R v Khelwaty & Khelwaty No. DCCRM-02-520

R v KHELWATY & KHELWATY
[2002] SADC 63
Judge Vanstone
Criminal
Introduction

Each accused man is charged jointly by Information dated 30 July 2001 with two counts of Threatening Life, contrary to section 19(1) of the Criminal Law Consolidation Act 1935. The offences are alleged to have occurred on 4 January 2001 at Oaklands Park. The trial of these charges was originally scheduled to take place before Justice Besanko on 14 January 2002. Pre-trial argument did indeed commence on that day and continued on 15 and 16 January. Then, as now, Mr G Aitken appeared for the accused Habibullah Khelwaty and Mr G Mancini appeared for Sulaiman Khelwaty. Ms S McDonald then appeared for the Director of Public Prosecutions, but before me Mr M Anders appears to prosecute.
On 15 January His Honour delivered rulings on the various applications he had heard. On 16 January, as a result of new information given her by the complainants, Ms McDonald sought and was granted an adjournment of the trial. For reasons which are not known to me the matter was later removed to this court.
Since the proceedings in January took place, new Rule 9 notices have been filed on behalf of both accused men. Some of the applications therein raise new issues which are related to the reasons for which Ms McDonald sought to vacate the January trial but other matters in them were previously ventilated before Justice Besanko. As far as those latter topics are concerned, I take the view that defence counsel are entitled to re-argue those matters before me and are not bound, as it were, by the rulings given by another judge. On Friday, 17 May I ruled on the various matters raised. What follows are my reasons for those rulings. I deal with the various applications in turn.
Rule 8 Applications
On 15 January 2002, Rule 8 applications in identical terms were filed on behalf of both accused men. The orders sought were that the trial be stayed as an abuse of the process of the court. I set out the particulars given in support of the application:
“2.1A material witness Anthony Constantinou is not to be called by the prosecution.
2.2The prosecution has obtained a statement from Anthony Constantinou.
2.3The prosecution has supplied the applicant with a copy of that statement.
2.4The applicant will be deprived of an opportunity of acquittal if the material witness Anthony Constantinou is not called by the prosecution and would therefore be deprived of a fair trial such as to amount to an abuse of the process of the Court.
2.5The applicant has a legitimate expectation that the witness Anthony Constantinou would be called and will be called by the prosecution at trial.”
It is unnecessary to go to the affidavits filed in support of the applications. The factual background to the applications is that when interviewed by police in relation to these allegations, Habibullah Khelwaty said that at the relevant time he had been with a person called Anthony whom he believed to be Lebanese. In essence he pointed to this person as being a witness who would confirm that the alleged threats had not occurred. The investigating officer, Detective Denton, made contact with a person by the name of Anthony Constantinou, a person who was known to him prior to these alleged offences. Denton has provided a statement setting out some history of his dealings with Constantinou and of his attempts to obtain a signed statement from him in respect of the allegations of threatening life. Denton’s efforts to obtain a statement from Constantinou essentially failed. He did speak to Constantinou over the telephone and gained from him a brief account of what occurred on the charged occasion, which was to the effect that he had been with the two accused men, that he knew the complainants and saw them on this occasion, but that nothing occurred between the two pairs of men. Denton drafted a statement on the basis of what had been said to him but his efforts to have it confirmed and signed failed. The statement of Denton detailing his dealings with Constantinou was not made until after the hearing before Besanko J. At that hearing Ms McDonald was not asked by the Court to disclose her reasons for declining to call Constantinou. And, obviously, no order staying the proceedings was made.
As occurred before Justice Besanko, I was referred to several authorities dealing with the obligations of prosecutors in respect of calling or presenting witnesses. Those included R v Apostilides (1984) 154 CLR 563, R v O’Brien (1996) 66 SASR 396, and R v Kneebone [1999] NSW3CCA 279. In my view none of these authorities suggest that proceedings on an Information could be stayed by reason of the prosecution stance here. Nor do they justify my asking the prosecutor to set out his reasons for not calling Constantinou as a witness. Mr Anders did purport to offer some reasons in justification of his position which was that he had neither a statement from Constantinou nor an opportunity to speak with him.
Whether the evidence at trial will point to Constantinou as being a potentially helpful eye witness remains to be seen. In my view this application is not well made and I decline to make the orders sought.
Application For “Basha” Inquiry
Both counsel sought to cross-examine certain persons as to the matters disclosed to Ms McDonald on 16 January 2002 and as to what had been said by the complainants on other occasions prior to that date. The persons sought to be cross-examined were the complainants, Faraz Sabetzadeh (the person said by the complainants on 16 January 2001 to have been with them at the time of the alleged offences), Detective Denton (who took new statements from the complainants as to the presence at the scene of Sabetzadeh), Ms McDonald (to whom the new information was given), and police officers Cross and Grimshaw (who took the original reports as to these offences at the Adelaide Police Station on 4 January 2001). I accept that from time to time judges hearing criminal trials are persuaded, as a matter of discretion, to allow some limited cross-examination of proposed prosecution witnesses where, for example, the statement of such a witness has not been presented at the preliminary examination or where, for some other reason, the defence has inadequate notice of a witness’ position on material matters.
So far as Ms McDonald is concerned, she is not a proposed prosecution witness. For reasons which can be readily understood she has, so far, apparently declined to make a statement about the matter. Of course in seeking the adjournment of the trial before Justice Besanko, Ms McDonald did set out the nature of the recent development and, to some extent, what it was the complainants had said to her. One can infer that she instructed Detective Denton to obtain new statements from the complainants, from the uniform officers Cross and Grimshaw, and from Sabetzadeh and to supply one himself. In all these circumstances there would, in my view, be no justification for my acceding to the application to allow Ms McDonald to be called for cross-examination prior to trial.
So far as the other witnesses are concerned, they are at least proposed prosecution witnesses or at least potential prosecution witnesses. Had Abiad, Seto and Denton not provided statements covering this topic, then I should have been inclined to allow them to be called. But to my mind those statements provide adequate notice of their evidence.
As to Sabetzadeh, his statement does not in fact support the complainants’ accounts of the incident. He claims to have a very limited memory of the occasion. In my view, even had the statement of Sabetzadeh been available and presented the preliminary examination, the defence would have been hard-pressed to make out special reasons for him to be called there. I am not suggesting that I feel bound by what the position may have been in the lower court. Rather, I consider that to be a somewhat helpful analysis. In the event I am not persuaded that the interests of justice require that defence counsel have opportunity to cross-examine Sabetzadeh in the absence of the jury.
As to the police witnesses Denton, Cross and Grimshaw, I am not persuaded that there is any justification at all for the request by defence counsel to cross-examine them.
Use Of Interview Audio Tape As Opposed To Video Tape
Mr Mancini’s client was interviewed by police and that interview was recorded by means of both video tape and audio tape. Certain relevant statements and some admissions, although not admissions to the alleged offences, were made in the interview. Mr Mancini has submitted that the interview should be presented to the jury not by means of the video record of it, but rather by means of the audio recording. He has argued that the video does not contain any probative material beyond that which is available on the audiotape. Further, he put that unless the prosecution can point to some proper use of the video which is not available via the audio tape, then the video has no relevance. He submits that “the purpose of the recording of the interview was not to permit analysis of the applicant’s demeanour and presentation during the interview”.
I cannot agree with Mr Mancini’s submissions. In my view just as presentation of an interview via an audio tape is to be preferred to the reading out of an interview by a police officer, so is a video tape apt to be of more use to a jury than an audio tape. Certainly it seems from the scheme of s.74D, E and F of the Summary Offences Act 1953 that the Parliament regards recording an interview by video as the best method. I do not consider that it is incumbent on the prosecutor to point to scenes on the video tape which are said to be more probative than the corresponding segment of the audio tape. I decline to make the order sought.
Evidence Of Previous Violence Against Complainants
The threat the subject of Count 1 is described in the complainant Abiad’s statement in the following terms:
“We didn’t fuck you guys up last time we will make sure we will next time”.
The complainant Seto relates what is presumably the same threat in these terms:
“We didn’t get you guys last time, but we’re going to get you this time”.
The prosecutor wishes to lead evidence as to how the two accused men became known to the two complainants and, generally, as to how often and in what circumstances the complainants saw the accused men subsequently. Further, Mr Anders wishes to lead evidence from the complainants about an incident which took place in Currie Street, Adelaide, on 26 February 2000 in which an argument developed between the complainant Abiad and a member of a group which included the accused Habibullah. In the confrontation that ensued a member of Habibullah’s group produced a knife and both complainants and one or more others were stabbed. It is not suggested that Habibullah wielded the knife. Although it is not suggested that the accused Sulaiman was present on this occasion, there is evidence, both from Sulaiman himself and from a Detective Mann, that Sulaiman was informed of it by an officer prior to the alleged offences.
Originally the prosecution wished to call evidence of other confrontations between the accused men and the complainants, but Mr Anders has resiled from that position.
It is put by the prosecutor that the evidence of earlier interactions between the two groups is “of the nature of the relationship or background evidence as opposed to similar fact or propensity evidence”. Further, it is argued that the allegations comprising the charges are unintelligible in the absence of this “background evidence”. Further, it is said that the “background evidence” could serve to rebut assertions made by the accused Sulaiman when interviewed that he had had no prior contact with or knowledge of the complainants. And it is argued that the evidence tends to establish an intention to arouse a fear that the threats were likely to be carried out.
In respect of the general evidence of how the complainants and accused men came to know each other and their subsequent interactions, I consider there is a plain relevance and little, if any, prejudicial effect.
As to evidence of the stabbing incident, it has, in my view, a direct relevance in potentially explaining the meaning of the words attributed to the accused Habibullah which are the subject of Count 1. With respect to those who might see it differently, I do not think it is helpful to categorise the stabbing incident as probative of background or relationship. Although the evidence might throw some light on those matters, it is hard to see that, absent the alleged reference to an earlier occasion by Habibullah, the stabbing incident could be properly admitted. Examples of cases where evidence of bad character was admitted not as evidence of propensity nor as evidence of “relationship” or “background” but rather because it had a particular relevance to the alleged facts are: R v Szabo (1977) 75 LSJS 219; R v Tucker (1984) 36 SASR 135; R v Hall (1988) 142 LSJS 406.
Plainly this evidence has marked prejudicial effect, particularly as it relates to the accused Habibullah. It paints him as a person who associates with one or more persons who are prone to violence and as a person who apparently stood by while violence against the complainants was employed. However, I do not consider that such prejudice as the evidence carries with it outweighs the probative force of the evidence. On the prosecution case Habibullah was using his knowledge of prior interactions involving the complainants and his own group to enhance the force of the threat he was uttering. In those circumstances the jury should not be deprived of that evidence. It is highly relevant. Insofar as the accused Sulaiman is concerned, because it is not alleged that he was present at the stabbing incident, the prejudicial effect of the evidence is far less. There is no reason to doubt that an appropriate direction to the jury will neutralise any prejudice arising from this evidence.
Subpoena
On 8 May 2002 a subpoena was issued on behalf of the accused Sulaiman Khelwaty to Ms S McDonald, who as mentioned, was counsel for the Director of Public Prosecutions before Besanko J, and who is employed within the Director’s Office.
The power of the Court to issue a summons is found in section 25 District Court Act 1991. I set out that provision:
“ 25.(1) The Court may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material (or both).
(2) A summons to produce evidentiary material may, instead of providing for production of the material before the Court, provide for production of the material to an officer of the Court nominated in the summons.
(3) If –
(a)a person fails to comply with a summons under subsection (1); or
(b)there are grounds for believing that, if such a summons were issued, a person would not comply with it,
the Court may issue a warrant to have the person arrested and brought before the Court.”
What is “evidentiary material” is set out in section 3:
“‘evidentiary material’ means any document, object or substance of evidentiary value in proceedings before the Court and includes any document, object or substance that should, in the opinion of the Court, be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value;”
Rule 11.01 of the Rules of the District Court provides as follows:
“11.01 The provisions of Rule 81 of the Supreme Court Rules 1987 shall apply mutatis mutandis to the issuing of subpoenas to witnesses in respect of trials in the criminal jurisdiction.”
The terms of the subpoena required Ms McDonald to attend before the Court on 14 May 2002 at 10.00 am to:
“A. Give evidence to the Court.
B. Produce to the Court the following documents:
1.Documents and/or records of all communications between yourself and Belal Abiad including but not limited to proofing notes.
2.Documents and/or records of all communications between yourself and Nicholas Seto including but not limited to proofing notes.
3.Documents and/or records that identify the dates of communications between yourself and Nicholas Seto and Belal Abiad.”
Mr Mancini advised me that in requiring Ms McDonald to “[g]ive evidence to the Court” it was sought to have her attend prior to the jury’s empanelment so that she could give evidence, as part of the so-called “Basha” inquiry, touching her conversations with the complainants on 16 January 2002 and on earlier occasions when she may have “proofed” them, and to ensure that she would be available at the trial proper in case she should be required to then give evidence. (She would presumably only have admissible evidence to give if she could prove a prior inconsistent statement made to her by either complainant.)
Mr Rofe QC, Director of Public Prosecutions, appeared in answer to the subpoena and developed a submission that the subpoena should be set aside on the grounds that it was vexatious or an abuse of the process of the court. (See Rule 81.10 Supreme Court Rules.) As to the requirement that Ms McDonald give evidence before the jury’s empanelment Mr Rofe observed that as matters stood, Ms McDonald was a defence rather than a prosecution witness and could therefore could not be called as part of a “Basha” inquiry.
In terms of the production of documents, in his outline of submissions Mr Rofe effectively listed the only documents answering the description of those sought, in these terms:
“… handwritten comments on the prosecutions copy of the witness statements and a minute from Ms McDonald to the solicitor on file explaining the reason for the return of the file pending a new trial date.”
Mr Rofe submitted that such documents were confidential and were covered by legal professional privilege. Although, he submitted, the prosecution duty of disclosure could, in some cases, circumscribe a claim for legal professional privilege, in this case it was patent that full disclosure of the course of events leading to the adjournment of the first trial had been made, initially to Besanko J in open court and next by means of the new statements taken from the complainants and Faraz Sabetzadeh dealing with those developments.
Insofar as the subpoena required Ms McDonald’s presence at the trial proper, Mr Rofe in effect submitted that it was misconceived and premature inasmuch as nothing Ms McDonald could say was at this time admissible. The only way in which her evidence might become admissible was by operation of section 28 of the Evidence Act 1934 and if – looking into the future – that point was reached, then Ms McDonald would make herself available to be called by either side.
Dealing with this last point first, I do not think that as a general rule the court’s coercive powers should be employed to ensure the presence of a witness whose evidence could, at most, go to prove a prior inconsistent statement of another, particularly where the witness is an officer of the court and there is no reason to doubt his or her preparedness to abide a ruling of the court as to the admissibility of their evidence. But plainly it was not for fear of Ms McDonald not being available at the trial proper which precipitated the issue of the subpoena.
Insofar as it was sought by the subpoena to secure Ms McDonald’s attendance to give evidence at a “Basha” inquiry, again in my view the subpoena was misconceived. Whether there would be a “Basha” inquiry and on what terms, amounts entirely to a matter of discretion. Even leaving that aside, Mr Mancini’s aim was here to use the court’s coercive powers to force Ms McDonald to give an oral account of events which she had already declined to provide in writing to Mr Mancini. In my opinion this was not a legitimate forensic purpose.

I turn to the issue of the documents.
I accept there is some force in Mr Mancini’s submission that documents of the type under consideration generated within the office of the Director of Public Prosecutions for use there, do not readily fall within traditional formulations of the rule protecting documents subject to legal professional privilege. In Waterford v The Commonwealth of Australia (1986-87) 163 CLR 54, the High Court saw no reason why the privilege should not extend to communications containing legal advice, essentially passing between salaried legal officers within the public service and members of the government. The case at bar is perhaps a step removed from that situation in that the documents under consideration came into existence for use only within the office of the Director.
In R v Burton (unreported) District Court Judgment No. 1112 of 2001, His Honour Judge Muecke upheld the claim of the Director that notes of two conversations between the complainant of a rape charge and solicitors employed within the Director’s Office were privileged. The first conversation occurred for the purpose of assessing whether the prosecution should proceed and the second was part of the Director’s preparation for trial. Judge Muecke further found that the fact that there had been some disclosure consequent upon material touched on in one of the interviews – disclosure in the form of a further statement by the complainant – did not amount to a waiver of privilege over the notes.
I have already recorded that after the January adjournment of the case before me, disclosure of the new assertions was made. I have no reason to think that disclosure was less than full.
I would be prepared to find, consistent with Judge Muecke’s decision in R v Burton, that insofar as the “handwritten comments on the prosecution copy of the witness statements” or the minute of Ms McDonald to the solicitor in charge of the file amount to or contain a record of what was said to Ms McDonald by either witness, they are protected by legal professional privilege. And, I do not consider that there has been waiver of that privilege. To the extent that the documents are simply working documents, it seems to me that they should remain confidential.
There is another fairly fundamental issue to be considered.
It is by no means clear on the face of the subpoena itself that the documents sought amount to “evidentiary material” as that term is defined within the District Court Act 1991. The definition of that expression set out above was in the same terms as that contained within the Magistrates Court Act 1991 and considered by the Full Court in Carter v Hayes SM (1994) 61 SASR 451. That decision makes clear that the expression encompasses more than just admissible material. For instance, documents which provide material for cross-examination or which disclose information which may be established in some other form could qualify. Chief Justice King suggested (at 453) that the same idea was expressed in the term “legitimate forensic purpose”, as used in R v Saleam (1989) 16 NSWLR 14.
However the terms of the subpoena issued here seem to me to certainly extend to documents which would not amount to “evidentiary material”, and not clearly to encompass anything that would. Accepting Mr Rofe’s description of documents in his possession which could be within the terms of the subpoena – as I consider I am entitled to – my view is that the documents identified are not “evidentiary material”.
I consider that my decision to set aside the subpoena as being vexatious and an abuse of process is justified on both these bases.
Further Application
On the morning of Tuesday, 21 May, the day when a jury was to be empanelled, Mr Mancini made an application for a separate trial for his client, Sulaiman Khelwaty. A copy of the application was handed to me and Mr Mancini undertook to file the original.
At that point Mr Anders told me that the way in which the prosecution planned to proceed had changed and that no joint enterprise or aiding and abetting was now alleged. I heard Mr Mancini’s application on that basis. (A new Information to reflect that position was filed later in the morning. It contained two separate charges against each accused man.)
Mr Mancini’s application rested on several planks:
1.that his client was not implicated in the stabbing incident in Currie Street, nor present in the immediate vicinity, and that therefore the evidence about that incident was not admissible against him, and that the case against his client was therefore weaker than that against Habibullah Khelwaty;
2.that Sulaiman Khelwaty would have wished to call Habibullah Khelwaty as a witness in his defence and was precluded from doing so because of the fact that a joint trial was to take place. Mr Mancini referred to R v Harbach (1973) 6 SASR 427 at 435 in this connection;
3.that there would be no prejudice to the prosecution in having a separate trial.
I ruled that the trial should proceed as a joint one. Plainly the fact that the new Information was to contain no joint charges was a relevant one. (See R v Rigney (1975) 12 SASR 30 and R v Hogan (1990) 159 LSJS 297). However the fact remained that on the prosecution case the two accused men together approached the complainants and then, at the same place and within a few seconds of each other, uttered the words of threat to the complainants. On the face of it, in those circumstances it would be convenient to have a single trial.
As to the evidence of the Currie Street incident, because it was not alleged that Sulaiman Khelwaty was present, it is hard to see that the evidence carried with it any prejudice against him, except that arising by reason of his association with Habibullah. Such prejudice could, in my view, be cured by direction. In those circumstances the interests of justice dictated a joint trial.

[2002] SADC 63

13 June 2002