not detail, the defence argued that if the jury were to find that
“Terry” was in the guard shack, as opposed to some other locale
near Gate 6, this finding could hurt the defence argument that
the 911 call did not come from the payphone beside the guard
[ 52] I agree with the appellant that the phrase “Gate 6, Terry
speaking” could not be taken as evidence that “Terry” was speaking from the guard shack. She may well have been speaking from
one of many locations in or around Gate 6, some of which were
inside and some of which were outside.
[ 53] The potential hearsay use of the phrase “Gate 6, Terry
speaking” as evidence that the speaker was in the guard shack
was a minor evidentiary point in a lengthy trial. The trial judge
made no reference one way or the other to the comment as
evidence of “Terry’s” specific location. I think his failure to specifically caution the jury against using that comment as evidence
that “Terry” was in the guard shack, could not, in the overall
context of the evidence, have prejudiced the appellant.
( ii) The voice identification evidence instructions
[ 54] Nine witnesses identified the speaker on the 911 call as the
appellant. Nine different witnesses said the speaker was not the
appellant. Two of those nine identified the speaker as Mr. Miller.
Given these diametrically opposed opinions, the dangers inherent
in relying on voice identification evidence to identify the speaker
as the appellant must have been self-evident to the jury.
[ 55] The trial judge provided full instructions in respect of the
dangers inherent in voice identification evidence. He told the jury
to be “very cautious” about relying on voice identification
evidence to support the Crown’s case. He further told the jury
that “honest people do make mistakes”, and that “an apparently
convincing witness can be mistaken”. Finally, he reminded the
jury that from their own experience, they no doubt understood
that one could easily be wrong about a voice identification. The
trial judge directly connected the risk of mistaken voice identification to the possibility of a miscarriage of justice, instructing the
jury, “miscarriages of justice can occur on the basis of mistaken
voice identification”. Any jury hearing these instructions would
understand that it must proceed very cautiously before relying on
voice identification evidence to support the Crown’s case.
[ 56] The appellant submits that the instructions were inadequate because the judge did not tell the jury that the certainty
with which a witness expressed an opinion about voice identification could not be taken as any indication of the accuracy of that
belief. In other words, the jury should have been told that there