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.]

[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.]