R v Saurav Mahay

[2010] NSWDC 342

CITATION:	R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 342
JUDGMENT DATE:	24 August 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I reject the questions.
CATCHWORDS:	CRIME - jury trial - specially aggravated detain for ransom - application by the Crown to call evidence from a witness about whether he recognises a voice on a telephone intercept - relevance - whether capacity of witness to recognise voice is different from capacity of jury - witness and accused speak Punjabi
CASES CITED:	R v Korgbara (2007 71 NSWLR 187 Smith v The Queen (2001) 206 CLR 650
PARTIES:	Regina Saurav Mahay Michael Dean Khan Dushand Rana
FILE NUMBER(S):	2008/82064; 2008/211508; 2008/254927
COUNSEL:	Mr S De Silva for the Director of Public Prosecutions Ms K Stares for Mr Khan Ms ST Hall for Mr Rana
SOLICITORS:	Mr WJ Sandilands for Mr Mahay

JUDGMENT

1. The Crown Prosecutor wishes to ask a witness called Vikram Singh to give evidence about whether he recognises one of the voices on a telephone intercept. The Crown alleges that one of the voices will be that of an accused in this case, Mr Rana.

2. Ms Hall who appears for Mr Rana objects to that evidence being led. She has a number of bases for her objection but the first is relevance. She relies upon the majority judgment of the High Court in Smith v The Queen (2001) 206 CLR 650. Her point is that the witness Vikram Singh is in a position where his capacity to recognise the voice is so little in difference from the jury's capacity that his evidence is not relevant to the fact in issue. The fact in issue Ms Hall says is whether, relevantly, her client detained a person said to be the victim of an offence in a kidnapping. Relevant to a fact in issue is whether her client was a participant in this phone call.

3. Ms Hall relies upon the following proposition at [11] of the majority judgment -

" The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion."

4. Ms Hall’s argument is that Mr Vikram Singh's evidence about voice identification falls into the same category as that referred to by the High Court in the passage I have just quoted.

5. The only evidence of Mr Vikram Singh's familiarity with the voice in question appears at 408 of the transcript, which I will not set out, and at 306. Both, in my opinion, provide a very slender basis for him to be in a position to recognise the voice. He has been permitted to give evidence that he identified the voice of Mr Rana in another phone call but, in that phone call, Mr Rana effectively identified himself.

6. Mr De Silva, the Crown Prosecutor who appears in these proceedings, argues that Mr Vikram Singh has one significant advantage over the jury. Mr Vikram Singh speaks Punjabi, which is the language used in this telephone call.

7. Juries have been permitted, with appropriate directions, to compare voices which may be in a foreign language, or a language other than English I should say: see at [52] of McColl JA's judgment in R v Korgbara (2007) 71 NSWLR 187 at 201. It seems to me in this case that the jury would be able to compare the voice already recognised in another telephone call as Mr Rana's with the voice in the telephone call over which the dispute arises. In addition the jury has in this case a reasonably long record of interview, although in English, with Mr Rana.

8. To my mind, although I think Mr De Silva's point has some force, it does not really put this witness in a significantly better position than the jury to pass on that question.

9. In my view the evidence of this witness about whether one of the voices is that of Mr Rana would not assist the jury in reaching a conclusion about the proposition that the voice was Mr Rana's in that it would not rationally affect, directly or indirectly, the assessment of that probability (by the probability that the voice is Mr Rana's in these proceedings).

10. I, therefore, regard the evidence as irrelevant and will reject any question which seeks to elicit that evidence.

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