R v Momir Miladinovic [1992] ACTSC 50; (1992) 109 ACTR 11; (1992) 107 FLR 241 (18 May 1992)

SUPREME COURT OF THE ACT

THE QUEEN v. MOMIR MILADINOVIC
No. SCC 67 of 1990
Criminal Law - Evidence
[1992] ACTSC 50; (1992) 109 ACTR 11
(1992) 107 FLR 241

COURT

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

CATCHWORDS

Criminal Law - evidence - identification evidence - rulings on voir dire on admissibility of voice identification evidence.

Evidence - identification evidence - voice identification compared with visual identification - probative value of voice identification evidence - whether voice equivalent of identification parade necessary - admissibility of transcript of contents of cassette.

Evidence - admissibility of hearsay evidence - flexible application of hearsay rule.

R v. Reynolds and Others (unreported, 2 October 1991)

R v. Omar Omar (unreported, 28 March 1991)

R v. Smith (1986) 7 NSW LR 444

R v. Brownlowe (1986) 7 NSW LR 461

R v. Harris and Others (No. 3) (1990) VR 310

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

Walton v. The Queen [1989] HCA 9; (1988) 166 CLR 283

Ratten v. The Queen (1972) AC 378

Butera v. Director of Public Prosecutions for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180

Rowley (1986) 23 A Crim R 371

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

HEARING

CANBERRA
18:5:1992

DECISION

Now that the jury have retired to consider their verdict, I publish the reasons for some decisions given after the empanelling of the jury.

2. A voir dire hearing was held prior to the calling of evidence in the trial to enable a ruling to be made on whether certain evidence was admissible to prove that the accused was a party to the conspiracy with which he was charged. For the purpose of the ruling it was assumed that the prosecution would call evidence to establish a conspiracy of the nature charged, that is a conspiracy amongst several persons to supply heroin in Canberra. Those persons included Michael Tebutt, Jane Diamond, Kerry Cox and Vaso Davidovic.

3. The evidence on the voir dire established that some days prior to 29 February 1988 members of the Australian Federal Police set up a sound transmitting device in a house in Braddon occupied by Tebutt and Diamond. The house was alleged to be used as a heroin distribution centre. The police also established a listening post in premises nearby. On the night of 29 February 1988 the post was manned by Constable Bernard Joseph Morrison and another member of the Australian Federal Police. Conversations in the house could be heard by Constable Morrison and were recorded on tape. There were two methods of tape recording, one reel to reel, which operated continuously, except apparently between 2 a.m. and 8 a.m. The other method was by means of sixty minute cassettes. That method was not used unless it was considered that something was being said by those under surveillance which was of particular importance. When operated it was in addition to and contemporaneous with the operation of the reel to reel system. Once recorded, the cassettes were used for copying either in whole or in part and making up so-called composite tapes to be used in evidence. The reel to reel tapes were maintained in a pristine condition and provided in effect an original source or master copy.

4. On the night of 29 February 1988, until about 10.37 p.m., recording proceeded both on the reel to reel tapes and on cassettes of conversations in the house between Tebutt and Diamond and other persons. The accused was not alleged to have been present in the house during those conversations. It was alleged, and I assumed that there would be evidence to prove it, that the recordings show that those in the house expressed concern that one of the conspirators, Vaso Davidovic, had been arrested, that a substitute courier, Cox, was proving unsatisfactory and that alternative arrangements needed to be made for supplies. It was alleged that contact was made with the accused later. How this last allegation was to be proved (other than by proof of a telephone call to the accused's wife), was not apparent to me during the voir dire but for the purpose of the voir dire it was not necessary for me to know. It was alleged that after contact was made, a person arrived at the house and that that person was the accused.

5. Constable Morrison gave evidence that a conversation commencing 10.37 p.m. was recorded on the reel to reel tapes and contemporaneously on cassette tape No. 196. It was the admissibility of that part of the contents of the tapes that was in question. I assumed that evidence of the proper recording, custody and production of the particular tapes would be proved. A dispute arose over those matters during the voir dire, but counsel for the accused abandoned any arguments in that regard for the purpose of the voir dire, without prejudice to raising them in the trial. That was a proper concession. Any question of fabrication of the tapes or lack of proper control were matters for the trial.

6. The relevant tapes were played in Court. I heard them. On the first day of the voir dire I heard the whole of cassette 196. On the second day of the voir dire I heard the contents of part of the reel to reel tape which is also part of what is on cassette 195, the whole of what is on cassette 196 and part of what is on cassette 197. Counsel for the accused objected to my using a transcript in order to understand what was recorded on these tapes. Because I thought it was of importance to assess the intelligibility of what was being played, I declined initially to use the transcript. Later I had a transcript of part of cassette 196 before me. When I first heard cassette 196, I found it almost unintelligible. When I listened to the reel to reel equivalent of cassette 196 a day or so later, I believed that I understood a few parts of it. After reserving but before announcing my decision and with the concurrence of counsel, I listened to cassette 196 again. I approached the matter of understanding the contents of the tapes in this way in order to appreciate the likely capacity of the jury to understand the contents of the tapes should the tapes be played to them.

7. Constable Michael Andrew Bolan and Ms Renee Rachel Louisa Coyle were called to prove the identity of the voice or voices heard on the playing of part only of cassette 196. Counsel agreed on a transcript of what was played to them. In the case of Constable Bolan, it is set out in the whole of exhibit X7. In the case of Ms Coyle, it is set out in part of page 1 of exhibit X7 and I have ruled off and initialled the appropriate section on that page. The part of the cassette played to those witnesses commences with the sound of the telephone ringing followed by a male voice saying: "Kerry. Its Mick here. Listen, er, everyone's been looking for hours, mate. Mick, Mick Miladinovich is here at my place."

8. It is sufficient to say that the rest of the content of the cassette which was played to the witnesses when they gave evidence sounded to me like the conversation set out in the transcript. Assuming that the voices were correctly identified, cassette 196 records Tebutt and the accused (both of whom are known as Mick) speaking over the telephone to Cox and subsequently speaking to each other and to Diamond in each other's presence. In that subsequent conversation they arranged for the accused to go to Cox and then to meet at Woden. It was alleged that there was material in other tapes and in other evidence which would lead to an inference that the meeting took place at Woden as arranged and that someone in a car registered in the name of the accused delivered heroin to Tebutt and Diamond there.

9. Ms Coyle gave evidence that she had known the accused for several years and more closely since he had been associated with a man known as David Vaso (presumably Vaso Davidovic). She said she was with Vaso when he was arrested in February 1988 for possession of heroin and that she had a conversation with the accused the following day about that matter. She said that she was asked by police in October 1988 to listen to a cassette tape to see if she could identify a man's voice. She said that she listened as requested and identified the voices of Michael Tebutt and the accused. According to the evidence of Constable Morrison, it was cassette 196 which was played to Ms Coyle and Constable Morrison also said that Ms Coyle identified the voices of Michael Tebutt and of the accused. Ms Coyle said further in her evidence that she was in this Court on the morning of 27 April 1992 when the whole of cassette 196 was played to the Court by Constable Morrison. Whilst she was in the witness box part of cassette 196 was played, that part to which I have already referred. Immediately after that part of cassette 196 was played to her, she said that in relation to the voices heard, "I believe it to be Michael Tebutt and Mick Miladinovic, but I don't know who the female voice is".

10. In cross-examination Ms Coyle said that she might not have heard previously the tape that was played in Court, or was not sure. She agreed that when she gave evidence at the committal proceedings, she said nothing about identifying the voice of Michael Tebutt. During further cross-examination she had played to her a tape of what was later proved by the evidence of the accused's solicitor to be a recording of no less than ten different persons in sequence reading a transcript of what had been played to Ms Coyle whilst she was in the witness box, but omitting that part where a male voice is heard to say, "Mick Miladinovic is at my place". During further and somewhat confusing cross-examination, she said that she did not know whether any of the voices on the tape played during cross-examination was that of the accused. In re-examination she said, "God knows how much I've listened to it, I don't know what's up." She said further that nothing had been said to her to influence her into thinking that the voice she heard on the tape previously played to her by the police was a voice she might know.

11. Constable Bolan said in evidence that he had met the accused in 1983 and worked with him in 1987 in a bar where the accused was manager. Constable Bolan further said that the accused was a friend of his. He further said that he was working in the Australian Federal Police and was in the process of transcribing the tapes in 1988 when he recognized the voice of the accused on cassette 196. He relayed this information to Sergeant McDonald, who instructed him that he might be required to give evidence in court later. Part of cassette 196 was played to Constable Bolan whilst he was in the witness box (that part set out in transcript, exhibit X7) and he said, "I can identify Mick Miladinovic's voice and Michael Tebutt's voice". The tape prepared on behalf of the accused with the ten different voices on it was then played to him in cross-examination. He said that one or more of the voices sounded like the accused's voice and others did not. He agreed that he could not exclude the possibility that "the voice" was not that of the accused. He said that he was not told in advance when transcribing the tapes that he might hear the voice of the accused on cassette 196. He said that when he recognized the voice of the accused at that stage Constable Morrison was present.

12. Counsel for the accused submitted that the evidence of identification of the voice of the accused by Ms Coyle and Constable Bolan was inadmissible. I rejected the submission. In fact I did not understand it. Each of the witnesses gave evidence of familiarity with the voice of the accused and each gave evidence of recognizing the voice of the accused on first hearing a cassette in 1988 and upon hearing the same or similar cassette in Court during Constable Morrison's evidence and when part of the cassette was played whilst the witness was giving evidence-in-chief.

13. The further submission, which had more substance, was that the evidence of voice identification should be excluded from the consideration of the jury despite its admissibility because its prejudicial effect outweighed its probative value. It was argued that the evidence-in-chief of Ms Coyle was rendered unreliable by the answers given by her in cross-examination. I saw her give evidence, and although such matters would in the trial be a matter for comment to and evaluation by the jury, I was entirely unconvinced that cross-examination had any effect other than to get Ms Coyle confused in a way that did not rob her evidence-in-chief of credibility. One or two of her answers, read out of context, might leave an impression that she was retracting her evidence-in-chief, but there is no question that Ms Coyle remained a witness whose evidence might be accepted by the jury as being credible.

14. The argument that caused me greater difficulty relied on the fact that at the beginning of the part of the cassette played to the witness in court the voice said to belong to Michael Tebutt is heard to say, "Mick Miladinovic is here at my place". The submission is that that statement immediately suggests to the listener that the male voice then heard to follow is that of the accused and that the listener is therefore deprived of the faculty of assessing the identity of that voice with any objectivity or reliability. Counsel likened the situation to a visual identification in court or what he called a "one man line-up".

15. Voice identification has been the subject of several relatively recent decisions of Australian trial courts and courts of criminal appeal and in particular of this Court by Gallop J. in R v. Reynolds and Others (unreported, 2 October 1991) and by myself in R v. Omar Omar (unreported, 28 March 1991). There is seen to be a difference in approach between the New South Wales and Victorian courts. To the extent that there is a difference, the courts in this Territory prefer the Victorian approach. That is to say, evidence of voice identification will be admitted if it is relevant, but the Court will be astute to exclude such evidence if its admission would deprive the accused of a fair trial. A comparison might be made with visual identification. Usually the issue of visual identification arises in a situation where a witness with no previous familiarity with the accused identifies a person who is otherwise established to be the accused as the person seen by the witness in circumstances tending to link that person with the crime. Sometimes voice identification is directed to a similar situation. For instance, the witness might have heard the voice of a person at the crime scene and later identified the voice of the accused (perhaps heard in court or from the playing of a recording of an interview) as the voice heard at the crime scene. This was the situation in R v. Smith (1986) 7 NSW LR 444 and R v. Brownlowe (1986) 7 NSW LR 461 where the witnesses had no previous familiarity with the voice. But it was not the situation in the present case where both witnesses claimed familiarity with the voice of the accused. That claim was not disputed in cross-examination or by the accused giving evidence on the voir dire. The dangers associated with the identification by each of those witnesses of the voice played flow from the capacity of the witness to compare what the witness observed and recalled of the characteristics of the accused's voice with what the witness heard played on the tape. That capacity cannot be tested by rigid or definitive tests such as distinctive features or previous familiarity. In any event, the two witnesses in the present case gave evidence of familiarity and of what they considered to be the distinctive features of the accused's voice, at least when contrasted with the voice of Michael Tebutt. The weight of their evidence is very much a jury question.

16. It is true that there are dangers in voice identification. They are similar but not identical to the dangers involved in visual identification. The usual test to justify exclusion will be whether the prejudicial effect of the evidence is likely to outweigh its probative value. In the present case I considered that it is open to the jury to place considerable probative value on the evidence of Ms Coyle and Constable Bolan, despite the reference to the name of the accused by the other male voice heard on the tape. They may place such weight on that evidence despite a warning as to the dangers. This matter is associated with the admissibility of what the other voice is heard to say and I will return to that in a moment. First, however, I deal with the argument that fairness to the accused demanded that the evidence of voice identification be contained in something akin to a "voice line-up" whereby the police or prosecuting authority would prepare a tape of several voices, including that of the accused, and then play the tape to the witness with a neutrally phrased request to identify any of the voices that the witness considered he or she was able to identify. The need for such a procedure was said to follow from the judgment of Ormiston J. sitting as the trial judge in R v. Harris and Others (No. 3) (1990) VR 310. My initial response to that suggestion is that, with respect to his Honour, counsel was unable to point to anywhere in the world where such a procedure of "voice line-up" had ever been adopted, and further, there is no other judicial support for the proposal. Indeed, as Gallop J. observed in R v. Reynolds, the need for such a procedure as an audio tape equivalent of an identification parade was roundly rejected by the Full Court of the Supreme Court of Victoria in R v. Jones and Harris (1989) 41 A Crim R 1. Lastly, in R v. Harris it was assumed (at 314) "that the rules as to visual identification should be applied to aural identification with appropriate modifications". I am not prepared to make that assumption.

17. I would add here that the proposition that neither Ms Coyle nor Constable Bolan made a genuine identification of the voice because of the suggestiveness of what was said by Tebutt was never put to either witness in cross-examination. In my view, the failure to give either witness the opportunity to respond to that criticism substantially weakened the attack on their credibility and the contention that it would be dangerous to admit their evidence.

18. I considered that the statement by the voice identified as that of Tebutt that "Mick Miladinovic is here at my place", is admissible against the accused on the issue of whether the other voice was that of the accused. It is true that the statement is hearsay, and to justify its exception reliance was placed on the decision of the High Court in Walton v. The Queen [1989] HCA 9; (1988) 166 CLR 283. However, a close analysis of the judgments in that decision leads to the conclusion that the statement is admissible. For instance, at 293, Mason C.J. said:
"The hearsay rule should not be applied inflexibly. When the

dangers which the rule seeks to prevent are not present or are
negligible in the circumstances of a given case there is no basis
for a strict application of the rule. Equally, where in the view of
the trial judge those dangers are outweighed by other aspects of the
case lending reliability and probative value to the impugned
evidence, the judge should not then exclude the evidence by a rigid
and technical application of the rule against hearsay...."

19. Later on the same page, his Honour distinguished between implied assertions and express assertions, stating that implied assertions were more likely to be admissible, despite their hearsay nature, than express assertions. His Honour concluded as follows:

"In very rare cases it may be that such an approach will be
appropriate also for an express assertion, for the same reasons, but
it will be uncommon for a situation to arise in which an express
assertion is made which does not come within a recognized exception
to the hearsay rule and yet which despite being tendered as proof of
what it asserts, would not offend the basis of that rule. In
particular, an express assertion will often lend itself more readily
to a suspicion of concoction."

20. The Chief Justice said that he entirely agreed with the statement of principle made by Lord Wilberforce in Ratten v. The Queen (1972) AC 378 at 391 in the following terms:

"These authorities show that there is ample support for the
principle that hearsay evidence may be admitted if the statement
providing it is made in such conditions (always being those of
approximate but not exact contemporaneity) of involvement or
pressure as to exclude the possibility of
concoction or distortion to the advantage of the maker or the
disadvantage of the accused."

21. In the joint judgment of Wilson, Dawson and Toohey JJ., it was recognized at 306 that:

"Whilst it is possible that in some circumstances a greeting may
constitute circumstantial evidence from which the identity of the
person greeted can be inferred, that is not necessarily the case."

22. Deane J. discussed the question of identifying a person at one end of a telephone line by something said by the person at the other end of the telephone line and concluded (at 308):

"The evidence of such a witness of what was said by one party to
the conversation will ordinarily not be admissible as evidence
against another person unless there is evidence establishing or
warranting the inference that that other person was the other party
to the conversation. If the hearsay rule were to be inflexibly
applied, it would preclude the identity of the other party to the
conversation being established by contemporaneous statements of the
first party even though made in the course of the actual
conversation. The hearsay rule should not, however, be inflexibly
applied but should be qualified where the circumstances are such
that its inflexible application would confound justice or common
sense or produce the consequence that the law was unattuned to the
circumstances of the society which it exists to serve."

23. In this case it was not a greeting or the identification of the person at the other end of the line by the caller that was in question. But, in my view, the same approach should be made both to the reference by the caller to the name of the person to whom he speaks and the name of the person whom he states to be with him.

24. I cannot think of any reason why the man identified as Tebutt would have wanted to concoct or distort the identity of the man he was with when he made the telephone call to the person identified as Cox. He wanted to arrange a meeting between that man and Cox. That man went on to participate in the telephone call to Cox. There was then an arrangement made to meet at Woden. A car registered in the name of the man was seen at the time and place arranged. To use the terminology of Deane J., it confounds common sense to say that the reference by Tebutt in the course of the telephone call to the name of the man is no proof of the identity of that man. Add to the evidentiary material of the statement by Tebutt the admissible evidence of the identification of the man's voice by Ms Coyle and Constable Bolan as that of the accused and the sighting of the accused's vehicle at the agreed meeting place, and any danger associated with the reference to the name of the accused by Tebutt becomes insufficient to justify a strict application of the hearsay rule.

25. Finally, although it was not strictly a matter for determination on the voir dire, there was the question of the admissibility of a transcript of the contents of cassette 196. When I first heard that cassette, I formed the opinion that it would be so unintelligible to the jury that a transcript would be in total substitution of an understanding of its contents and therefore it would be impermissible to allow the jury to have such a transcript. I heard the cassette replayed and began to understand more of it. I also heard the reel to reel tape equivalent. In particular, I later had the benefit of the use of a transcript of part of the contents of the cassette, the transcript being exhibit X7. I found the transcript of considerable benefit. It enabled me to understand parts of what I heard that I could not previously understand unaided by such transcript and I inferred that a jury could well derive similar benefit. There was evidence from Constable Morrison that the transcript had been prepared after playing the cassettes repeatedly. In my view, he had, within the terms of the judgment of the High Court in Butera v. Director of Public Prosecutions for the State of Victoria [1987] HCA 58; (1987) 164 CLR 180, qualified himself as an expert to give evidence to assist the jury in their perception and understanding of the contents of the tapes when played. The jury are to be warned that it is their understanding of the contents derived from the playing of the tapes that is important and that the transcript is not to replace that understanding. The transcript is not to be admitted into evidence as an exhibit. It is not to go into the jury room. I decided that the members of the jury might each have a copy of the transcript when the relevant tape or tapes were played during the trial, and that course was followed.

26. I would add in conclusion that the rulings sought and now made did not necessarily require a voir dire hearing. Had the ruling been against the admissibility of the contents of the tapes, it might have been that the trial would have been shortened to the extent that the Director of Public Prosecutions might have decided to offer no evidence. However, in the present case the voir dire had the effect of substantially lengthening the hearing not only by the time taken for the voir dire itself, but by giving defence counsel further material to examine prosecution witnesses as to what they had said in previous statements in evidence at committal and in addition on the voir dire. As Beach J. observed in Rowley (1986) 23 A Crim R 371 at 380:

"voir dires are time consuming and frequently result in the
incurring of considerable public expenditure. In my opinion, there
is no obligation upon a trial judge to conduct one unless he is
satisfied a real question of voluntariness, unfairness or
impropriety has arisen, for as Gibbs C.J. and Wilson J. pointed out
in MacPherson's case - it does not advance the cause of justice to
allow a voir dire which is used merely as a fishing expedition or a
means of testing in advance the evidence of Crown witnesses."

27. These are the reasons I had in mind when deciding at the end of the voir dire to allow the challenged evidence to go to the jury. They are different from the ex tempore reasons I gave at the end of the Crown case when an application was made for a ruling that there was, on the issue of the participation by the accused in the conspiracy alleged, no "reasonable evidence" within the meaning of the judgment of the High Court in Ahern v. The Queen [1988] HCA 39; (1988) 165 CLR 87. Having decided then that the evidence of voice identification by Ms Coyle and Constable Bolan and the contents of cassette 196 was reasonable evidence of the participation of the accused, the statements of the other participants, particularly Michael Tebutt, Jane Diamond, John Radecic become admissible against the accused on the issue of whether he was a party to the conspiracy and on the issue of the nature and extent of his participation.