R v Saleh Khodr

[2007] NSWDC 393

CITATION:	R v Saleh KHODR [2007] NSWDC 393
JUDGMENT DATE:	24 July 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I will allow the witness to be called.
CATCHWORDS:	CRIMINAL LAW - jury trial - application to call expert witness - objection pursuant to s 55 of the Evidence Act 1995 - relevance
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	Regina Saleh Khodr
FILE NUMBER(S):	2006/21/0047
COUNSEL:	Mr Calvert for the Director of Public Prosecutions Dr Webb for Mr Khodr

JUDGMENT

1. Counsel for the accused Dr Webb wishes to call as a witness Mr Karakira, an expert interpreter in Arabic. He has tendered a transcript of his evidence given in a previous trial. Mr Karakira is a very highly qualified English to Arabic interpreter and is in fact chairman of the board of examiners for interpreters.

2. Mr Calvert for the crown objects to that evidence. The basis of his objection is relevance under s 55 of the Evidence Act 1995. He has two arguments. The first is that the evidence of Mr Karakira takes the evidence available to the jury no further than it has already been covered. The second basis is that Mr Karakira's evidence is at the highest theoretical and he was not present at the time that the two statements were taken.

3. In response Dr Webb says that there are two bases for the relevance of Mr Karakira's evidence. One basis is on the pronunciation of the words Abdul Kafer K-A-F-E-R, or Abdul Ghafar, G-H-A-F-A-R, which became an issue in these proceedings. The statement of an essential Crown witness, Mr Al Shemmari, records in writing the words "Abdul Kafer". Mr Al Shemmari in evidence says that he uttered the words, "Abdul Ghafar". Dr Webb has cross-examined him about the difference and raised an issue as to his credibility. The second basis for Dr Webb arguing relevance is based upon the meaning of Abdul Kafer, which he will argue is a derogatory expression in Arabic. Dr Webb would argue that the witness Mr Al Shemmari deliberately chose to name the person alleged to have assaulted him as Abdul Kafer because it was a derogatory term. Mr Calvert inquires whether that proposition was put to Mr Al Shemmari as a witness by Dr Webb, and Dr Webb is looking at the transcript to see whether he did or not.

4. Dr Webb argues he is entitled to call the witness and that neither basis of Crown's objection should be made out. He says that in so far as (which I have I have not mentioned yet) the Crown argues that the evidence proposed to be led from the expert already covered by the statement of Ms Gindy, an interpreter present when Mr Al Shemmari gave his statement on 22 April 2005, who said that she would not have made a mistake between the hard 'G' in Abdul Ghafar and the 'K' in Abdul Kafer, there is no need to call Mr Karakira because Dr Webb can make his submission to the jury on the basis of Ms Gindy's evidence which is not in dispute, and is, as the Crown says, reliable.

5. In response Dr Webb says that he is entitled to bolster his client's case by the calling of a witness who is very highly qualified, even though to say something which is admitted.

6. It is agreed Mr Karakira is a level 3 interpreter, whereas Ms Gindy is a level 2 interpreter. As I said, Mr Karakira is a chairman of the board of examiners for interpreters and would have been responsible for the test undertaken by Ms Gindy.

7. Dr Webb submits that there is involved no wastage of the Court's time because, relatively speaking, his own case is a quite short.

8. I am in agreement with Dr Webb's submission. In my opinion he is entitled to call this witness, even though it is not on an agreed issue, because he is entitled to add weight to his client's case on an issue relevant to the credibility of the principal Crown witness.

9. At this stage I regard the relevance of Mr Karakira's evidence as limited to the pronunciation question. I will reserve my opinion on the question of whether Mr Karakira can give evidence as to the meaning of Abdul Kafer until it has been shown whether or not Dr Webb put to Mr Al Shemmari that he deliberately chose a derogatory expression.

10. For those reasons I propose to allow, with the limitations I have stated, defence counsel to call Mr Karakira.

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