Identification evidence — voice identification

[3-100] Admissibility of voice identification

The Dictionary to the Evidence Act 1995 (“the Act”) defines “identification evidence” to include aural identification evidence of an accused. Such evidence is admissible if it is relevant subject to exclusion under ss 135 or 137 of the Act.

The evidence is not necessarily a question for expert evidence but s 79 of the Act will encompass evidence of voice identification from an “ad hoc” expert, such as a police officer or interpreter who has listened to the voice of the accused on tapes over a lengthy period of time.

Generally, see R v Leung (1999) 47 NSWLR 405 at [44] and Irani v R (2008) 188 A Crim R 125.

See, Uniform Evidence Law at [1.3.4280]ff.

[3-110] Warnings and directions

Sections 116 and 165 of the Act apply: the former requires the jury be informed of the special need for caution in relation to identification evidence and the reasons for that caution: see R v Clarke (1997) 97 A Crim R 414. Section 116 is only engaged where identification is in issue in the trial : Dhanhoa v The Queen (2003) 217 CLR 1 at [22] and [53].

[3-120] Suggested direction — voice identification

The particular facts before the jury will determine the nature of the warnings that are given and the defects in the evidence that should be highlighted for the jury’s consideration. The direction may be adapted for evidence of identification from CCTV.

There is an important direction I must now give you concerning the evidence of [name of witness] in which [he/she] identified the voice of [the accused] as that of the person who [insert circumstances — for example, discussed the importation on the telephone]. In giving you these directions you should not think that I am giving you any indication of what I think about the reliability of the evidence. As I have told you that is not my task. I am required to make sure that you consider everything that is relevant to the assessment of the reliability of the evidence and whether you should act upon it. That assessment is your function, not mine. Judges have an experience with the law that members of the community generally do not have. Judges know that voice identification evidence may be unreliable and has been shown to be so in the past.

Evidence that [the accused’s voice] has been identified by a witness must be approached by you with special caution before you accept it as reliable. These directions relate only to the reliability of the identification evidence given, not to the honesty of the witness[es]. A witness may give evidence of identification honestly and sincerely believe that [his/her] evidence is correct. The evidence will usually be quite impressive and even persuasive. Even if you thought [name of witness] was entirely honest in the evidence that [he/she] gave, you must still approach the task of assessing the reliability of [his/her] evidence with special caution. The identification of a voice is notoriously liable to be mistaken.

So, special caution is necessary before accepting voice identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of committing a crime. The experience of the criminal courts over the years, both in Australia and overseas, has demonstrated that identification evidence, of whatever kind, may turn out to be mistaken. There have been some notorious cases in which witnesses have given evidence of identification which has later been demonstrated to be wrong after innocent people have been convicted.

You must carefully consider the circumstances in which [name of witness] heard the voice of the person the Crown alleges committed the crime and how [he/she] came to identify that voice as [the accused]. The circumstances in which the witness heard the voice and identified it can affect the reliability of that evidence.

There are a number of matters that have been specifically raised in this case that require your consideration in determining whether the evidence identifying the accused can be safely acted upon.

[The trial judge should identify for the jury the particular matters in the case and make brief reference to the arguments in relation to each of them. The following matters are given by way of example and would need to be adapted to the circumstances of the individual case. In most cases the jury would be assisted by the judge providing the answer to the question posed.]

  • Was the person identified a stranger to [name of witness]? It is obviously harder to identify the voice of a stranger than it is to identify the voice of a person who is well known to the listener. If the person was a stranger, how did [he/she] come to be familiar with the voice identified? [recite evidence] I warn you that mistakes can easily be made even even in identifying the voice of a friend or member of the family. Identifying the voice of a stranger is even more difficult.

  • What opportunity did [name of witness] have to hear the voice of the person? [Name of witness] said the [period/number of times] in which [he/she] heard the voice was … [recite evidence].

  • How attentive was the person in hearing the voice. Was [he/she] able to give it full and undivided attention or was the person distracted at the time? [recite evidence]

  • How clearly could the person hear the voice and how was the sound conveyed to the witness. Was there any chance that the voice was distorted in some way? [recite evidence — for example, voice on a telephone, etc]

  • Was there anything about the voice which would have impressed itself upon the witness? In other words, was there anything distinctive about the voice which was similar or different to that of the accused? [recite evidence — for example a lisp, accent, peculiar pronunciation, etc]. It may be difficult to describe a voice unless it has some peculiar characteristic and without the witness being able to provide some description, that makes your task of assessing the reliability of the evidence more difficult.

  • Was there any special reason for remembering the voice that was heard?

  • Does [name of witness] come from the same racial background as the person identified? That is also something you can bear in mind. It may be more difficult for a member of one race to identify the voice of an individual of another racial group. [recite evidence]

  • How long did the witness have to keep the characteristics of the voice in [his/her] mind before identifying that voice as that of the accused?

[If appropriate:

You are yourself entitled to compare the voice of the accused as you have heard it with the voice on the tape in order to see whether that affects your assessment of the evidence of [the witness]. But bear in mind the difference that there may be between comparing a voice heard in court with that recorded on a tape. You should consider the opportunity you have to compare the two voices with that of the witness. You should take into account the clarity of the tapes played to the witness and that you have heard and how the recording may affect the ability to compare the voices.]

You must give consideration to each of those matters. Any one of those circumstances may possibly lead to error.

[Reference may then be made, if thought appropriate, to any other matters raised by counsel upon this issue that have not already been the subject of the direction required by the statute.]