R v Tangi (No 5)

[2020] NSWSC 540

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tangi (No 5) [2020] NSWSC 540
Hearing dates:	20-21, 25-28 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Objection to evidence rejected.
Catchwords:	EVIDENCE – criminal proceedings – evidence of pre-recorded statement by unavailable witness previously ruled admissible – objection on the basis of s 135 and s 137 of the Evidence Act 1995 (NSW) – allegedly incomprehensible or misleading – objection rejected
Legislation Cited:	Evidence Act 1995 (NSW), ss 135, 137
Category:	Procedural and other rulings
Parties:	Regina (Crown) Abraham Ryan Tangi (Accused)
Representation:	Counsel: P Hogan (Crown) G Wendler (Accused)   Solicitors: Director of Public Prosecutors (NSW) (Crown) Universal Lawyers (Accused)
File Number(s):	2017/242644
Publication restriction:	Not to be published until the conclusion of the trial

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application for the exclusion of the electronically recorded interview of Mr Atiq-Ur-Rehman. I assume, simply because it is suggested that he speaks Urdu, that he is from Pakistan, but he could be from Kashmir or somewhere else.

2. The consequence of that statement is that English is not his first language and is not the best or most easily understood English, even when transcribed, or perhaps especially when transcribed.

3. Mr Atiq-Ur-Rehman originally had this statement recorded by police in circumstances where he had given an undertaking that he would appear and give evidence in the proceedings. He has since travelled to Pakistan, which is another factor that led me to the view that he was Pakistani, and has not returned.

4. He is, therefore, not available and the evidence is sought to be adduced under the provisions of the Evidence Act 1995 (NSW) (hereinafter “the Act”) which allow a representation to be adduced where the maker of the representation is not available in certain circumstances. That issue was dealt with earlier in these proceedings. It is not until today that the whole of the interview and its transcription has been the subject of objection.

5. That objection is taken under s 137 of the Act, and to the extent that it has work to do under s 135 of the Act. Section 137 of the Act requires the Court to exclude evidence in which the unfair prejudice to the accused or defendant in the proceedings outweighs the probative value of the evidence.

6. The reason that the objection is also taken under s 135 of the Act is that it is said, and the evidence is taken on the basis, that the poor English explanation provided by the witness leads to the evidence being misleading or confusing pursuant to the terms of s 135(b), and, if the Court were of the view that the evidence was confusing to the extent that it substantially outweighed the probative value of the evidence, then it ought to be refused under the discretion reposed on the Court under s 135 of the Act, even if it was not unfairly prejudicial to the defendant.

7. There are, of course, differences between ss 135 and 137 of the Act. Firstly, s 135 deals with a substantial outweighing; whereas s 137 only requires the danger of unfair prejudice to outweigh the probative value. Secondly, and importantly, each section refers to the danger of unfair prejudice.

8. Unfair prejudice is, of course, the use of the evidence in a way that is impermissible in the evidentiary sense, despite any direction that may be given. There are certainly some directions that could be given that would ameliorate, to some extent, the confusion or the danger that the jury would use the evidence in a way that guessed at what the witness was saying, as distinct from being derived from an understanding of what is being said on the video.

9. On one view, the submission that is being put is, in one sense, that the probative value is negligible because it is unintelligible or may be unintelligible. On the other hand, it is said that even if it were intelligible, it is not clear how the jury would understand and deal with the evidence. It seems to me that the video does a number of things.

10. I make it clear I am not being critical of the interviewing police officers or, indeed, the interpreter who was also a police officer who was available to the witness for the purpose of translating, and did indeed interpret on two or three occasions when the witness could not understand the nature of the question.

11. It seems to me that there are a number of things that are fairly clearly depicted in the interview. While I am not dealing with all of the matters that are depicted, the first is at the relevant time on the date the injuries were sustained, the witness was sitting on a chair at, or adjacent to, the windows between Archerfield House and the yard, waiting to use the phone that is next to Cell 24 for a relevant period. Secondly, the door to Cell 24 was open and the accused was standing at, or adjacent, to the door at the earlier time in that period. Thirdly, the accused gestures to the deceased to come into the room. Fourthly, the accused puts his hand behind the deceased’s back to, in a sense, usher him into the room. Fifthly, the room door is closed. Those things are clear, in my view, from the entirety of the video.

12. What is also clear, however, it that it was described on more than one occasion, that at the time that the accused and the deceased are in the room together, they are alone and that it is a short period of time. I think the witness at one stage describes the time to be approximately 20 seconds. I think there are other time estimates given.

13. Then the accused comes out of the room alone and the deceased does not come out of the room. The accused is, from what I gather from the video, pale in appearance and somewhat dishevelled. He goes to the yard and takes his shirt from inside his trousers to outside his trousers and tidies up his clothing.

14. During that time, and this may be an area where there is some confusion, at or about that time, the witness’s cellmate comes and helps the witness, who had a sore back at the time, to the phone. Whilst he is talking on the phone, a number of people come and look inside the door, that is, open it and close it again.

15. During the course of the time the accused and the deceased were in the room, at least one person was looking through the view hole in the door of the cell, and then at a later time somebody comes into the room, and it seems, puts tissues or towelling on the floor. But that last aspect is probably not clear. What is clear is that that person enters a little while afterwards. What that person does in the room is not precisely described, and then another person comes, looks at the room, and bangs on the window to obtain the guards.

16. In my view, those aspects that I have said are clear are of significant probative value. I do not consider that the video is so confusing that the jury will use it impermissibly, particularly if I direct them to the effect that they cannot guess at what he is saying. They either understand it, or they do not. However, I am of the view that the video is, or watching the video, is the only way you would understand the evidence, and reading the transcript would be significantly confusing.

17. As a consequence, it seems to me, subject to what I may hear from counsel, that my earlier indication, albeit informal, that I would allow the transcript in but not the video, should be reversed to allow the video, but not the transcript. In any event, that is a matter that we can discuss in the fullness of time. In the meantime, it seems to me the circumstances of s 137 of the Act have not been satisfied.

18. I do not consider that unfair prejudice or the danger of unfair prejudice outweighs the probative value. I have put that in the active voice rather than the passive voice, but the meaning is intended to be the same.

19. Nor do I consider that the evidence in the video is so confusing, or sufficiently confusing or misleading, such that the danger of its misuse or the danger of its unfair prejudice is outweighed by the confusing or misleading nature of the evidence. Therefore, the exercise of discretion under s 135 of the Act is probably not engaged, but, if it were engaged, I would not exercise the discretion, and the application that the evidence not be admissible is rejected.

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Decision last updated: 13 May 2020