SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 17 May 2006, the appellants, Stefan Marinel Evan, Nicolae Bivolaru and Dorin Robu were convicted upon the verdict of a jury of trafficking in the dangerous drug heroin.  On 18 May 2006, Evan was sentenced to 12 years imprisonment: his offence was automatically declared to be a serious violent offence ("SVO").  Bivolaru was sentenced to 12 and a half years imprisonment: his offence was automatically declared to be an SVO.  A period of 40 days was declared to be time served.  Robu was sentenced to eight years imprisonment: his offence was declared to be an SVO.  A period of 35 days was declared to be time served.

[2] Each of the appellants seeks to appeal against his conviction.  Each of Evan and Robu also seeks to appeal against his sentence.  Because I have come to the conclusion that the appeal against conviction must be allowed in each case, it is unnecessary to deal with the question of sentence. 

[3]  The appellants agitated a number of grounds of appeal, but the submissions made on appeal were principally concerned with the issue of identification, and, in particular, with whether the directions given by the learned trial judge on that issue were adequate, and to the refusal by the learned trial judge to allow the appellants' counsel access to materials relating to the circumstances in which two of the prosecution witnesses had been sentenced for offences related to those with which the appellants were charged.  Before proceeding to discuss the issues which arise on the appeal, I will summarise the case at trial. 

The case at trial

[4] The trial began on 26 April 2006.  The Crown alleged that the trafficking in question took place in and around Cairns between 30 June 1999 and 21 February 2001 when the appellants travelled to Cairns and sold heroin to local residents. 

[5] Each of the appellants had come to Australia from Romania.  They told police that they knew each other.  Evan was a resident of Blacktown in New South Wales and Tugun in Queensland.  He was found at his Tugun residence in a police raid on 20 February 2001.  The police search of Evan's premises at Tugun in February 2001 revealed a number of photographs of Robu and Evan together as well as photographs of Robu and Bivolaru together.  Bivolaru lived in Brisbane at Abbotsford Road.  Robu gave his home address to police as being Evan's address at Tugun.  He was found at Bivolaru's Abbotsford Road residence during a police raid on 20 February 2001.

[6] Robu told police that he went by the name "Donald".  Bivolaru was referred to by witnesses as "Uncle" or "Nick" or "Victor".  Evan was referred to as "Stef" or "Fane".

[7] The Crown case was organised largely, but not entirely, around four evidentiary themes.  First, there were telephone intercepts by the Australian Federal Police of calls allegedly involving Bivolaru in the course of which he revealed himself to be a dealer in drugs.  Secondly, a telephone "matrix" was constructed which purported to demonstrate the numbers of mobile telephones used by the appellants and the false names under which the phones were owned.  Thirdly, there was evidence of financial transactions relating to Evan and Bivolaru.  And, fourthly, there was the evidence of six witnesses, each of whom gave evidence that one or more of the appellants had supplied heroin, either to the witness or to another person in the presence of the witness.

The witnesses

[8] One of these witnesses was Wayne Nikia Ferguson.  He was a user of heroin who was introduced to Evan by Jacqueline McReaddie at her house at 44 Marshall Street, Machans Beach.  He bought heroin from Evan in the period from August 1999 until November 2000 in Cairns, Mackay and Rockhampton.  He also met with Evan in Brisbane, the Gold Coast and Sydney and was supplied with drugs by him at those locations.  He met with Bivolaru and Robu on about five occasions when he bought drugs from them.  He knew them as "Victor" and "Don" respectively.  On many occasions, he saw all three of the appellants together in Cairns.  Ferguson estimated that he paid Evan between $75,000 and $100,000 for supplies of heroin.  Ferguson and McReaddie onsold heroin supplied by the appellants.  Ferguson said he deposited money into Evan's account with the Commonwealth Bank to pay for the drugs supplied by Evan. 

[9] There was circumstantial support for Ferguson's evidence inculpating Evan.  Ferguson's fingerprints were found on seven bank deposit slips into the account of Evan with the Commonwealth Bank.

[10]  Ferguson was charged with, and convicted of, trafficking in heroin, and was sentenced before the trial of the appellants commenced.  Pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) ("the Act"), he was sentenced to five years imprisonment wholly suspended on the basis that he undertook to give evidence against the appellants.  In cross-examination, he said that he had been sentenced to five years imprisonment wholly suspended and that he understood that, if he did not cooperate in terms of his undertaking to give evidence, he could be resentenced to all of that five year term.

[11]  The evidence of McReaddie was that she first bought heroin from Bivolaru in August 1999.  Bivolaru arranged a meeting in August or September 1999 when he introduced her to "Stef" and "Don".  Bivolaru instructed her that, in future, she would obtain supplies of heroin from Evan and Robu.  Thereafter, McReaddie obtained supplies of heroin from Evan.  Robu was present on, it would seem, two occasions, of which McReaddie gave evidence.  According to McReaddie, Robu acted as Evan's driver.  McReaddie made deposits into a bank account in the name of "Dragosetti", the details for which were in an address book which Evan gave her (Dragosetti was the name of an associate of Evan).  McReaddie's fingerprints were also on deposit slips relating to Evan's bank account.  During a police raid of her residence, a bank deposit slip for $200 in favour of Bivolaru was found.  She also had possession of phone numbers registered in the name of Amanda Husztik, Evan's girlfriend.  McReaddie's phone number was found on pieces of paper during a police search of Bivolaru's residence on 20 February 2001.

[12]  McReaddie gave evidence after she had herself been convicted of trafficking in heroin and sentenced pursuant to s 13A of the Act after she undertook to assist with this prosecution.  She was sentenced to a short term of imprisonment.  

[13]  Lynette "Ricki" Pilgrim was a heroin addict and prostitute who worked in Cairns from June 2000 under the name "Sugar".  In that capacity, in June 2000, she met a person by the name of "Don" at the Glenlee Motel at Woree, near Cairns, ostensibly for the purposes of prostitution.  An act of prostitution did not occur, but the conversation turned to heroin.  "Don" said that he would have some for her the next time he was in town.  She asked him where he was from and "Don" mentioned Blacktown and Brisbane.  Other evidence established that Evan lived in Blacktown.  One or two weeks later, she met "Don" and "Uncle" or "Nick" in a room at the Villa Shangri-La.  "Nick" handed some heroin to "Don" who passed it to Ms Pilgrim.  She tried a small amount and was given the rest, which was worth $400 but for which she paid only $100, on the basis that she should give it to other people and "get clientele up".  She said that Nick then warned her that "if [she] fucked with him that they'd fuck [her]".  In two later meetings with "Nick" and "Don", she was given heroin by them.  In August 2000, "Don" called her to a meeting at some phone boxes near the Red Cross.  She met "Uncle" and "Don" who got into her car.  "Uncle" gave an amount of somewhat less than one gram of heroin to "Don", who in turn gave it to Pilgrim.  "Uncle" told her that they could get any amount of heroin if she "had the cash" and that it could either be sent to her or they would bring it from Brisbane. 

[14]  Pilgrim gave evidence after receiving an indemnity from prosecution.  There was circumstantial support for her evidence.  On 1 July 2000, Robu was pulled over by police driving a red Ford Laser hatchback north from Bowen towards Cairns.  It was established that this vehicle was registered in Evan's name.  Between 1 and 7 July 2000, Evan was registered in his own name as a guest at the Glenlee Motel.  The proprietor of the Glenlee Motel identified Robu as another guest. 

[15]  Bianca Jeffree was a heroin addict.  In June 2000, she was living at Lumley Street in Cairns with a fellow addict, Neil Taylor.  She said that she saw two men to whom she referred as "Don One" and "Don Two" exchange heroin for money with Taylor at her residence on "probably half a dozen or more times".  On one occasion, they left the house in a "little red hatchback".  She was given a specific mobile phone number: when she rang this number on one occasion, the receiver of the call answered:  "Hello, this is Don."

[16]  Bianca Jeffree gave evidence pursuant to an indemnity from prosecution.

[17]  Debra Irwin was a heroin addict.  She said that she met Bivolaru in mid-2000 and she came to know him as "Victor", "Nicko", "Arnie" and "RD" or "Adi".  Towards the end of 2000, he asked her if she and her partner were interested in buying and moving heroin.  He asked if they could sell for him.  He said that it could be provided on credit.  He gave them some to try, and later provided more on credit.  She said that, on two subsequent occasions, Bivolaru gave her and her partner heroin to sell for him.  Irwin on-sold heroin to "maybe six" people. 

[18]  Ms Irwin gave evidence pursuant to an indemnity from prosecution.  She acknowledged at the committal hearing that one of the reasons she implicated Bivolaru in drug trafficking was that he was not a resident of Cairns.

[19]  Elizah Bartley gave evidence that she wanted to acquire heroin, and rang a person known to her as "Mel" or "Melissa".  She met "Mel" and "Stef" at the Central Plaza Apartments, and obtained heroin from "Mel".  On subsequent visits, she met "Don" and "Victor"/"Nick".  Phone records confirm that telephone calls were made to Bartley from Central Plaza Apartments.  Phone records also confirm that telephone calls were made to Bartley from a telephone registered in the name of Melissa Kitto who was, it was suggested, Robu's girlfriend.  On one occasion, she met with Bivolaru, Robu and Melissa Kitto in Kuranda.  When they returned to Cairns, Bartley went to Bivolaru's hotel room at the back of the Smithfield Campus Shopping Centre.  There, Bivolaru gave Bartley a quarter gram bag of heroin tied up in the corner of a freezer bag.  On another occasion, she went with Robu and Melissa Kitto to Port Douglas.  During the police search of Bivolaru's home in February 2001, a piece of paper was found with Bartley's address and phone numbers on it.  In cross-examination, Bartley said that, on the three occasions on which she had something to do with Robu, she was not supplied with heroin by anyone.

[20]  Bartley gave evidence pursuant to an indemnity from prosecution. 

[21]  The Crown relied upon evidence from the operators of motels at various locations to confirm that the appellants had stayed at those locations at times when they were alleged to have supplied heroin to one or other of the people to whom I have referred. 

Financial Evidence

[22]  The Crown relied upon evidence given by a financial investigator from the Australian Crime Commission.  His evidence was that, over the period the subject of the charge, Evan had unexplained income of approximately $47,000.  On 22 occasions between 6 January 2000 and 28 July 2000, he withdrew money from a bank account in a geographical location different from that where money had been deposited on the same day.  Of the deposits, 17 out of 22 were made in Cairns.  Withdrawals were made at Woodridge, Coolangatta, Southport, Nerang, Surfers Paradise, Parramatta, Blacktown, Boondall and The Pines.

[23]  Between 19 November 1999 and 25 October 2000, Bivolaru received cash deposits of $8,310.  His only apparent source of income was social security payments. 

[24]  The Crown relied upon records of interview given by the appellants.  The appellants had denied being in Cairns at the times relevant to the allegations of trafficking.

[25]  None of the appellants gave evidence.  Their defence consisted of a challenge to the evidence which identified each of them as suppliers of heroin from the witnesses mentioned above.  It is, therefore, necessary to further summarise this evidence before discussing the arguments raised on the appeal.

Identification

[26]  By way of preliminary to the summary of the evidence bearing upon the identification of the appellants, three points may be made. 

[27]  First, the strength of the evidence of identification varied in relation to each of the appellants.  On Robu's behalf, it is said on appeal that the evidence against Evan and Bivolaru was stronger than the evidence against Robu.  But Robu did not seek a separate trial, and does not challenge his conviction on this ground. 

[28]  Secondly, the evidence of identification related to visual, and in one case aural, identification of one or more of the appellants. 

[29]  Thirdly, the jury were invited to conclude that Bivolaru's voice was recorded in telephone intercepts by making their own comparison with the recorded voice established by police evidence to be that of Bivolaru.

Visual Identification

[30]  The witnesses referred to above made visual identifications of one or more of the appellants as suppliers of heroin. 

[31]  Bianca Jeffree said during the photoboard identification process on 19 January 2001 that photo 4 on board 3 (Robu) "looks very similar to the man" who used to sell heroin at "Lumley Street", and "he looks very similar to that but I don't know if that's him or not".  On 27 August 2001, she identified photo 7 (Bivolaru) as "the older gentleman [who came] with the younger guy" to deliver "the heroin to Neil … or come to collect the money".  At trial, Ms Jeffree admitted that during this identification process she was "stoned on heroin".  She had given police a description of the appellant prior to examining the photoboard, and she agreed that the only photo which could possibly match that description was photo 7, located in the middle of the photoboard.

[32]  At trial, Bianca Jeffree identified Robu as the person she referred to as "Don Two".

[33]  Lynette Pilgrim gave a statement to police on 15 November 2000.  In Pilgrim's statement on 15 November 2000, she claimed that she had known "Don" in Sydney during the 1980s.  This was clearly wrong:  Robu did not arrive in Australia until the mid-1990s.  On 22 November 2000, she said she knew the person in photo 4 on board 3 as someone she knew, but she was not certain where from.  The tape-recording of this process was stopped.  When it resumed, Pilgrim agreed that she had said something to the police officer, who had not said anything to her.  She then identified Robu as "Don".  When cross-examined at trial, Pilgrim said that she had been reluctant to identify him because of a concern about being prosecuted for prostitution.  She was also intoxicated when the photoboard identification took place.  When Pilgrim enquired jokingly whether she was being shown "the rapists' [file]", a police officer in attendance said:  "I've no idea what they've done."  It was said on Robu's behalf that this may have led the jury to believe that all the persons in the photographs had criminal records.  An application to discharge the jury on this basis was refused.  The refusal of this application is not the subject of a ground of appeal.

[34]  On 10 May 2001, Ms Pilgrim looked at the photoboard for about 40 seconds and said that she did not recognise anybody on it.  After she was asked if she wanted more time to look at it, she identified photo 7, but said that it was "very vague to me where I know him from", and that photo 7 was "the only face … that looks familiar to me".

[35]  Elizah Bartley identified a photograph of Bivolaru as the person who had supplied heroin to her.  At the time, she was probably on methadone.  There was, however, no suggestion in cross-examination that she did not know each of the appellants.

[36]  Debra Irwin identified Bivolaru from a photoboard on 5 March 2001 as the person from whom she bought heroin.  Before this photoboard identification, she provided police with a description of him.  She said that whenever she had dealings with him he always used to wear a hat and glasses.

[37]  Jacqueline McReaddie made a photoboard identification of Evan.  She also made a dock identification of Evan.  This identification was not challenged in cross-examination.  It was put to her on Evan's behalf that she was told to put money into Evan's bank account by someone else, and that she had never received any heroin from Evan.  It was also suggested to her that she was mistaken about seeing Evan in Cairns in August to October 1999.  On 29 January 2001, she said during the photoboard identification process:  "Um, I'm not sure 'cause I didn't have as much to do with this other person but number 4 reminds me of the person I knew as 'Don'."  She was intoxicated when this process took place.  She acknowledged in cross-examination that she had limited contact with Robu, and that she was unable to say how many times she had seen Evan and Robu together.  McReaddie made a dock identification of Robu as "Don" over objection from Robu's Counsel.  It was suggested to her in cross-examination that she and Robu had met socially.

[38]  On 28 February 2001, McReaddie identified Bivolaru as photo 7 on a photoboard.  She also made a dock identification of Bivolaru.  In cross-examination, it was suggested to her on behalf of Bivolaru that they had met at the house of some other Romanians and that McReaddie had confused Bivolaru with one or other of the other Romanians.

[39]  Wayne Ferguson made a photoboard identification of the appellants, but the photoboards were lost prior to trial.  He made a dock identification of Evan, Robu and Bivolaru.  Ferguson's identification of Evan was not challenged in cross-examination.  Indeed, it was put to him on Evan's behalf that he made up his evidence to get back at Evan for sleeping with his girlfriend.  It was also put to Ferguson that he was incorrect in thinking that he had seen Evan in Cairns in August 1999.  On Robu's behalf, it was put to Ferguson that they had met socially.  On behalf of Bivolaru, it was suggested to Ferguson that Bivolaru had been introduced as "Nick".  Ferguson alleged that the appellants had "put a hit on me", asserting that he had been given this information by a police officer, Constable Wunsch.  The police officer in question denied that he had ever given Ferguson information to that effect.  It is said on the appellants' behalf that the jury should have been instructed to disregard Ferguson's evidence in its entirety on the footing that he was a demonstrably unreliable witness.  This contention should be rejected, because, although there were reasons to doubt aspects of Ferguson's evidence, it was, as has been seen, supported in important respects by other evidence.

The arguments on appeal

[40]  All of the appellants submit that the learned primary judge erred in permitting the dock identifications to which I have referred and in refusing counsel for the appellants access to the s 13A materials relating to Ferguson and McReaddie.

[41]  Robu contends that the learned primary judge erred in holding that the photoboard identifications by Jeffree, Pilgrim, McReaddie and the dock identifications by McReaddie and Ferguson were admissible.  Robu's counsel also contends that the learned trial judge erred in admitting evidence of the telephone matrix against his client. 

[42]  On behalf of Bivolaru and Robu, it was said that the directions given by the learned trial judge in relation to the issue of identification were inadequate to ensure a fair trial.[1]

[43]  Bivolaru's principal submission was that the learned trial judge erred in his directions to the jury in relation to their comparison between Bivolaru's recorded voice and the voice on the telephone intercepts.

[44]  Evan was unrepresented on the appeal; and his notice of appeal was deficient in its statement of grounds of appeal.  Evan was, however, permitted, without objection from the respondent, to rely on written and oral submissions which picked up many of the arguments agitated on behalf of Robu and Bivolaru.  Further, subsequent to the hearing of the appeal, written submissions were made by senior counsel on behalf of Evan.  In these submissions, Evan argued that the learned primary judge had erred in not allowing him access to the s 13A materials relating to Ferguson and McReaddie for the purposes of cross-examination.  Evan also argued that the trial judge erred in admitting the telephone intercepts of Bivolaru which refer to him as a dealer in drugs under the names of "Fane" and "Stefan".

Admissibility

[45]  In relation to the issue of admissibility, the appellants relied upon the decision of the High Court in Pitkin v R[2] to make the point that evidence of mere resemblance is not identification.  Counsel for Robu argued that the evidence of Jeffree, Pilgrim and McReaddie went no higher than evidence of resemblance.

[46]  In Pitkin v R, the High Court quashed a conviction because there was no evidence identifying the appellant as the offender other than the evidence of an eye witness that photographs of the accused which she was shown "looked like" the person she saw commit the offence.  This was the sole evidence upon which the Crown relied to implicate the accused.

[47]  In this appeal, the respondent submits that the evidence of these witnesses was admissible as indicating at least a degree of resemblance on the part of each of the appellants to the persons who supplied drugs to the witnesses as one strand in a circumstantial case from which guilt beyond reasonable doubt could be inferred.  That submission is supported by the authorities.[3]  The evidence is, therefore, admissible.  It has some probative value, but it is not suggested that it would be sufficient, if it stood alone, to support a conclusion of guilt beyond reasonable doubt.  This ground of appeal should be rejected.

[48]  The other complaints made by the appellants in relation to admissibility were, in truth, comments upon the weight which might be accorded the evidence of identification having regard to the circumstances in which it was obtained.  They are not apt to lead to the conclusion that the evidence was inadmissible.  These complaints cannot be sustained.

The trial judge's directions

[49]  It then becomes necessary to consider the arguments relating to the sufficiency of the directions given by the learned trial judge in relation to the dangers of acting upon the evidence of identification. 

[50]  It was established by the decision of the High Court in Domican v The Queen[4] that, because jurors may be unaware of the risks of mistaken identification, juries must be warned, and warned in trenchant terms, of the dangers of acting upon evidence of identification.  Furthermore, attention must be drawn to the particular aspects of the evidence which might be thought to cast doubt on the reliability of the evidence. 

[51]   The decision of the majority of the members of the High Court in Domican v The Queen laid down that the trial judge should "warn the jury as to the dangers of conviction on [identification] evidence where its reliability is disputed".[5]  In the reasons of the majority (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), the need for a judicial warning is expressed in these terms:[6]

"… the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

     Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (Kelleher v The Queen (1974), 131 CLR 534, at p 551; Reg v Turnbull, [1977] QB 224, at p 228; Reg v Burchielli, [1981] VR 611, at pp 616-619; Reg v Bartels (1986), 44 SASR 260, at pp 270-271). The terms of the warning need not follow any particular formula (Reg v De-Cressac (1985), 1 NSWLR 381, at p 384; Reg v Finn (1988) 34 A Crim R 425, at pp 435-436). But it must be cogent and effective (Reg v Dickson, [1983] 1 VR 227, at p 230; Reid (Junior) v The Queen, [1990] 1 AC 363, at p 380). It must be appropriate to the circumstances of the case (Reg v Aziz, [1982] 2 NSWLR 322, at p 328; Reg v Allen (1984), 16 A Crim R 441, at pp 444-445). Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case' (Smith v The Queen (1990), 64 ALJR 588, at p 588). A warning in general terms is insufficient (Kelleher v The Queen (1974), 131 CLR, at p 551). The attention of the jury 'should be drawn to any weaknesses in the identification evidence' (Kelleher v The Queen (1974), 131 CLR, at p 551). Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it (Davies and Cody v The King (1937), 57 CLR 170, at pp 182-183). It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

[52]  It is apparent from this passage that the warning required by Domican v The Queen is to be given in any criminal case where the prosecution relies on identification evidence as "any significant part of the proof of guilt of an offence".  Thus, the need for the warning is not obviated by the existence of other evidence of circumstances tending to inculpate the accused.

[53]  As to the terms of the warning required, the majority of the High Court in Domican v The Queen[7] went on to say:

"… the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case (ibid, at p 446; Reg v Dickson, [1983] 1 VR, at p 230; Reg v Allen (1984), 16 A Crim R, at pp 444-445). But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused (See Reg v Bartels (1986), 44 SASR, at pp 270-271; cf Reg v Goode, [1970] SASR 69, at p 77). The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused (See Reg v Gaunt, [1964] NSWR 864, at p 867). Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused."

[54]  This passage requires that the trial judge draw the jury's attention to the particular aspects of the evidence with the authority of the judge's office.  What is required is a direction from the judge, not merely a comment upon the facts which the jury, as the constitutional tribunal of fact, are free to ignore.[8] 

Directions in relation to visual identification

[55]  With the instruction given by the decision in Domican v The Queen in mind, it is convenient now to turn to the learned trial judge's directions and to consider the criticisms advanced on behalf of the appellants.

[56]  The learned trial judge warned the jury generally in relation to the dangers of acting upon identification evidence.  His Honour's direction began in the following terms:

"I want to go on to the topic of identification because it's probably the most contentious issue for you.  It's certainly the one on which most time has been spent in this court, in this trial.

     You cannot convict any one of the defendants unless you're satisfied beyond reasonable doubt that that particular defendant was involved in activities which fits the description of trafficking as I will soon describe it for you.  The case against each defendant depends to a significant degree on the correctness of the identification of that defendant.  Each defendant argues that the identification of him by the number of witnesses is mistaken.  So I must warn you, therefore, that special caution has to be taken before convicting in reliance on the correctness of identification.  The reason for this is that it's quite possible for an honest witness to be mistaken about identification.  There have been notorious miscarriages of justice occurring, resulting in innocent people being convicted, because of mistaken identity.  A mistaken witness may nevertheless be convincing; even a number of apparently convincing witnesses may be mistaken.  So you are required to examine carefully the circumstances in which the identification by each witness was made.

     How long did the witness have a particular defendant under observation?  Had the witness ever seen the defendant before?  If so, how often?  If only occasionally, had the witness any special reason for remembering the defendant?  What time lapsed between the original sighting and the subsequent identification?  Then, was there any material discrepancy between the description given to the police by the witness when first spoken to by them and when first seen in the evidence, perhaps on the photoboard?"

[57]  It can be seen that, thus far, the trial judge's warning was in conformity with the requirements of Domican v The Queen.  After describing the photoboard identification process, his Honour then went on to say:

"The quality of the identification might be poor, but other evidence might support its correctness, so again your decision as to the identification has to be based upon the totality of the evidence that you have heard, not just on what you saw in the videotape."

[58]  At this point, the appellants complain that his Honour has departed from the requirements of Domican v The Queen.  It may be accepted that the terms of the warning "must be appropriate to the circumstances of the case", as they must be if the trial judge's directions are not to become what Gleeson CJ described in Doggett v The Queen as "ritualistic formularies".[9]  It may also be accepted that, where evidence of identification is only part of the case against an accused, it is appropriate, and, indeed, necessary, to remind the jury that other evidence tending to implicate the defendant may tend to justify a conviction while the evidence of identification, if it stood alone, would not.[10]  Nevertheless, the warning required by Domican v The Queen must be focussed upon the identification evidence on the footing that the jury may decide to convict the accused solely on the basis of the identification evidence.  Accordingly, insofar as each identification evidence was relied upon by the Crown as part of its case, its weight was to be assessed by the jury independently of the other evidence in the case.  While other evidence might justify a conviction independently of the identification evidence, the value of each identification was to be addressed as if that might be the only basis on which the jury might decide to convict.  In my view, the direction given by the learned trial judge was, in this respect, not in conformity with the requirements of Domican v The Queen.

[59]  The learned trial judge went on to direct the jury:

"When identification is attempted with the aid of photographs, as has been the case here, there is introduced peculiar difficulties due to the way in which the two dimensional photographs differ from reality.  There's the fact that the colour is not always accurate and the subject of the photograph may not always be well lit, there may not be the same degree of lighting on each of the photos and that makes the task less satisfactory than personal identification, for example, in a line up.  Photoboards are used as a substitute for having a line up of persons.  The process is obviously more efficient and less expensive and much easier to arrange, but some care is taken as to the selection of the photos that are to be compared.  There is an attempt, you will probably see, of trying to get a sufficient number of other persons of similar build and structure and hairline and so forth.  There was criticism of one of the photoboards of Mr Bivolaru, saying that there were only four others, I think, who were of his apparent age.  But generally speaking it's not an easy task to arrange a photoboard, but it's easier than arranging a police line up, of calling people off the street.

     Some of the witnesses also pointed [to] each of the defendants in the dock and said that was the person whom they dealt with for heroin.  Subject to how well the witness knew to be identified, I must caution you against over reliance on that form of identification.  Even total strangers in court proceedings quickly realise that the defendant in the dock is the person who is alleged to have committed the offence about which they might be giving in evidence and to which their identification is related.  You have to be sure that that identification process is not influenced simply by seeing the defendant in court and in the dock. 

     One such identification was made by Ms McReaddie, another one Mr Ferguson.  They had, they say, a close association with the defendants, particularly the defendant Evan who, they say [, was] the supplier over many months.  By contrast Ms Irwin, who also did this, claims she met a person she knew as Victor, or Ardie or Arnie, at Westcourt.  She only saw him on two occasions, but she also associated that person with the disappearance of her car.  You can appreciate that her capacity to correctly identify someone she's seen on two occasions to be much more reduced than would be McReaddie's or Ferguson's who saw over a much longer period and with a closer association.  So these are the matters you have to take into account.

     …

     So you can see if there are circumstances which allow the witness to make an identification which causes the object of the identification to stand out then you more easily rely upon it.  So the evidence of each individual witness, whilst important in itself, should not be regarded in isolation from the other evidence adduced at trial.

     Other evidence tending to implicate a defendant might be highly relevant.  It may justify a conviction while the evidence of identification, if it was left alone, would be insufficient.  Okay.  So if you just had the identification of one of these persons you mightn't be prepared to act on it.  But the identification of others, its combination with circumstances like the enrolment, the registration card with names and address on it, will - might cause you to take a different view.

     Where evidence is given by a stranger to the defendant or a casual acquaintance you should treat the evidence of identification with care.  You should be cautious about concluding that a - that identification has been established and scrupulous to be satisfied first that the identifying witness is not only honest in his or her evidence but is also accurate.  So those remarks apply to those witnesses who only had brief association with some of the defendants." (emphasis added)

[60]  The appellants direct five principal criticisms at this part of the trial judge's summing up.  First, so far as the photoboard identification of Bivolaru was concerned, it was said that his Honour should not have suggested that problems with the integrity of the photoboard process should be minimised by the suggestion that "it's not an easy task to arrange a photoboard".  In my respectful opinion, the appellants' criticism of his Honour's comment is justified.  It is inconsistent with the requirements of Domican v The Queen to suggest to the jury that deficiencies in the evidence may be overlooked because of the practical difficulties attending the obtaining of satisfactory evidence of identification. 

[61]  Secondly, in relation to the dock identifications, because dock identification is a dangerous form of identification, an explicit caution to that effect is required.[11]  It was said that the required warning was not given by his Honour's caution against "over reliance" on dock identification.  Once again, this criticism is justified.  The question is not whether there could be special confidence in a dock identification, but whether it is sufficiently reliable to be acted upon at all.

[62]  Thirdly, the trial judge did not remind the jury that McReaddie's evidence was that she had little to do with Robu, so that his direction in this regard was apt to increase the jury's confidence in McReaddie's dock identification.There is substance in the criticism as well.

[63]  Fourthly, the appellants complain that the trial judge failed to warn the jury of the danger of allowing unsatisfactory photoboard identification to be bolstered by dock identification.  This warning was said to be necessitated by the need for the judge to warn the jury, with the authority of his office, that "two defective identifications do not necessarily support one another".[12]

[64]  As to this last point, the terms of the learned trial judge's direction did tend to conflate the issue relating to the integrity of each identification with the overall strength of the circumstantial case made against each of the appellants.  It is one thing to say that evidence of two persons to the effect that an offender resembled the accused might add more strength to a circumstantial case than evidence of resemblance from one witness.  It is another thing to say that two identifications, each of which is deficient, because there are reasons to doubt the accuracy of each, support a conclusion that each witness has made an accurate visual identification of an offender.  This criticism is justified, even though, if it stood alone, it might not have warranted a conclusion that the appellants, or any of them, had been prejudiced in their prospects of acquittal.

[65]  The appellants' fifth complaint is that the learned trial judge did not adequately draw the attention of the jury to the particular matters which might be regarded as undermining the evidence of identification.  In Alexander v The Queen,[13] evidence of visual identification of an accused by a witness who is not familiar with the appearance of the accused at the time of the alleged offence was described as "inherently fragile" because of the "vagaries of human perception and recollection".[14]  While the "vagaries of human perception and recollection" are less significant, and the evidence of identification accordingly less "fragile", where evidence of identification is given by a witness who has become familiar with an accused because of repeated contact over time, there may be other reasons to doubt that evidence, for example, because a witness' history of drug abuse may tend to cast doubt on his or her reliability.

[66]  As is apparent from my summary of the evidence of identification of the witnesses, there were features of the evidence which could reasonably be regarded as undermining their evidence of visual identification.  Most of these features were drawn to the attention of the jury by the learned trial judge.  There was also, as has been seen, a body of evidence which provided real circumstantial support for the evidence of the witnesses for the prosecution.  And, in the case of most of the witnesses, there was little in the way of a suggestion that they did not know the appellants.  There was, however, in my respectful opinion, more force in the appellants' complaint that the terms in which the aspects of the evidence which might reasonably have been thought to render it unreliable were drawn to the attention of the jury did not conform to the requirements of Domican v The Queen.

[67]  In this regard, the learned trial judge introduced his discussion of the particular aspects of the identification evidence which were said by the defence to be unsatisfactory by saying:  "I'm required also to deal with the challenges which defence counsel have made as to the reliability of the evidence given by these identifying witnesses."  In discussing these matters, his Honour said:  "these are matters that you take into account.  They've been addressed to you in argument, so you have to have regard to them."

[68]  The decision in Domican v The Queen requires that the trial judge isolate and identify, by way of direction on his authority for the benefit of the jury, and not merely by way of comment which the jury are at liberty to disregard, matters which might reasonably be regarded as undermining the reliability of the identification evidence.  On the appellant's behalf, the point is made that it is not because these deficiencies had been raised in argument by counsel for the appellant that the weaknesses in the identification evidence had to be "taken into account", but because it was necessary for the jury to have isolated for their benefit matters which the judge considered might reasonably be regarded as undermining the identification evidence.

[69]  In my respectful opinion, the fifth ground of criticism of the learned trial judge's summing up must also be accepted.

Voice identification

[70]  In order to link Robu with the body of evidence of telephone contacts constituted by the "telephone matrix", the Crown relied upon the evidence of Jeffree that when she called the specific number referred to in [15] above, on one occasion she recognised the voice of the person who answered as that of Robu.  In cross-examination, Jeffree conceded that she could not be absolutely certain that the voice she heard was that of Robu.

[71]  The learned trial judge said of this evidence:

"Importantly counsel argues that Jeffree's purported recognition of Robu's voice cannot be relied upon.  Voice recognition is, of course, very difficult … But there are other circumstances, the number of calls to Melissa Kitto's number, and so on.

     Again, I remind you, the weight that you give to these circumstances is entirely a matter for yourself.  You have got to weigh all those circumstances."

[72]  Later, his Honour reminded the jury of the cross-examination in which Jeffree had admitted that she could not be "absolutely certain" that the voice she had heard was that of Robu.

[73]  On Robu's behalf, it is submitted that his Honour's comment falls far short of the warning required by Domican v The Queen.  This submission must be accepted.  The fleeting nature of the opportunity for Jeffree to make a reliable identification of Robu's voice was such as to require the jury to be given a particular warning of the sort described in Domican v The Queen.

Directions on voice comparison

[74]  Bivolaru complains that the learned trial judge failed to warn the jury specifically about the dangers of their own comparison of voices on police intercepts of incriminating telephone conversations with voice tape recordings proven to be the voice of Bivolaru recorded by police when his residence was searched and when he was interviewed on 20 February 2001.

[75]  In Bulejcik v The Queen,[15] Toohey and Gaudron JJ said:

"Domican v The Queen ((1992) 173 CLR 555) was concerned with visual identification. Nevertheless, the following passage from the judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ is particularly apposite (Domican (1992) 173 CLR 555 at 561-562): 

     [The relevant passage is set out at paragraph [38] above.]

     Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for. It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert (Cross on Evidence, Aust ed, vol 1, par 39105, citing R v Tilley [1961] 1 WLR 1309; [1961] 3 All ER 406. In R v O'Sullivan [1969] 1 WLR 497; [1969] 2 All ER 237, the Court of Appeal agreed with R v Tilley but recognised that, in practical terms, it may not be possible to prevent the jury from making a handwriting comparison. See also R v Smith (1968) 52 Cr App R 648). It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison. This was not done in the present case."

[76]  In Bulejcik v The Queen, the accused had been secretly taped by police officers out of court, and the comparison was with the accused's unsworn statement from the dock which had been recorded in the course of the trial.  In this context, Toohey and Gaudron JJ said:[16]

"The question rather is whether the jury were given sufficient warning of the difficulties involved.  While they were properly alerted to differences in the acoustics, they were not told to consider:  (a) the different contexts in which the taping took place, namely, at the appellant's home, in the car and in the car park on the one hand and in the courtroom on the other; and (b) the difficulties involved in distinguishing between two voices, both speaking in a particular manner, with which the jury were not familiar. The reference to English not being the appellant's mother tongue was insufficient. Indeed the risk, where an accused's first language is not English, is that a jury might conclude too readily that a foreign accent on a tape is that of the accused where the accents are similar."

[77]  In the present case, the learned trial judge's direction in relation to voice comparison was in the following terms:

"As to the intercept tapes, counsel argues that you'll not accept that it was Mr Bivolaru's voice.  Voice recognition, of course, is difficult, particularly on telephones.  The only other times which you have heard Mr Bivolaru's voice, of course, was in the recording of the raid and in the subsequent record of interview.  Then you have to also rely upon other circumstances identified in the phone calls, reference to Stefan, reference to Fane."

[78]  Three points may be made here.  The first is that his Honour's observation was not given as a direction by the judge with the authority of his office:  rather, it was a reminder of, and comment upon, counsel's argument. 

[79]  Secondly, the terms of his Honour's comment on counsel's submissions were not apt to alert the jury to the specific difficulties against which the passages cited from Bulejcik v The Queen require the jury to be warned in relation to the dangers of confusing voices speaking in a foreign accent, and the limited opportunity for the jury to become familiar with the recorded voice or voices in question.  While it might be argued that the jury would be fully alive to these difficulties without the need for judicial instruction, the warning is required by law.  It was not given. 

[80]  The third point is that the learned trial judge's invitation to the jury to rely upon the references to Evan in the recording as apt to confirm that the voice recorded was that of Bivolaru was predicated upon the assumption that Bivolaru was the only candidate with a Romanian accent likely to be making references to Evan.  The correctness of that assumption was not common ground, and, at the least, the jury should have been warned of this.

[81]  At this point, it is convenient to mention Robu's complaint that references in the telephone intercepts to "Crow" might have been taken by the jury to be references to him because of his physical appearance.  Robu complains that these references were hearsay and of no probative value so far as he was concerned, and should have been excluded.  The respondent argues that the trial judge's directions made it clear that this evidence should be excluded from consideration by the jury so far as the Crown case against Robu was concerned. 

[82]  References by the voice on the telephone intercepts to "Crow" were apt to suggest an association between Robu and Bivolaru which was prejudicial to the prospects of an acquittal for either of them.  The absence of the warning required by the judgment of Toohey and Gaudron JJ in Bulejcik v The Queen means that the verdict against Bivolaru is affected by irregularity insofar as the jury may have acted on the footing that Bivolaru's was the voice on the telephone intercepts.  The absence of a sufficient warning in relation to the difficulties involved in voice comparison was a substantial irregularity in the trial process so far as Bivolaru was concerned.  Both Robu and Evan may also have been prejudiced by this irregularity in the trial process. 

[83]  The telephone intercepts included references to "Crow", which might have been taken by the jury as evidence of a criminal association between Bivolaru and Robu.  To that extent, there was also an irregularity in the conviction of Robu. 

[84]  Similarly, the jury were invited by the trial judge to infer that Evan had been referred to by Bivolaru in the intercepts as "Fane".  The case of voice identification against Bivolaru could not legitimately be bolstered by the references to "Fane".  Before the telephone intercepts could be treated as Bivolaru's assertion of a criminal association with Evan, it had to be established that the voice in question on the intercepts was that of Bivolaru.  It could not rationally be inferred that the voice was that of Bivolaru because the speaker was asserting an association with someone with the same name as an associate of Bivolaru.

[85]  In my respectful opinion, the learned trial judge erred in admitting, in the evidence of the telephone intercepts against Bivolaru, reference to the names "Fane" and "Stefan" as a dealer in drugs, and in ruling that there was "no basis for deleting any reference to the name Fane".

[86]  In summary, in relation to the issues of visual and aural identification, the appellants have, in my respectful opinion, made good their contentions that the directions given to the jury on these issues were not sufficient to ensure that the appellants received a fair trial according to law.  In addition, the evidence of the telephone intercepts should not have been admitted with the references to "Crow", "Fane" and "Stefan".   

The s 13A materials

[87]  Pursuant to s 13A(7) of the Act, a sentencing judge is obliged to "cause … to be sealed and placed on the court file with an order that it may be opened only by an order of the court" the offender's undertaking to cooperate with the authorities in a proceeding about an offence, the record of evidence or submissions relating to the reduction of sentence, and the remarks made by the sentencing judge.  The sentencing remarks must contain, by virtue of s 13A(7)(b)(ii), a statement of the sentence which would have been imposed had it not been for the cooperation which the offender had undertaken to provide.

[88]  In the sentencing of each of McReaddie and Ferguson, who had undertaken to cooperate with the authorities in relation to the proceedings against the appellants, the procedure in s 13A(7) had been followed.  It is apparent from the s 13A materials that both McReaddie and Ferguson received substantial discounts on their sentences for agreeing to give evidence against the appellants.

[89]  At trial, counsel for Bivolaru applied for an order for the unsealing of the envelope on the file relating to Ferguson.  Counsel made it clear that he sought a similar order in relation to McReaddie.  The learned primary judge rejected the application on the footing that the material in the sealed envelope was irrelevant.  His Honour said that what the sentence may have been, but for the witness' promised cooperation, was not relevant to the credibility of the witness.  His Honour observed of Ferguson:  "He had no idea when he walked into Court to be sentenced what penalty he would be given." 

[90]  His Honour and counsel appear to have been somewhat at cross-purposes.  Counsel's interest was not in what the witness may have expected by way of sentence or reduction in sentence "when he walked into Court", but in what the sentence would be if the promised cooperation was not forthcoming.  The relevance for counsel was that the witness' sentence might be re-opened under s 188 of the Act on the application of the prosecution if the prosecution were of the view that the witness had failed to provide the promised cooperation.  Ferguson, for example, had undertaken to give evidence in accordance with the statement furnished to the authorities before he was sentenced.  Having been given a five year suspended sentence, he was faced with the prospect of a six year sentence if his sentences were to be reopened as a result of his resiling from his earlier statement. 

[91]  Each of Ferguson and McReaddie had a real ongoing incentive "to minimise his [or her] own criminality and maximise that of others, including the appellant[s]"; and making this point to the jury to undermine the credibility of Ferguson and McReaddie was "a most obvious forensic way to lead the jury to a reasonable doubt" as to the reliability of the evidence of Ferguson and McReaddie against the appellants.[17]  The learned trial judge's refusal of access to the s 13A materials "withheld from [the appellants] what may have proved to be a very effective foothold for cross-examination to this end".[18] 

[92]  The decision which the learned trial judge made was one which involved the exercise of a judicial discretion.  The considerations which bear upon the exercise of such a discretion may point in different directions.  It may be that, in some cases, there will be considerations, such as the safety of witnesses or other persons, which militate against allowing access.  No such competing considerations were present in this case.  There was good reason to allow access to the s 13A materials, and no good reason to deny it.  Accordingly, I conclude that his Honour erred in refusing access to these materials.

[93]  The erroneous denial to the appellants of a forensic advantage which should have been made available to them was a significant irregularity in the trial.  The Crown case was strong, but it was not so overwhelming that the credibility of the witnesses in whom the prosecution was obliged to place substantial reliance was not in issue.  One cannot be confident that if the evidence of Ferguson and McReaddie had been entirely discredited, it was inevitable that the other evidence would have led to a conviction of any of the appellants.[19]  In any event, because of the other irregularities to which I have referred, there is no reason to consider whether this error, if standing alone, would have required that the conviction be quashed.

[94]  The Crown did not suggest that s 668E of the Criminal Code could be applied to sustain any of the convictions.  Accordingly, each conviction should be quashed.

Conclusion and orders

[95]  Each appeal must be allowed.  The conviction in each case must be quashed.  There should be a new trial in each case.

[96]  HOLMES JA:  I agree with the reasons for judgment of Keane JA, and the orders he proposes.

[97]  ATKINSON J:  I agree with the orders proposed by Keane JA for the reasons he has given.