R v Saleh Khodr

[2007] NSWDC 397

CITATION:	R v Saleh KHODR [2007] NSWDC 397
JUDGMENT DATE:	4 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I regard the evidence as not sufficiently relevant.
CATCHWORDS:	CRIMINAL LAW - jury trial - character evidence being led by accused - application to lead evidence challenging character evidence in a particular respect - accused's honesty - whether attempt by accused to contact witness affects honesty
CASES CITED:	TKWJ v The Queen (2002) 212 CLR 124
PARTIES:	Regina Saleh Khodr
FILE NUMBER(S):	2006/21/0047
COUNSEL:	Mr Calvert for the Director of Public Prosecutions Dr Webb for the accused

JUDGMENT

1. In this matter Dr Webb, who appears for the accused Saleh Khodr, has indicated in advance that he proposes to lead evidence of his client's character. That evidence is not to be evidence of his client's good character generally but of his client's good character in two particular respects. The first is that he is not a violent person and the second is that he is an honest person. The Crown does not dispute that.

2. The Crown will not be challenging the assertion that Mr Saleh is not a violent person but does propose to challenge by leading evidence - tendered before me on the voir dire - that Mr Saleh is an honest person.

3. It is acknowledged that Mr Saleh has never been convicted of any offence involving dishonesty. Because of the ruling I propose to make I do not propose to go into the niceties about the nature of this application which was the subject of the High Court's judgment in TKWJ v The Queen (2002) 212 CLR 124.

4. The Crown Prosecutor in his submissions highlighted two items of the evidence tendered on voir dire upon which effectively the other evidence depended. Those two items were both witness statements. The first was by Mr Ameer Al Jebouri and was dated 29 May 2006. Mr Al Jebouri in that statement asserted that on Friday, 26 May 2006 two men came into his shop. He had seen them before. One of them said "I come to you looking for Hussein". Mr Al Jebouri: "I know a lot of Hussein". He said: "Hussein Al Shemmari". I said: "I don't know, I know people by their first name not their family name". The man then walked out of the store, spoke with somebody waiting outside and came back in with two other men whom Mr Al Jebouri had not seen before. The man came and showed him a photograph of someone whom Mr Al Jebouri knew as Hussein. He said: "Yes, I know this guy". The man said: "Can I give you my number to give to Hussein because I want to fix everything. I don't want any problem. I want to fix everything with Hussein and my friend". I said: "Okay, I'll give you the number. Just tell him to ring me. We wanted to fix everything friendly, we don't want a problem. My friend don't want to go to the court". The number was written out and the name of the man was written down. On Monday 29 May 2006 Mr Al Jebouri saw Hussein walking along Auburn road. He called out to him and asked him to come into the store. He handed him a piece of paper with the number on it and the man's name and reported what he had been told. Hussein left the store a short time later.

5. The second statement upon which the character evidence to be led by the Crown depends is a statement of Mr Hussein El Shemmari dated 26 February 2007. In the relevant portion of that statement Mr Al Shemmari says that in May or June 2006 he went into the restaurant where his friend Ali Al Zargani was working and Ali Al Zargani said:

"Listen Saleh, he want to talk to you. He wanted to take your number because he have the court. He wanted to talk to you before he goes to the court. I said why not give him my number and I let him call me. Did you talk to him about the fight. He said yeah. He said I make mistake, my mistake. He said to us these people very bad. These people do something wrong. I didn't think about it I just came to fight".

6. Mr Al Shemmari reports that Ali Al Zargani is a friend of his and he, Mr Al Shemmari, used to see Ali Al Zargani and Saleh Khodr, the accused in this case sitting at the front of the arcade as they were friends. About a day later Mr Al Shemmari reports that the accused, in this case Saleh Khodr, rang him and said:

" Look I want to see you now and I want to talk to you about the court". Mr Al Shemmari reported: "I will see you tomorrow". Mr Khodr says: "No it's too late tomorrow because court's tomorrow". Mr Al Shemmari said: "Okay, where do you want to see me"? Mr Khodr replied: "Auburn, the coffee shop, El Amood". Mr Al Shemmari: "Okay, come there ".

Mr Al Shemmari accordingly went to the shop and phoned the accused saying "Where are you"? The accused said: "Maybe I late, about 10 or 15 minutes". Mr Al Shemmari said: "Don't worry, I am going". And he said that he did not report Saleh that day.

7. Based on the evidence which I have just referred to from both witnesses, the Crown's assertion is that that evidence demonstrates an attempt by the accused Mr Saleh Khodr to contact one of the witnesses for the prosecution in the trial against him and that that is inconsistent with an assertion of his honesty.

8. It is true that the evidence does certainly support the conclusion that Mr Saleh Khodr attempted to contact Mr Al Shemmari. However, as a matter of relevance I do not see anything of the evidence which suggests that such contact was inappropriate or improper. It was probably a questionable thing to do, perhaps even a foolish thing to do because the wrong conclusions could be drawn, but there was no discussion about the specific reason why Mr Khodr wanted to talk to Mr Al Shemmari about the court case.

9. In those circumstances I cannot see any submission which the Crown Prosecutor could make based upon that evidence which could affect an assertion by Mr Khodr that he is a person of good character in a particular respect, namely that he is honest. Accordingly I can indicate that if such evidence were tendered by the Crown as being relevant to an assertion of Mr Khodr's good character in that particular respect I will reject it as being not sufficiently relevant.

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