Khalil v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0042

ZENON KHALIL	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2023
DATE OF JUDGMENT:	17 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 192
JUDGMENT APPEALED FROM:	[2022] VCC 203 (Judge Hampel)

---

CRIMINAL LAW – Leave to appeal – Conviction – Characterisation of witness’s evidence in prosecution address – Whether prosecutor misled jury – Jury would have understood flaws of witness – Witness’s account not essential.

CRIMINAL LAW – Leave to appeal – Conviction – Incompetence of trial counsel – Whether substantial miscarriage of justice arose – Counsel made legitimate forensic decisions.

CRIMINAL LAW – Leave to appeal – Conviction – Prosecution disclosure – Whether substantial miscarriage of justice arose from late provision of documents – Timing of providing edited versions of transcripts commonplace – No prejudice to defence case from late provision of warrant – Leave to appeal refused.

---

Counsel
Applicant:		In person
Respondent:		Mr DA Glynn
Solicitors
Applicant:	—
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
TAYLOR JA:

On 10 February 2022, following a six-day trial, a jury in the County Court convicted the applicant, now aged 47 years,[1] of home invasion,[2] intentionally cause injury[3] and theft.[4] For the purposes of sentencing, he subsequently pleaded guilty to the summary offence of committing an indictable offence whilst on bail.[5]
[1]His date of birth is 1 February 1976.
[2]Contrary to Crimes Act 1958 s 77A.
[3]Contrary to Crimes Act 1958 s 18.
[4]Contrary to Crimes Act 1958 s 74.
[5]Contrary to Bail Act 1977 s 30B.
Following a plea on 16 February 2022, the applicant was sentenced on 24 February 2022 to a total effective sentence of 7 years. A non-parole period of 4 years and 6 months was set.
The applicant seeks leave to appeal against conviction on the following proposed grounds:
1.A substantial miscarriage of justice arose from Mr Batten (‘the prosecutor’) deliberately misleading the jury.
2.A substantial miscarriage of justice arose from not being represented competently.
3.A substantial miscarriage of justice arose from Her Honour at 12:42, 13:48, 14:20, 15:40 and 16:25 suggests to the jury that Mr Francesco Iaquinto and Mr Ajith Gomes (‘the complainant’) essentially told the same story, and only the applicant’s version differed.
4.A substantial miscarriage of justice arose from the prosecution providing the defence with a copy of the edited versions of the record of interview and covert transcripts so late; not until the third day of trial, thus depriving the applicant and his legal representatives of the opportunity to check or oppose them correctly.
The applicant did not press ground 3.

Background

On 25 March 2019, a number of phone calls were exchanged between the complainant and telephones used by the applicant and Ms Kerry-Anne Stapley. The applicant and Stapley had, a few weeks before, met and commenced an intimate relationship. The complainant was Stapley’s former partner.
Shortly after 2:00 pm on 25 March, the complainant was at home alone. According to the complainant, the glass panel in the front door was smashed, the door was forcibly opened and two men entered the house. The first man to enter the house produced a hammer and, as the complainant retreated, swung it at him. He missed, hitting his co-offender in the head, which caused the co-offender to start bleeding profusely from the head. The man armed with the hammer then struck the complainant repeatedly to the head and shoulders and punched him to the head and face. That same man looped a length of cable around the complainant’s neck a number of times and pulled it tight, choking the complainant. The complainant also said that a knife was produced and he was cut on the side of his head.
Having wrapped the cable a number of times around the complainant’s neck and pulling it tight, the main assailant then dragged the complainant through the house; continuing, at times, to pull tight on the cable and further choking the complainant. During that time he was demanding money and valuables. At one stage the other man punched the complainant a few times to the face and brought an item apparently taken from one of the bedrooms into another bedroom, where, by then, the main assailant had taken and was still choking the complainant.
According to the complainant a phone was heard ringing in the house and the men left. The main assailant allegedly took the complainant’s phone, wallet and some prescription drugs as he left.
The complainant was bleeding profusely from wounds to his head and face. He called 000 and was taken to hospital with a badly lacerated scalp, a fractured nose and multiple bruises to his face, head, torso and neck.
A few weeks later, the applicant, Mr Francesco Iaquinto and Stapley were arrested in respect of the incident. The applicant was interviewed by police and during the course of questioning he was placed in the police cells with two undercover officers. The applicant acknowledged to the undercover officers that he had gone into the house and attacked the complainant with a hammer. These conversations were recorded.
Iaquinto, when arrested, ultimately made full admissions as to his role and what he said was the applicant’s role and the involvement of Stapley. He said he did not know the complainant or Stapley and his involvement came about through the applicant. Iaquinto pleaded guilty to charges in respect of his role. Following an undertaking pursuant to s 5(2AB) of the Sentencing Act 1991, Iaquinto gave evidence at the applicant’s trial.
Stapley, who had remained in a car parked outside the premises throughout the incident, pleaded guilty to common assault by reason of her understanding of what she thought was going to happen in the house.
The applicant continued to deny involvement in the offending. At trial, the prosecution’s case was that the applicant smashed the glass panel of the front door, and once inside the applicant was the main aggressor, armed with the hammer and choking the complainant with the cable.

The evidence of the complainant and Iaquinto

The complainant said he was at home on the day of the incident. That morning he had received a call from Stapley who said she would come to him to repay some money she owed and that she would bring heroin. The complainant denied being a user of heroin at the time.
Later that day he saw a person walk past his bedroom window. He did not recognise the person. Shortly after he heard someone at the front door and a banging noise. As he approached the front door, the glass near the door shattered and he saw a man enter the house holding a hammer, followed by a second person. He did not recognise either person. He described the first person as being about six foot tall, with short hair, ‘rat’s tails’ and that he was not clean shaven and had goatee beard. He was wearing a dark coloured top and carried a backpack. The second person was a bit shorter and was not as thickly set as the first person.
The complainant said he was struck by the first person about 12 to 15 times with the hammer and also punched between 5 and 10 times. He said the person demanded money from him.
In cross-examination it was put to the complainant that he had spoken to Stapley that morning and she had asked him to supply heroin to her and there were a number of telephone calls between them to arrange this. It was then put to him that he saw a single person, being a man with a beard, at the front door, the complainant opened the door and was handed some money for the purposes of buying the heroin, and the complainant then closed the door leaving the man outside ostensibly to retrieve the heroin to complete the purchase. The complainant denied this.
It was put to the complainant that only one person entered the house, and there was a fight between the complainant and this person during which the complainant brandished a knife. It was then put that it was at this point that the second person entered the house and joined the fight. It was put that the second person used a cord to wrap around the complainant’s neck to drag him off the first person who had entered the house. Again, the complainant denied what was put to him.
Iaquinto gave evidence that he was asked by the applicant to accompany him to the house of Stapley’s former boyfriend. His evidence on the reason for going there was inconsistent. He said that he was told by the applicant that they were going to purchase drugs. Later, he denied that he went there knowing that it was to purchase drugs. He said he did not know Stapley or the complainant before that day. He said he agreed to go because he owed the applicant money which the applicant had agreed to forgive if Iaquinto went with him.
Iaquinto said when they got to the complainant’s house, the applicant called out the name of the person living there. The applicant then pulled out a hammer from his backpack, smashed the glass pane next to the door and forced his way into the house and confronted the complainant. He said the complainant had dropped a phone he was holding and grabbed a knife. Iaquinto said as he was trying to calm the applicant, the applicant swung the hammer hitting Iaquinto in the head. He said this left him bleeding from the head and he reached for a kitchen towel to help with the bleeding. He saw the applicant strike the complainant on the side of the head with the hammer. The applicant then put a cord around the complainant’s neck saying ‘give me some money’.
In cross-examination, Iaquinto accepted that he had given an undertaking to give evidence against the applicant and had received a reduced sentence for doing so. It was put to him, and denied, that he was blaming the applicant for his own conduct and that it was he that had attacked the complainant. Iaquinto agreed that he had been a heroin addict but said that he was not using heroin at the time. He accepted that he owed the applicant money which he said was for a drug debt relating to his purchase of ice from the applicant.
Iaquinto denied touching the hammer and denied attacking the complainant with it.

Covert recording

The prosecution also relied on a covert recording made between the applicant and a covert police operative in the cells after the applicant was arrested. Some of the conversation took place in the Arabic language. In the recorded conversation, the applicant told the operative that ‘I hit him… he’s my mate I hit him... He got in the way… I hit him in his head, I hit him in his head’. He said that he had hit ‘both [his] friend and the black guy’.
Asked by the operative whether he had hit the complainant in the shoulders, the applicant replied:
Applicant:     Yeah, fuckin’ lost count how many he got.
Operative:     With the hammer? Or with your hands?
Applicant:     Yeah.
Operative:     To his face.
Applicant:     Yeah.
Operative:     Really?
Applicant:Oh yeah… I lost – I forgot how many times… POW, POW, POW, POW, POW, POW
The same police operative later covertly recorded a conversation with Iaquinto. The operative told Iaquinto that he had spoken to the applicant and was coming to speak to Iaquinto to make sure that he was not talking to police. Iaquinto assured the operative he was ‘staunch’. During the conversation the operative asked Iaquinto what had happened, prompting the following exchange:
Operative:     What happened there?
Iaquinto:        Um –
Operative:     How’d that happen, bro?
Iaquinto:        Um – I’m punching him up –
Operative:     Yeah.
Iaquinto:And then he fuckin’ – he takes out some knife and – and fuckin’ he hits in the head with a fuckin’ hammer, the fuckin dickhead.
Operative:     Bomber?[6]
Iaquinto:        Bomber did, yeah.
[6]Bomber is the nickname of the applicant.
In other parts of the conversation, Iaquinto offered to work for the operative and that he would ‘run anywhere in there with ya’. He told the operative that he was a professional boxer.

The applicant’s account

The applicant gave evidence that he had driven both Stapley and Iaquinto to the complainant’s house. The applicant had given varying accounts as to why they went to the complainant’s house. At trial the applicant said they went there because the complainant owed Stapley money and he was going there to collect it and asked Iaquinto to accompany him to be a support. He has also suggested they went there for the purpose of purchasing heroin from the complainant.
The applicant’s account was that he left Stapley in the car and he and Iaquinto approached the house, but he got a phone call just as he and Iaquinto approached the door and he moved away to take that phone call, leaving Iaquinto alone at the door. The applicant said that by the time he finished his call he could hear noises coming from inside the house. He ran in and saw Iaquinto being threatened by the complainant with a knife. The applicant went in to intervene and tried unsuccessfully to push the complainant away and disarm him. The applicant said he then used a power lead or cable to loop around the complainant in order to pull him off Iaquinto so as to protect him, then stopped Iaquinto from further assaulting the complainant before the two of them left.
Essentially, the applicant’s case, recognising that he had no burden of proof, was that the incident was a drug deal that went badly wrong and that he had only been involved in the assault to defend Iaquinto from an attack that was instigated by the complainant who was armed with a knife. An important plank of the applicant’s defence was that it was the first person who had entered the house who was armed with the hammer, and if the jury could not be satisfied beyond reasonable doubt that it was the applicant who entered first then the applicant must be acquitted.

Ground 1

The parties’ submissions

The applicant contends that the prosecutor misled the jury by advancing a version of events that was inconsistent with the evidence of Iaquinto. Specifically, the applicant submits the prosecutor invited the jury to reject the version of events that had the applicant and Iaquinto attending the address for the purpose of purchasing heroin from the complainant. The applicant says that the prosecutor knew this was the purpose for their attendance from Iaquinto’s record of interview and his evidence. Despite this, in his closing address the prosecutor told the jury Iaquinto agreed with the complainant the incident had nothing to do with a heroin transaction. As such, the applicant said, the prosecutor’s address to the jury was misleading and perverted the course of justice.
The respondent submits that none of the matters complained of, individually or in combination, demonstrate that the prosecutor misled the jury, deliberately or otherwise. The prosecutor’s conduct was entirely orthodox and in accordance with his duties, including to put before the jury a full and firm presentation of the prosecution case.
The respondent highlights the prosecutor’s statement in closing that Iaquinto was ‘a man who’s admitted on his own account, involvement in a violent home invasion and an assault, and has done so in circumstances where he’s got an assurance of getting a benefit from making a statement that is against, in effect, [the applicant]’, and the prosecutor stressing the need for the jury to bear in mind the unreliable witness direction they would be given by the judge. There was no attempt to shy away from, let alone mislead the jury in relation to, Iaquinto’s evidence and its limitations.
The respondent submits that there was no error in the prosecutor’s conduct, but even if there was the judge’s directions to the jury were sufficient to cure any perceived defect.

Decision

In his address to the jury, the prosecutor invited the jury to accept the account given by Iaquinto. He told the jury that the prosecution did not necessarily accept every detail of his evidence but that it was consistent with the complainant’s account and could be accepted by them on critical matters.
The prosecutor reminded the jury that Iaquinto had admitted to his part in the home invasion and had been given a reduced sentence by giving evidence. The prosecutor observed that Iaquinto had struggled to answer questions, and a reading of the transcript makes it plain that in many respects Iaquinto was a combative and unresponsive witness. The prosecutor told the jury to bear in mind the unreliable witness direction that was to be given by the judge in relation to Iaquinto.
The prosecutor relied on Iaquinto’s evidence that he had no prior association with Stapley or the complainant. The applicant says that this was misleading given the prosecutor must have known that Iaquinto had gone there to purchase drugs. In part that submission was based on Iaquinto’s record of interview in which he admitted to going to the complainant’s house on the understanding that it was for the purpose of purchasing heroin.
We are unable to uphold this ground. In his evidence in chief, Iaquinto said that when the applicant had asked him to accompany him, Iaquinto was told by the applicant that they were going to get drugs and he wanted Iaquinto to go along to ‘score drugs’ and to support the applicant. That explanation for why the applicant, Iaquinto and Stapley went to the complainant’s house was before the jury. It provided some support for the defence contention that they went to the house for a drug deal and the violence erupted when the complainant tried to take the money without handing over the drugs. At trial, counsel for the applicant relied on Iaquinto’s evidence to support this version.
Plainly Iaquinto was a witness of compromised credibility. He was a co-offender and had much to gain from giving evidence against the applicant. These flaws were patent, and would have been well understood by the jury. Although the account of Iaquinto directly supported the prosecution case, it was by no means essential. There was no dispute the applicant was present and struck the complainant. The complainant gave a description of the assailant who struck him with the hammer that better resembled the applicant than Iaquinto. It is plain from the covert recording that the applicant admitted to accidentally striking his co-offender with the hammer, which was consistent with Iaquinto’s evidence and supported the prosecution case that it was the applicant who wielded the hammer.
The prosecutor did not unduly or unfairly rely on the evidence of Iaquinto. Nor was the prosecutor obliged to adduce or refer to Iaquinto’s record of interview as a source of admissions or inconsistent statements.
The applicant also complained that the prosecutor took advantage of the absence of evidence that the complainant, Iaquinto and the applicant were known from prison to contend that there was no prior connection between the complainant and Iaquinto. There was no unfairness or impropriety in that course. The prosecutor proceeded on the basis of the evidence before the jury, which he was entitled to do. Further, whether or not the three of them were in prison together is a question of fact that was not established in the evidence, either at trial or in this Court.

Ground 2

The parties’ submissions

The applicant submits that throughout the trial his counsel did not follow his instructions. He believes that as a result of COVID-19 restrictions in place at the time, he was unable to communicate effectively with his counsel and was thus unable to instruct. The applicant outlined complaints as to his counsel’s conduct during the trial which he says put him at a great disadvantage.
The applicant submits that his counsel ought to have:
(a)established that the complainant, Iaquinto and the applicant were all known to each other before the incident as they had been in gaol together;
(b)cross-examined Iaquinto on inconsistencies between his evidence and his record of interview and answers given by him in an examination under s 198B of the Criminal Procedure Act2009;
(c)cross-examined the complainant on his inability to identify the applicant at the committal;
(d)cross-examined the informant on the presence of Iaquinto’s and the complainant’s DNA on the hammer;
(e)cross-examined the medical witness who gave evidence as to the extent of the complainant’s injuries on the basis that the injuries were not consistent with being bashed multiple times to the head with a hammer; and
(f)allied to the previous point, put the hammer itself before the jury rather than a photograph.

The respondent submits that the applicant’s counsel clearly and effectively challenged the evidence led by the prosecution and put forward the applicant’s case in his defence. Whilst individual pieces of evidence set out by the applicant were not tendered, the effect of them was achieved through cross-examining other witnesses. The impugned conduct ought properly to be viewed as legitimate forensic decisions made by experienced trial counsel.
We note that trial counsel was advised of the allegation of incompetence and afforded the opportunity to respond to it. An affidavit of trial counsel affirmed on 8 May 2023 was tendered. In it, counsel deposed to his experience as a trial advocate since 1998, first as a public defender at Victoria Legal Aid and from 2007 as a member of the Victorian Bar. He says that he appeared for the applicant in all pre-trial hearings and at the trial. He says ‘the cross-examination I conducted of the witnesses was based on legitimate forensic decisions’.

Decision

The applicable principles are well established. The issue for this Court is not whether or not the representation given to the applicant was competent but whether there has been a substantial miscarriage of justice. In D’Orta-Ekenaike v Victoria Legal Aid,[7] McHugh J considered the relevant principles which he noted arise in the context where a party is bound by the way his or her case is conducted by counsel. McHugh J said:
The particulars of incompetence generally involve issues concerning admissions or failure to adduce or failure to object to certain evidence. Wrongly advising the accused not to give evidence is a common complaint. Cross-examination is the other main area of challenge — the failure to pursue inconsistencies, the failure to put certain questions. More unusual examples include intoxication, advising the client to plead not guilty and raising character during examination-in-chief without properly checking the accused’s antecedents.
On many occasions appellate courts have reiterated the caution with which such allegations are approached. The Victorian Court of Appeal said:
No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial ... A court of criminal appeal is poorly equipped to review decisions made by counsel during the course of a criminal trial, many of which have to be made on the spur of the moment or in circumstances with which an appellate court cannot hope to be familiar. Usually there must be something akin to flagrant incompetence of counsel before it will be moved to intervene.[8]
[7](2005) 223 CLR 1; [2005] HCA 12.
[8]Ibid 65 [197]–[198] (citations omitted).
In TKWJ v The Queen,[9] Gleeson CJ said:
For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.[10]
[9](2002) 212 CLR 124; [2002] HCA 46.
[10]Ibid 130–1 [16].
Having read the trial transcript and exhibits and considered the applicant’s submissions we cannot uphold this ground.
As already observed, the defence case was that Iaquinto, Stapley and the applicant went to the complainant’s house to buy drugs. The complainant opened the door, took the cash and then retreated, grabbing a knife. A fight between Iaquinto and the complainant ensued and the applicant got involved to defend Iaquinto from the complainant who was armed with a knife. The applicant’s trial counsel elicited such evidence as he could from the complainant and Iaquinto to establish the facts necessary to raise the defence and the applicant also gave evidence in his defence. As the respondents submitted in this Court, Iaquinto had said in his evidence that he was told the purpose of the trip was to acquire drugs. There was no need to cross-examine any other witnesses on that topic.
The cross-examination of the complainant and Iaquinto was competent: a reasonable attack was made on the credibility of both witnesses and inconsistencies were appropriately exposed and explored. In assessing the performance of counsel it is also fair to take into account the fact that the defence was heavily burdened by the admissions made by the applicant in the covert recording which, in significant ways, supported the prosecution case that it was he who had wielded the hammer and accidently struck Iaquinto and the complainant deliberately.
We do not accept that it was an error for counsel not to put to the complainant that he knew both Iaquinto and the applicant from prison. It carried obvious risks and would not have much assisted the applicant.
Similarly, it was reasonable for counsel not to cross-examine in a way that would have led to the admission of Iaquinto’s record of interview or the content of his covertly recorded conversation with the police operative. Counsel made a decision to selectively cross-examine on parts of the covert recording in which Iaquinto admitted to being a heroin user and used that answer to attack Iaquinto and support the theory that the whole episode arose from a drug deal.
It is true that parts of the Iaquinto covert recording suggests that he was punching the complainant before the applicant became involved and it might have been inferred he entered the house first, however, it also has the applicant brandishing the hammer and hitting Iaquinto. This was highly damaging and consistent with the prosecution case. It cannot be said that the failure to elicit either the record of interview or covert recording was an incompetent forensic decision.
Cross-examining the complainant on any failure to identify the applicant at committal would not have taken the applicant very far. The complainant did not identify the applicant, rather he described the physical differences between the two assailants. Differences between the description of the first assailant and the applicant were adequately exposed.
The presence of DNA of Iaquinto, the complainant and the applicant was easily explained by the evidence and would have been of no relevance to the jury in determining the charges. That is particularly so given there was really no dispute that the applicant handled the hammer at at least one point.
Finally, the failure to further cross-examine the medical witness about whether the injuries were consistent with being struck by a hammer 10 to 15 times was neither irrational nor incompetent. It was not unreasonable to make a forensic decision not to highlight or dwell on the injuries.

Ground 3

Although the applicant did not press this ground — indeed, in his oral submissions, the applicant conceded that the judge’s directions were ‘ethical and fair’ — it is appropriate to address it briefly.
First, before deciding not to press this ground the applicant had submitted that the judge suggested to the jury that Iaquinto and the complainant told the same or similar story. This highlighted the differences in the applicant’s narrative and as a result, a miscarriage of justice arose.
The respondent had submitted that there were, in essence, two narratives that ran throughout the trial: that advanced by the prosecution, contained in the evidence of the complainant and Iaquinto, and the narrative advanced by the applicant. The judge’s summary of the evidence in her charge to the jury fairly identified these narratives. The prosecutor conceded in his closing address that there were differences in the evidence of the complainant and Iaquinto, and the judge highlighted this concession to the jury in the charge.
Secondly, the applicant had submitted that the judge misled the jury when characterising the evidence of Dr Jennifer Jamieson, who was working as a trauma staff specialist at the Alfred Hospital during the complainant’s admission for the injuries sustained in the incident. The applicant had submitted the judge told the jury Dr Jamieson’s evidence substantiated the complainant’s injuries when in fact Dr Jamieson was never asked nor indicated that the injuries happened in the way the complainant described.
As the applicant fairly accepted in the course of his submissions, the judge fairly summarised the evidence and the respective arguments. The judge clearly articulated the burden of proof that rested with the prosecution. It was not an error for the judge to observe that there were similarities in the evidence of Iaquinto and the complainant. On crucial matters, that was plainly correct.

Ground 4

The parties’ submissions

The applicant takes issue with the prosecution only providing the defence with a copy of the edited versions of the record of interview and covert transcripts on the third day of trial, particularly given he had already been on remand for three years at that point.
The applicant also submits that various parts of the covert recording transcript were misleading, including because they were incorrectly translated from Arabic to English.
Finally, the applicant submits that before the commencement of the trial he was only made aware of two search warrants and was informed that only one of them had been executed. It was only at the commencement of the trial that a third search warrant was produced.
The respondent submits that the timing of the provision of the edited record of interview recording is not unusual and resulted in no unfairness to the applicant. Discussion in the course of the trial makes plain that the judge would not play the record of interview to the jury before defence counsel had time to check the edits.
In relation to the search warrant, the respondent concedes it is undesirable that it was disclosed late but submits that the applicant has not pointed to a substantial miscarriage of justice arising from the late disclosure. The respondent submits that raising the issue in the defence response but not pursuing it at trial demonstrates that defence counsel was satisfied there was no longer a proper basis to pursue the challenge to the warrant.
The respondent submits there was ample time for issue to be taken with the translation of any portion of the recording and any perceived deficits or errors in the translations. The covert operative who spoke with the applicant in the recording speaks both English and Arabic, and gave evidence about the process of translating the Arabic portions of the recording into English. There was no challenge in cross-examination as to the linguistic qualifications of the covert operative, or regarding the translations. The respondent submits that the applicant ought not be permitted to raise the issue of the accuracy of the translations in circumstances where the admissibility of the covert recording was argued pre-trial and the translation was not raised as a basis for inadmissibility.

Decision

The respondent’s submissions must be accepted. The defence had timely access to the unedited versions of the record of interview and the covert recording. The providing of an edited version close to trial, or even in the running, is commonplace. There is no reason to believe that the provision of the edited version caused any issues for the defence, and none were raised by counsel. Similarly there was no challenge to the translation.
As the respondent conceded it was unfortunate that one of the warrants was located late in the day, however, no miscarriage of justice resulted. There was no prejudice to the defence case.
To the extent that the applicant submits that the warrant was not served at the time it was executed, there was no evidence this was so and no issue was taken at trial. It does not give rise to a miscarriage of justice.

Conclusion

The application for leave to appeal must be refused.

---

[2023] VSCA 192

17 August 2023