N852

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

DANIEL

Lae
Doherty AJ

6 December 1989
21 December 1989

CRIMINAL LAW - Evidence - Identification - Voice identification - Methods of - When admissible.

EVIDENCE - Proof of identity - Identification by voice - Methods of - When admissible.

CRIMINAL LAW - Evidence - Similar fact evidence - Exclusion of - Must be evidence of accused - When otherwise admissible - Evidence of aborted robbery attempt admissible on robbery charge.

EVIDENCE - Admissibility - Leading questions - What are.

Held

(1) Evidence that the voice of a person involved in a crime is the voice of an accused is admissible to prove identification of the accused where:

(a) the voice is known by the witness and recognised by the witness; and

(b) the voice is not previously known to the witness but has such distinctive features that it leaves a clear mental impression in the mind of the witness enabling him to draw the conclusion on hearing it later that it was the same voice.

R v E J Smith [1984] 1 NSWLR 462; (1984) 12 A Crim R 439; and R v Brownlowe (1987) 7 NSWLR 461; (1987) 24 A Crim R 377, adopted and applied.

(2) Evidence of facts similar to a fact in issue is not in general admissible to prove either the occurrence of the fact in issue or the identity of its author; such evidence must be evidence of the acts of the accused; evidence of acts of a person other than the accused does not fall within the exclusion.

Makin v Attorney-General for New South Wales [1894] AC 57, followed.

(3) Accordingly, on a charge of robbery, evidence of a witness as to a previous aborted robbery attempt was admissible as part of the continuing plan and intent.

(4)  A leading question is a question the form of which suggests the answer desired of the witness; the question "Do you recall three weeks before 12 December?" is not a leading question.

Cases Cited

John Beng v The State [1977] PNGLR 115.
Makin v Attorney-General for New South Wales [1894] AC 57.
Perry v The Queen (1982) 150 CLR 580; 57 ALJR 110.
R v Barrington [1981] 1 All ER 1132; [1981] 1 WLR 419.
R v Brownlowe (1987) 7 NSWLR 461; (1987) 24 A Crim R 377.
R v Jamieson (National Court judgment N698A, 24 August 1972, unreported).
R v E J Smith [1984] 1 NSWLR 462; (1984) 12 A Crim R 439.
R v Tetlow (1986) 27 A Crim R 198.

Ruling on Evidence

In the course of a trial on a charge of robbery, the following rulings on admission of evidence were made by the trial judge.

Counsel

M Peter, for the State.
G Langtry, for the defence.
Cur adv vult

21 December 1989

DOHERTY AJ: The defence sought to object to part of the evidence of Jack Micky and to all of Tobias Narun’s evidence, first by seeking to prevent him being called at all. When I ruled there was no evidence to show Narun was a person to whom s 13 of the Evidence Act (Ch No 48) applied, the witness was duly sworn. The evidence objected to was:

(a) in relation to Jack Micky — part of the evidence on an alleged telephone conversation between the witness and the defendant; and

(b) in relation to Tobias Narun the question: "Do you recall three weeks ago before 12 December 1988" on the basis that it was a leading question and should not be allowed; and

(c) that the entire evidence of Tobias Narun was inadmissible as being similar fact evidence.

I ruled against each submission and said I would give a written decision. I do so now. I will take each objection in turn.

(A) TELEPHONE CONVERSATION EVIDENCE

Mr Langtry, counsel for the defence, quoted the following passage in R v Brownlowe (1987) 7 NSWLR 461; 24 A Crim R 377:

"Witness must have recognised voice at some subsequent occasion because it was very distinctive when he first heard it at the time of the crime so distinctive in fact that the injury could accept that an indelible mental impression had been left in the witness’ mind so to know the two were the same."

He argued that there was no evidence that the voice which spoke to the witness and identified itself as the defendant on the telephone was of such a distinct character as to be admissible if the criteria he cited was adopted.

The passage cited by counsel is misquoted and misleads the court; it is taken from the headnote of R v Brownlowe which, in fact, reads as follows:

"Except in the case where the witness concerned was familiar with the voice of the alleged offender, because of past acquaintance with it, the witness must have recognised that voice at some subsequent occasion because it was very distinctive when he first heard it at the time of the crime, so distinctive in fact that the jury could accept that an indelible mental impression had been left in the witness’ mind, thus permitting the conclusion to be drawn that the two voices were the same."

The preceding exception that the witness concerned knows the voice is a very important one. The case of Brownlowe follows R v E J Smith [1984] 1 NSWLR 462; (1984) 12 A Crim R 439, which deals in 26 pages of detail with admission of evidence of voice identification.

The Court’s ruling is set succinctly in the headnote, par (3) at 462:

"Evidence that the voice of a person present at the time of a crime is the voice of the accused can only amount to positive identification where the witness is familiar with the voice before hearing it at the crime, or where the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the very distinctive features of the voice at the crime."

In his judgment, the learned Chief Justice of Criminal Division of the New South Wales Supreme Court (O’Brien J) reviews the cases relating to voice identification. He draws a parallel between visual identification and voice identification. Visual identification was considered at length in the Papua New Guinea Supreme Court in John Beng v The State [1977] PNGLR 115 and the learned Deputy Chief Justice (Prentice Dep CJ) said at 123:

"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows ... mistakes in recognition of close relatives and friends are sometimes made."

I see no reason why this should not be equally valid in voice identification.

In R v E J Smith, American authorities are quoted, at 475-476; 451-452:

"Since an early period, witnesses’ testimony of identification of a person by having heard his voice has been regarded as legitimate and competent to establish identity in both criminal and civil cases. Such evidence is not the statement of mere matter of opinion, but is the statement of a conclusion reached directly and primarily from an operation of the sense of hearing.

It is direct and positive proof. The infrequency with which the witness heard the voice before the time in question is not a reason for the exclusion of his testimony, although it may affect the probative value thereof.

...
Voice identification testimony has been received in a good many criminal cases as going to identify the defendant as the person who committed the crime for which he is on trial. Particularly where the crime was committed in darkness, or out of sight of witnesses, or by a person masked or otherwise disguised, or where the witness is blind, testimony based upon a witness’s recognition of the voice of the defendant as being that of the offender may be important in making out a case."

This rule extends to mechanical and electronic transmission (see at 476; 453) and I would consider that a conversation relayed by telephone is within the category of electronic transmission.

Hence in voice identification, there can be two groups: first, those whose voice is known by the witness and recognised by the witness; and secondly, that voice not previously known to the witness but which is of such distinctive features that it leaves a clear mental impression in the mind of the witness enabling the conclusion to be drawn that they are the same.

The evidence of Libby Tokau is that Jack Micky visited the house she shared with the defendant and he was known to the defendant. Jack Micky gave evidence of knowing and talking to the defendant. Neither was challenged in this particular and I find Micky could identify the voice as that of the defendant and I admit that evidence.

(B) LEADING QUESTIONS

Defence counsel returned several times to the objection that the question, "Do You recall three weeks before 12 December 1988?" was leading. A leading question has been defined by Halsbury’s Laws of England (4th ed), vol 17, par 272 at 189, as follows:

"Leading questions, that is to say questions which by their form suggest the answer which it is desired the witness shall give, are not generally permitted in examination in chief."

And:

"Questions which assume the existence of facts in issue may not be asked."

I do not see what answer this question suggests. Its immediate answer is either "Yes, I recall" or "No, I do not recall"; nothing else. Possibly a witness would take it further than "Yes, I recall" by stating what happened. But there is no suggestion in that question about what happened three weeks before 12 December. The witness’ scope to answer is wide, he could say he went to a party, played football, went to work — anything! I do not find this a leading question. In fact, in his book, Advocacy at the Bar; A Beginner’s Guide, Barron cites this type of question as the classic example of a question that is not a leading question.

(C) SIMILAR FACT EVIDENCE

The evidence of Tobias Narun is objected to entirely on the basis that it was similar fact evidence. This objection was raised after evidence of Narun and after the prosecution closed their case. Defence counsel says Narun’s evidence shows meetings between Narun and the defendant in which Narun was to pass a message to others to arrange a robbery; that there was one such aborted attempt a week prior to the actual robbery after which the witness Narun lost interest in the whole affair.

Defence counsel says the events up to the aborted attempt are not direct evidence relating to the charge before me but of a different incident and therefore "similar fact evidence".

I have not been referred to any Papua New Guinea cases on this point. R v Jamieson (National Court judgment N698A, 24 August 1972 unreported) refers to the admission of similar facts, but that case, dealing in detail with misappropriation, does not assist me in determining whether the evidence before me is "similar fact" evidence. Cross on Evidence, 2nd Aust ed (1979), par 14.9 at 351, quotes the leading authority, Makin v Attorney-General for New South Wales [1894] AC 57, which Mr Langtry also relied on. It says (at 65):

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried." (My emphasis.)

Halsbury’s Laws of England (4th ed), vol 17, says, par 47 at 35:

"Facts similar to a fact in issue are not in general admissible to prove either the occurrence of the fact in issue or the identity of its author."

Archbold, 39th ed, at par 1320, also quotes Makin v Attorney-General for New South Wales, cited in Cross above.

Curzon, in his book, Law of Evidence (1978), gives four criteria:

(a) Where the prosecution is able to indicate some aspect of the past character or disposition of the accused which seems to be of probative value in relation to the offence with which he is charged.

(b) Similar fact evidence, if admissible, is admissible as part of the case for the prosecution from the beginning of the trial; it is not confined to the rebuttal of a specific defence.

(c) The required degree of probative value emerges if the proposed evidence suggests a similarity which goes to the offence itself, not only to side matters.

(d) The required degree of probative value emerges where the proffered similar fact evidence demonstrates a striking similarity to significant, and not common place, features of the offence in question.

In the cases cited by counsel:

R v Barrington [1981] 1 All ER 1132, evidence was adduced of the defendant’s earlier actions with three young girls other than the three young girls he was charged with indecently assaulting;

Perry v The Queen (1982) 150 CLR 580, evidence sought to be adduced of death by arsenic poisoning of the defendant’s brother and her first husband some 20 years earlier was partly admitted and in part rejected; and

R v Tetlow (1986) 27 A Crim R 198, evidence of the defendant previously administering heroin was not allowed.

In each of the cases I have referred to, facts were of other incidents involving the defendant directly and incidents other than those with which the defendant was indicted.

Do the events leading up to 12 December 1988 have a "cut-off point" on 7 December 1988 in Tobias Narun’s case and events prior to 7 December 1988 become "similar facts" because, as defence counsel says, Narun then lost interest.

Similar fact evidence is evidence of actions of the accused in relation to acts other than the crime with which he is indicted. Narun’s loss of interest cannot transfer Narun’s intent to the accused and create a "cut-off" point in the accused’s actions and intentions also. I consider Narun’s evidence is of a continuing plan and intent. It is not of an action of the defendant that ended on 7 December 1988, ceased and possibly recommenced thereafter. It is not an "other action", it is the same continuing action. It is not similar fact evidence.

Ruled accordingly

____________

Lawyer for the State: Public Prosecutor.
Lawyers for the accused: Mionzing & Associates.