with the decision of the High Court in Harriman v. The Queen (1989) 63 ALJR 694. It is not necessary to discuss that case at length. It was concerned with a question whether prior commission by Harriman of drug offences in concert with a man called Martin should have been admitted on a charge of being knowingly concerned in the importation of heroin into Australia by Martin. The circumstances were in the opinion of four members of the High Court such as to justify the reception of the prior conduct even though it was capable of showing a propensity to commit a crime similar to that charged.

11. At p 713 McHugh J. said:
"If evidence which discloses other criminal conduct is

characterised as part of the transaction which embraces the
crime charged, it is not subject to any further condition of
admissibility. Evidence which directly relates to the facts in
issue is so fundamental to the proceedings that its
admissibility as a matter of law cannot depend upon a condition
that its probative force transcends its prejudicial effect. No
doubt in a criminal trial a judge always has a general
discretion to exclude prejudicial evidence. But it is difficult
to see how evidence directly related to the very facts in issue
can be excluded simply because it reveals other criminal conduct
on the part of the accused."

12. Brennan J. said on p 696:

"Evidence that an accused has committed other offences
of the same or similar character is inadmissible unless the
evidence is of such probative force in the instant case that it
would be an affront to common sense not to admit it."

13. Later, on the same page his Honour said:

"However, where evidence does show more than the mere
commission of another offence or predisposition to commit an
offence and is otherwise probative of the offence charged or of
a fact in issue, there is no rule of evidence which compels its
exclusion. If, as a matter of human experience, the evidence
tends to establish the offence charged or a fact in issue
otherwise than by showing merely the commission of another offence
or a propensity to commit an offence, the evidence is admissible."

14. In my view, part of the challenged evidence in the present case meets all these tests. In particular it meets what might be regarded as the highest of those tests as propounded by Brennan J. The evidence which, otherwise admissible, tends to show that the accused was part of the organized distribution of heroin through phone calls to the premises at Braddon, Queanbeyan and Lyons in early August 1990 directly relates to the purpose for which the accused was in possession of heroin found in his possession at Lyons on 30 August 1990. The record of interview and the evidence of his own conversations with other persons, who, from those conversations alone may be taken to be part of the organization of the distribution of heroin in Canberra at the time, was admissible on that issue. That issue was a live issue in the case because, although the prosecution may, if it proves possession of more than the traffickable quantity of 2 grams, rely upon the statutory provision that the possession is deemed to be for the purpose of sale or supply, the accused may seek to prove that he was in possession of the heroin other than for the purpose of sale or supply. The record of interview and the conversations in which the accused himself took part, go to rebut a defence case of that nature. That evidence may show a propensity to commit crime, but it goes much further. In my view, it would be an affront to common sense to exclude it.

15. The admissibility of the evidence of police surveillance of the co-offenders taking part in conversations outside the presence of the accused, is another matter. Such evidence cannot be allowed in as part of the res gestae as in Harriman because it is not evidence of incriminating conduct on the part of the accused. It is simply evidence of criminal conduct on the part of other persons. In Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1, the High Court at p 7 of the judgment distinguished between evidence allowed in as part of the res gestae and evidence given of things said and done by one of several acting in pre-concert with the accused and in furtherance of a common criminal design. At p 6 of the judgment, it was said that upon a charge of conspiracy "evidence may readily be led in what each party to the conspiracy alleged may do or say in furtherance of the common purpose".

16. This point was taken up by Roden J. in R v. Jackson, R v. Hakim (1987) 11 NSWLR 318 at p 324:

"On the other hand, as is suggested in Tripodi and
elsewhere, where it is not conspiracy but a substantive offence
allegedly committed pursuant to conspiracy that is charged, such
evidence may not be led until there is prima facie evidence of
the existence of the conspiracy and of the participation of both
the accused and the alleged co-conspirator, the evidence of
whose acts is sought to be led. That is no doubt because of the
prejudice that can be done if the evidence were led
and were never shown to be relevant, although there was other
independent material capable of supporting a conviction."

17. Similarly in The Queen v. Corak and Palmer (1982) 30 SASR 404, King C.J. at pp 405-6 said as follows:

"An accused may be convicted on a charge of a
substantive offence without proof of common purpose between the
accused on the one hand and the maker of the statement or the
doer of the act sought to be introduced into evidence on the
other. There is a danger of misuse. A jury might be influenced
to convict by evidence of such statement or act although it
might turn out that, there being no common purpose, it ought not
to be used against the accused. On trials of substantive
charges, at least where proof of the charge is not inseparably
linked with proof of common purpose, the evidence is not
admitted unless there is some other reasonable evidence which
makes the existence of a common purpose a real possibility."

18. In Ahern v. The Queen [1988] HCA 39; (1988) 165 CLR 87 at p 99, the High Court said as follows:

"In Tripodi the Court was speaking of the admission in
evidence of the acts and declarations of others outside the
presence of the accused in proof of larceny rather than
conspiracy, but, as we have said, the principle upon which such
evidence is admitted extends beyond cases of conspiracy. The
significant distinction between conspiracy and other offences
for present purposes is that indicated in Tripodi, namely, that
on a charge of conspiracy combination is also an element in the
offence and not merely a ground for the admission of the
evidence. The question does not, therefore, arise in cases
other than conspiracy of the use of evidence of the acts and
declarations of others to prove the combination except as
evidence of separate acts from which a combination might be
inferred. Once there is reasonable ground for inferring a
combination in cases other than conspiracy, acts and
declarations of the participants in furtherance of the common
purpose may be used to prove, not the fact of participation in
the combination, but the offence charged."

19. And on p 100 the Court continued as follows:

"Where an accused is charged with conspiracy, evidence
in the form of acts done or words uttered outside his presence
by a person alleged to be a co-conspirator will only be
admissible to prove the participation of the accused in the
conspiracy where it is established that there was a combination
of the type alleged, that the acts were done or the words
uttered by a participant in furtherance of its common purpose
and there is reasonable evidence, apart from the acts or words,
that the accused was also a participant."

20. In Davidovic v. The Queen (Federal Court, unreported, 14 December 1990), the Court after considering Ahern and Trapodi said at pp 17-18:

"The rule that acts done and statements made by another
person in the absence of the accused are admissible against the
accused if done or made in furtherance of a common criminal
purpose to which both are parties is the same whatever the
charge. The principles which governed the admission of the tape
recordings into evidence on count one applied also to count two:
Ahern at p 100 and The Queen v. Corak and Palmer. Where the
charge is one of conspiracy the evidence may be more readily
admitted as combination is an element of the offence: Tripodi at
p 6. Where only a substantive offence is charged the admission
of the evidence is conditioned on there being reasonable
evidence from which the accused's participation in the
combination may be inferred, but once this threshold is passed,
the evidence "may be used to prove, not the fact of
participation in the combination, but the offence charged":
Ahern p 99. That threshold was passed in the present case, and
the evidence was available to prove both the object of the
conspiracy and the purpose of the appellant's possession of the
heroin."

21. It is clear from the above, particularly the passages in Ahern, that the view is consistently taken that the rules for admissibility of the acts and declarations of persons acting in concert with the accused in conspiracy cases are no different from those applying in cases of substantive offences, except that, as a matter of discretion, evidence admissible as a matter of law according to such rules will be more readily allowed to go to the jury in the trial of a conspiracy case. Conversely, such evidence will be regarded with greater caution before allowing it to go to the jury in the case of a trial for a substantive offence, having regard to the greater possibility that its reception may operate unfairly against the accused in the latter situation.

22. The present case is not one where proof of the charge of possession by the accused for the purpose of supply was inseperably linked to proof of a common purpose with the co-offenders. Proof of such a common purpose might well have been of assistance to the prosecution in that it made or might have made the prosecution case more persuasive than if the prosecution case has to rest without it. But proof that there was such a common purpose was by no means essential to proof of the charge of possession by the accused at the relevant time of heroin for the purpose of supply to another or to others. Indeed, if the jury accepted that the accused was in possession of more than 4 grams as alleged, then the accused would be deemed to be in possession for the purpose of supply, and proof of actual purpose would become relevant only to rebut any case the accused might wish to present that he had the heroin in his possession for a purpose other than supply. In this respect regard should be had to the passage in the judgment of Toohey J. in Harriman where his Honour said as follows at p 702-3:

"As a general observation, the same may be said of the
admissibility of any evidence. In a criminal trial there is an
indictment. The admissibility of evidence depends upon its
relevance to issues raised by the indictment including defences
available to the accused. If the accused is concerned that evidence
sought to be adduced is relevant only to a defence upon which he
does not intend to rely and that it is prejudicial to him, his
counsel may so inform the court. Presumably the evidence will not
then be pressed or, if pressed, it is likely to be rejected because
it is not probative of any disputed fact. Equally, a particular
line of defence may serve to point up the admissibility of the
evidence to which objection is taken."

23. In the present case, counsel for the accused did not indicate that he intended to abandon any reliance upon a failure by the prosecution to prove that the heroin in question was in the possession of the accused. On the contrary, as I understand it, the alleged joint possession by McPhee and the accused was at all times contested on behalf of the accused in the trial. The plea of not guilty put the allegation of possession in issue. The evidence of what the co-offenders said to others outside the presence of the accused did not directly relate to the question whether the heroin in question was in the possession of the accused (although it was in accordance with the common purpose rules relevant to the issue of purpose). The evidence of those acts and declarations, however, is strongly prejudicial, regardless of the issue. That prejudice could so affect the trial that it might contribute to a finding by the jury that the accused was in possession of the heroin, although the evidence was not relevant to that issue, and despite an instruction to the jury to that effect.

24. There is, moreover, another aspect that requires attention. The evidence of the telephone conversations between the co-offenders and the customers or potential customers of the heroin distribution business were by their very nature events which occurred other than in the presence of the accused. He was, accordingly, in no position to dispute that such conversations took place and would have been severely disadvantaged in challenging witnesses who might be called to prove that such conversations did take place. That is a difficulty of course that will always arise when the co-conspirators rule or the common purpose rule is invoked to justify reception of evidence of events which took place outside the sight and hearing of the accused. But this accused is doubly disadvantaged. None of the parties to the conversations, as I understand it, were to be called to give evidence. The conversations were proved by means of recording devices and the evidence of those who set up the recording devices. The accused was not able to cross-examine those who took part in the conversations as to what was intended by some of the esoteric, ambiguous and cryptical language used in the conversations. It is not necessary to set out the content of the conversations in these reasons. It is sufficient to say that on the face of it they might have been taken by the jury to be supportive of the allegation that the co-offenders were party to a criminal purpose of the type alleged against this accused, and that the conversations were entered into in furtherance of that common purpose. To that I add that there was, in my view, "reasonable evidence" in the statement made by the accused to the police and in the recorded conversations between him and the co-offenders that the accused was a party to the same agreement as that to which the co-offenders were party. Yet, the "reasonable evidence" was by no means clear, from any source, as to what exactly was the agreement to which the co-offenders were party. Nor did the "reasonable evidence" point precisely to what agreement it was to which the accused was party. There may have been one agreement or several. That lack of precision must have reduced substantially the probative value of the evidence of the surveillance of the co-offenders and of the conversations between the co-offenders and other persons. When that reduced probative value was weighed against the strong prejudice to the accused if the evidence was allowed into the trial, the conclusion must be reached that the evidence, if allowed into the trial, would operate unfairly against the accused. Therefore in the exercise of discretion I excluded that evidence from the consideration of the jury.
Admissibility of Voice Identification Evidence

25. The prosecution wished to call evidence of two telephone conversations alleged to be between the accused and another unidentified person. These conversations were in the Arabic language and a translation into English was prepared and made available to me in the absence of the jury. A translator, Mr Mohammed Berjaoui, gave evidence in the absence of the jury of the accuracy of the translation.

26. An audio tape of the conversation was played in the presence of the jury. I assumed that the recording of the conversations by means of a telephonic listing device would be admitted or formally proved. A police witness, Sergeant Lawrence, told the jury that she obtained the tapes from another police source. She said that she is acquainted with the voice of the accused having heard him speak in English on at least one occasion in a lengthy police interview. She has also heard his voice on other occasions on several other tapes. There was independent evidence that the voice of the accused is to be heard in English on those tapes. The jury has also heard those tapes.

27. Mr Berjaoui, who speaks both Arabic and English and has some NAATI qualifications, gave evidence in the absence of the jury that the voice of the accused can be identified speaking Arabic on the challenged tapes. Mr Berjaoui said that the voice has a distinct Australian-North Lebanese accent. He also said that it is the same voice heard speaking English and otherwise identified as the voice of the accused on Exhibit M, which is an audio tape of the record of interview with police on 25 September 1990. Counsel for the accused initially objected to the admission into evidence of the tapes in Arabic and of the translation on the ground that the voice of the accused had not been identified at all, but that objection was withdrawn on the light of the evidence subsequently given by Mr Berjaoui.

28. Voice identification is notoriously difficult to evaluate. Several recent decisions in Australian courts of criminal appeal have discussed the problems arising out of evidence of identification of a voice alleged to be that of an accused person. However, none of these deal with the question of identifying a voice in a language other than English. I do not subscribe to the view that in 1991 Australian juries are totally incapable of understanding anything said in a language other than English, but obviously there is a need for considerable caution. Where the voice speaks in English, the New South Wales courts consider that the voice must be distinctive or a witness seeking to identify it must be familiar with it before the witness is allowed to give evidence identifying the voice as that of the accused: R v. Smith (1984) 1 NSWLR 462. In Victoria the view is taken that there are no particular rules of admissibility relating to voice identification save that there is a residual discretion to exclude it as there is to exclude any otherwise admissible evidence having regard to the over-riding principles of the advancement of justice and securing a fair trial: R v. Jones and Harris (1989) 41 A Crim R 1.

29. I think with respect that the Victorian approach is the preferable one. The factors mentioned in Smith are no doubt appropriate to take into account when deciding whether the probative value of voice identification evidence outweighs its likely prejudicial effect.

30. It is necessary to have regard to the contents of the tapes as translated into English. They are full of ambiguities which may or may not advance the prosecution case. One conversation occurred when the accused rang a Melbourne telephone number and, according to the translation, spoke to a man there referring to what has been translated as "speed", "quick" and "the white". There is reference by the other person to "one thousand" and "one thousand five hundred" and the other person asks "are we guilty?". The accused is heard to ask for "God to look after us". In the other conversation the accused is heard to telephone a person to whom he speaks as his father. There was reference to "pepper" and "to tell Kalid not to bring the pepper" and to "bring some of the other pepper". The reference to pepper could well be taken to be reference to heroin or at least to some illicit substance. But, in my view, the ambiguity of all that taken into consideration against the undoubted prejudice to the accused if the evidence was allowed in, led to the conclusion that whilst the evidence might be admissible, its probative value was so slight in comparison to its likely prejudicial effect that it should be kept from the jury and I so ruled.