R v Trabolsi - [2018] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRABOLSI
[2018] SASCFC 57
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
15 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
The appellant was found guilty by a jury of three counts of theft.
The prosecution case was that the appellant tricked the victim into giving him sums of money on three separate occasions. The defence case was that the victim lied about providing the appellant with money; that in fact he had provided the money to another person, who was now deceased.
This appeal against conviction concerns the admissibility of evidence of what the appellant contends were prior inconsistent statements by a key prosecution witness.
The evidence related to an allegation by a prosecution witness that the appellant had admitted to him that he had obtained money from the victim. Defence counsel wished to adduce evidence of what were contended to be prior inconsistent statements made by the witness in a conversation in September 2015 between the witness, the appellant and the appellant’s wife. The conversation was in Arabic, and was recorded by the appellant’s wife. Arrangements were made for the witness to listen to the recording of the conversation out of court. Upon the resumption of the hearing, defence counsel put it to the prosecution witness that, during the relevant conversation, he had said “something along the lines” that he had lied about, or “made up”, the admission by the appellant. The witness did not admit saying this.
When defence counsel attempted to adduce evidence from a translator in relation to the September 2015 conversation, objection was taken. The prosecutor contended, and the trial judge accepted, that defence counsel had not laid an adequate foundation under s 28 of the Evidence Act 1929 (SA) to entitle him to adduce evidence of a prior inconsistent statement by the witness.
Consideration of the principles governing the admission of evidence of prior inconsistent statements under s 28 of the Evidence Act 1929 (SA).
Held per Doyle J (Kourakis CJ agreeing), allowing the appeal:
1.      The prior statement by the witness was relative to the subject matter of the cause (at [163]).
2.      The prior statement by the witness was reasonably open to a construction that was inconsistent with the testimony of the witness (at [186]).
3.      The circumstances and content or substance of the prior statement were sufficiently put to the witness, and he failed to distinctly admit that he had made the prior statement (at [202]).
4. In the circumstances, the preconditions to the admissibility of evidence of a prior inconsistent statement under s 28 of the Evidence Act had been complied with (at [210]).
5.      The trial judge erred in excluding evidence of the prior inconsistent statement (at [210)].
Held per Blue J (dissenting):
1.      The prior statement made by the witness was not adequately put to the witness (at [113)].
2.      This prerequisite to the admission of evidence of prior inconsistent statement not having been met, it is not necessary to consider the other prerequisites (at [114]).
3.      The appeal should be dismissed (at [115]).
Evidence Act 1929 (SA) s 28, s 29, referred to.
Nicholls v The Queen (2005) 219 CLR 196; Price v Bevan (1974) 8 SASR 81; Carbury v Measures (1904) 2 SR (NSW) 569; R v Houston (1982) 8 A Crim R 392; R v Wilson (unreported, New South Wales Court of Criminal Appeal, 1 February 1996); R v Musolino (2003) 86 SASR 37; The Queen’s Case (1820) 129 ER 976; R v T, WA (2014) 118 SASR 382; Crowley v Page (1937) 173 ER 344; Goldsmith v Sandilands (2002) 76 ALJR 1024; MJH v Western Australia (2006) 33 WAR 9; Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; Natta v Canham (1991) 32 FCR 282; Palmer v The Queen (1998) 193 CLR 1; Urban Transport Authority v Nweiser (1992) 28 NSWLR 471; Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125; R v Busby (1981) 75 Cr App R 79; Ready v Brown (1968) 118 CLR 165; Hobbs v Tinling [1929] 2 KB 1, discussed.

R v TRABOLSI
[2018] SASCFC 57
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

KOURAKIS CJ: I gratefully adopt the summaries of the evidence and identification of the issues in the respective reasons of Blue and Doyle JJ. I would allow the appeal for the reasons given by Doyle J. I make the following additional observations.
First, the condition precedent to the calling of evidence of a prior inconsistent statement pursuant to s 28 of the Evidence Act 1929 (SA) (the Evidence Act) is that the statement put by the cross-examiner is not distinctly admitted, as was plainly the case here. Mr Alhalah’s evidence was that the appellant had admitted to him taking the money which was the subject of one of the theft charges. In cross‑examination, it was put to Mr Alhalah that he had confided in the appellant that he had lied to police about the appellant making that admission. The prior statement, as put, was plainly inconsistent with Mr Alhalah’s testimony and, further, Mr Alhalah expressly denied making it.
Secondly, it is sufficient to satisfy the preconditions to calling evidence in rebuttal prescribed by s 28 of the Evidence Act to put the effect of the prior inconsistent statement. It is the substance of an inconsistency, and not merely a semantic difference, which impeaches the credibility or reliability of a witness. There is no textual basis upon which a varying degree of precision can be required depending on the particularity of the material in counsel’s brief. Evidence of a prior statement which is inconsistent with a witness’ testimony will not be excluded because of an immaterial variation between the question asked in cross-examination and the prior statement, evidence of which is proffered pursuant to s 28 of the Evidence Act. The degree to which the statement put must conform with the material in the cross-examining counsel’s brief is largely determined by the statutory requirement that the evidence adduced in rebuttal must be capable of proving that the statement put was made. Beyond that, the precise way in which the statement is put must remain a matter of professional ethics and good advocacy because the counsel’s brief will rarely be disclosed.
Thirdly, the occasion on which the prior statement was allegedly made by Mr Alhalah was clearly put. Mr Alhalah agreed in evidence that he heard the audio recording of the conversation during an adjournment, and he then proceeded to answer questions put in cross‑examination by reference to the occasion on which the recorded conversation, which he well remembered, took place.
Fourthly, on the pre-conditions being met, s 28 of the Evidence Act provides that ‘proof may be given that [the witness] did in fact make [the statement put in cross-examination].’ Proof in that context means evidence. It must be kept in mind that the proof of the making of an inconsistent statement may come from several sources and that, in some cases, only through the combination of that evidence will the prior inconsistent statement put to the witness be proved. That evidence in this case included both the evidence from the appellant’s wife, and the translation of the audio record. The appellant’s wife’s evidence was substantially the same as the statement put in cross‑examination and was therefore admissible. The appeal proceeded on the premise that her first language was Arabic and that she also spoke and understood English. The translation of words in a language other than English, having been used in a conversation and then recounted by a witness who speaks both that language and English, is admissible as the evidence of an ad‑hoc expert.[1] Of course, that witness’s command of either or both languages can be tested in cross‑examination either on a voir dire or in the trial. However, the witness is not being tested for expertise as an in-court interpreter but only as to whether they have a sufficient command of the respective languages to testify as to the meaning in English.
[1] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 188-189. The position on the admissibility of an interpretation of out of court statements in a foreign language may be contrasted with the standards expected for in-court interpreting. See ‘Recommended National Standards for Working with Interpreters in Courts and Tribunals’, published by the Judicial Council on Cultural Diversity, 2017, see website: >
The ambiguity and conflicting evidence in this case is over the English translation of the Arabic words heard in the audio recording. However, the translated words are just capable of bearing the meaning put to Mr Alhalah in cross‑examination, and are therefore evidence that a statement to that effect was made.[2] More importantly, the evidence of the independent translation is admissible in that it proves that there was a conversation in which Mr Alhalah’s statement to the police that the appellant had made an admission was discussed. To that extent, the evidence of the audio record, through a translation, is capable of supporting the appellant’s wife’s evidence that there was such a conversation and is therefore also relevant to, and admissible to prove, the making of the prior inconsistent statement. Moreover, the translation provides a context against which to evaluate the testimony of the appellant’s wife as to the meaning of the words used and is admissible for that purpose.
[2] R v Wilson, unreported decision of the Court of Criminal Appeal of New South Wales, 1 February 1996, 60281 of 1995.
Be that as it may, I agree with the admonitions of Blue J on the care needed when taking evidence in English of a conversation in another language. Moreover, if the precepts set out by Blue J were followed in this case, a paradoxical result would have been revealed. If the conversation had been put by counsel using Arabic words, or the tape played, Mr Alhalah would probably have admitted that he used the Arabic words recorded. No evidence in rebuttal on the Arabic words used would be necessary or admissible. However, that would have been of no assistance to the jury. The real dispute was over the meaning of those words in English. On that question, Mr Alhalah was entitled to have the substance of the meaning contended for by the appellant put to him. It was and he denied it. The appellant should not be precluded from adducing evidence that the words had the meaning for which he contended merely because Mr Alhalah had admitted using the Arabic words. Even though the controversy, in a case of a prior statement made in a language other than English, is one over the meaning of the foreign words, that dispute should be treated in the same way as a dispute over whether a prior inconsistent statement in the English language was made or not. It is analogous to a case in which, for example, the words spoken are admitted, but a gesture which may give them a different meaning is denied.
It was wrong, therefore, to preclude the appellant from calling any evidence of the meaning of the Arabic words used on the ground that the prior inconsistent statement was not put to Mr Alhalah with sufficient precision.
BLUE J: This is an appeal against conviction.
The appellant, Kassem Trabolsi, was charged in the District Court with three counts of theft of money from Ali Ahmed.[3] The prosecution case was that in May 2013 the appellant induced Mr Ahmed to pay to him $7,000 by pretending that it was to buy a half share with him in a car to be sold for a profit (count 1); in June 2013 the appellant induced Mr Ahmed to pay to him $33,000 by pretending that it (together with $9,000 said to be the proceeds of the car that had been sold) was to buy a half share with him in a taxi (count 2); and in July 2013 the appellant induced Mr Ahmed to pay to him $2,500 by pretending that it was to cancel their taxi venture contract (count 3).
[3] Criminal Law Consolidation Act 1935 (SA) section 134.
The appellant’s case was that he did not enter into any of the transactions or receive any of the money. His case was that it was another person, Ameen Al Wasare, who entered into a taxi business transaction with Mr Ahmed and received the money from him. Al Wasare died in August 2013.
The prosecution called Basel Alhalah as a witness. He gave evidence amongst other things that in 2013 the appellant admitted to him that he had taken about $30,000 from Mr Ahmed to buy a taxi business and said that he was going to pay it back.
Mr Alhalah had a conversation in Arabic with the appellant in 2015, which was secretly recorded by the appellant and his wife. At the end of the first day on which he gave evidence, the recording (which was 17 minutes long) was played by the appellant’s counsel, without interruption or discussion, to Mr Alhalah. On the following morning, it was put to Mr Alhalah in cross-examination that during the conversation he told the appellant ‘I made it up to get him in trouble’; ‘I lied and I made up the story’ and ‘at that time I hated him and wanted to get him into trouble’ and he had told the appellant “about Ali telling you a different story and telling you about Ameen.”
When the prosecution called a translator, Mohammed Hamoud, to give expert evidence for another purpose, the appellant’s counsel sought to adduce evidence from him translating Arabic words in certain passages of the recording into English. The prosecutor objected on the ground that the appellant had not complied with the prerequisites for admission of the evidence under section 28 of the Evidence Act 1929 (SA) (the Act). The trial Judge ruled that the appellant had not complied with the prerequisites.
The appellant appeals on the ground that the Judge’s ruling was erroneous.
Background
The appellant emigrated from Lebanon to Australia in 2004. He speaks Lebanese Arabic as his native language and English as a second language. He worked at the Yiros House in Rundle Street between 2005 and July 2013, since 2009 as manager.
Mr Ahmed is a Libyan national who came to Australia in 2010 on a student visa. He speaks Libyan Arabic as his native language and English as a second language. In 2013 he was undertaking a Masters Degree in Mechanical Engineering at the University of South Australia. He worked part-time as a cleaner at the Yiros House between December 2012 and June 2013.
Medhat El Behidi worked casually at the Yiros House from 2007. Mr Alhalah worked at the Yiros House between at least 2012 and 2013 and also at the convenience store next door. Khalil Mohsem worked at the Yiros House between 2012 and 2013. Mr Al Wasare worked at the Yiros House between 2012 and 2013.
Mr Ahmed gave evidence that at the end of May 2013 he expressed interest in going into a business venture with the appellant after he observed people giving him money in the shop. The appellant told him that they could buy a car in Sydney for $14,000 and sell it for a profit of $2,000 each. He gave to the appellant $7,000 cash for that purpose, which he sourced out of $9,000 cash from Wanis Amliyeh in repayment of a loan earlier made to him. Two days later the appellant told him that he had purchased a car with the money, showed him a photo on his mobile phone of a yellow utility, and said that he had sold it for a profit of $2,000 each. The appellant said that if Mr Ahmed wanted to continue, they would make the business bigger and if he wanted to stop he would give him the cash. Mr Ahmed said to keep the money and they would do another venture.
Mr Ahmed gave evidence that at the beginning of June 2013 the appellant told him that the owner of a taxi was about to leave Australia and they could buy it very cheaply if they each contributed $42,000. Mr Ahmed told the appellant that he would get the money from his brother in Tunisia (so that the appellant would not know that he had the money in his bank account). Mr Ahmed withdrew $27,000 cash from his Commonwealth Bank account on 3 June which he put together with $3,000 cash he had in his room and gave $30,000 to the appellant. On 5 June he withdrew $3,000 cash from his Commonwealth Bank account and gave it to the appellant. Together with the $9,000 already held by the appellant, this involved a contribution by Mr Ahmed of $42,000.
Mr Ahmed gave evidence that a week or a week and a half later he asked the appellant for a paper to evidence his investment, the appellant promised to give him a contract in three days, in three days’ time the appellant did not give him any paper but promised to do so in a further three days, and so on. Mr Ahmed nagged the appellant and finally asked for his money back. The appellant said that he would repay him. The appellant said that to cancel the contract between them would cost Mr Ahmed $2,500.
Mr Ahmed gave evidence that at the beginning of July 2013 he asked Mr Amliyeh to lend to him $2,500 to pay to the appellant. Mr Amliyeh gave him $2,500 cash for this purpose and suggested that he record his conversation with the appellant to obtain an acknowledgement that the appellant owed him the money. Mr Amliyeh drove him to the Yiros House and waited in the car while he went into the shop. Mr Ahmed gave to the appellant the $2,500 cash. The appellant acknowledged during the conversation that he owed money to Mr Ahmed. Mr Ahmed recorded the conversation (the Yiros House conversation) on Mr Amliyeh’s mobile phone. Mr Amliyeh emailed to Mr Ahmed the audio file of the conversation (the Yiros House recording).
The appellant gave evidence denying that the alleged conversations or transactions occurred at all. He gave evidence that Mr Ahmed told him that he had given $40,000 to Mr Al Wasare for business. He asked Mr Al Wasare if Mr Ahmed had given him $40,000 and he confirmed it. He agreed on Mr Ahmed’s request to help him get the money back from Mr Al Wasare and acted as a middleman for this purpose.
At the end of July 2013 Mr Ahmed reported the appellant’s conduct to the police. He gave to the police the Yiros House recording.
In August 2013 Mr Al Wasare was murdered by an Asian man unrelated to anyone working at the Yiros House.
In September 2013 Detective Brevet Sergeant Nikolic was appointed detective in charge of the investigation initiated by Mr Ahmed’s report. He asked Mr Ahmed to give him copies of his SMS communications with the appellant (the SMS messages).
In February 2014, the police spoke to the appellant. They told him of the allegations made by Mr Ahmed. He said:
Man, I only know this man, his work with my shop. Cleaner. That's only as I know this man. Never I have business between this man and never came talk to him about any money.
The police arrested him and charged him with theft.
In May 2014 Mr Hamoud translated into English the Yiros House recording and the SMS messages. He signed a witness statement referring to and attaching them. The appellant received the witness statement and attachments as part of prosecution disclosure.
The prosecution adduced various items of evidence at trial to corroborate Mr Ahmed’s evidence. First his Commonwealth bank statement showing a cash withdrawal of $9,000 in February 2013 was tendered and Mr Amliyeh gave evidence that he borrowed $9,000 from Mr Ahmed. Mr Amliyeh also gave evidence that he repaid the $9,000 in cash to Mr Ahmed.

Secondly Mr Ahmed’s Commonwealth bank statements showing cash withdrawals of $27,000 on 3 June and $3,000 on 5 June 2013 were tendered.
Thirdly the SMS messages passing between Mr Ahmed and the appellant in English were tendered. They included the following:
2 June Mr Ahmed:       Ok, my brother in Tunisia now, he will send money on Monday in Saha Allah.
2 June Appellant:        Ok Habib.
5 June Mr Ahmed:       I want to see you to give you the $3000. When will I see you?
5 June Appellant:        I see u habib in city at 7 tonight ok.
It was put to Mr Ahmed in cross-examination that the reference to $3,000 was to an amount that Mr Al Wasare had said Mr Ahmed would have to pay him to cancel the contract for the taxi business. Mr Ahmed denied that it was Mr Al Wasare and not the appellant with whom he had the business dealings the subject of the charges. The appellant gave evidence that Mr Ahmed had told him a week before 5 June that he was not happy, wanted to cancel the contract with Mr Al Wasare and Mr Al Wasare required him to pay $3,000 to cancel the contract. The appellant gave evidence that the reference to $3,000 was to this amount which Mr Ahmed wanted to give to him to pass on to Mr Al Wasare.
The appellant’s evidence to this effect was ostensibly inconsistent with his evidence that he was told by Mr Ahmed happily that he had given $40,000 to Mr Al Wasare coupled with the Commonwealth Bank statements showing withdrawals of $27,000 and $3,000 on 2 and 5 June 2013 and the SMS message sent by Mr Ahmed on 20 June (referred to below) showing that Mr Ahmed was still waiting for the paper on 20 June and had not yet progressed to wanting his money back.
SMS messages passing between Mr Ahmed and the appellant in Arabic were also tendered. The police arranged for them to be translated into English by Mr Hamoud. The English translation included the following passages:
18 June Mr Ahmed:     Good morning, Qassem. It’s necessary we meet today about the paper. I can’t concentrate on my studies because of the pressure by my family. Thanks habibi.
18 June Appellant:      Ali, I’ll see you tomorrow for sure. I can’t today. By Allah, I’ll bring the paper with me tomorrow. My [unclear word] and the hour I meet you Ali, habibi.
19 June Mr Ahmed:     Qassem, I’m emotionally unwell my brother. I need you to talk to me after you wake up.
19 June Mr Ahmed:     Qassem, when will I see you today?
20 June Mr Ahmed:     Qassem, my family are waiting for me to show them the paper regarding the 40,000. Brother, I’m tired of thinking. They contact me everyday. What will I tell them today?
20 June Mr Ahmed:     Brother Qassem, what time shall I come to you at the shop?
25 June Mr Ahmed:     Qassem, how are you? What happened with the money matter? Today is Tuesday and there is nothing yet. I contacted you yesterday but you didn’t answer. By Allah, if you are awake, answer me.
The appellant sought to explain the messages by giving evidence that he was going to go with Mr Al Wasare to see Mr Al Wasare’s lawyer to get the paper to evidence the contract and was acting as an intermediary between Mr Ahmed and Mr Al Wasare.
The prosecution relied on SMS messages passing directly between Mr Ahmed and Mr Al Wasare between 29 May and 24 July 2013 which were tendered to show that they were in direct communication and had no need of an intermediary and that their tone was very friendly in contrast to the tone of the messages from Mr Ahmed to the appellant. The prosecution also relied on the fact that there was no mention of Mr Al Wasare in any of the SMS messages passing between Mr Ahmed and the appellant.
Fourthly Mr Amliyeh gave evidence that he was asked by Mr Ahmed to lend to him $2,500. He gave him $2,500 cash and drove him to the Yiros House. He gave to Mr Ahmed his mobile phone to record the conversation with the appellant. When Mr Ahmed returned to the car, he saw the appellant standing near the front door of the shop. Mr Ahmed returned his mobile phone to him. He later sent a copy of the Yiros House recording to Mr Ahmed.
As noted above, the Yiros House recording was given by Mr Ahmed to the police in July 2013 and in due course was translated into English by Mr Hamoud. The English translation included the following passages:
Appellant:… How much altogether did you give me[4], Ali?
[4] The appellant gave evidence that he said “him” and not “me”. The translator accepted that it was too difficult to make out whether the word was “me” or “him”.
Mr Ahmed:… altogether, forty, forty thousand.
Appellant:How is that?
Mr Ahmed: Think about it. I gave you forty thousand. I gave you the first payment thirty-seven.
Appellant:No, thirty
Mr Ahmed:How much has it become?
Appellant:Before that you gave me some with the car. The car value you are talking about?
Mr Ahmed: No, I gave you thirty-seven.
Appellant:No … to me, thirty thousand, Ali,
Mr Ahmed:Thirty thousand?
Appellant:Yes.
Mr Ahmed:… to ten.
Appellant:You gave me, no, you gave me three thousand.
Mr Ahmed:What?
Appellant:No, you gave me seven thousand.
Mr Ahmed:Oh, seven thousand for the car.
Appellant:Yes.
Mr Ahmed:Yeah.
Appellant:And thirty.
Mr Ahmed:Thirty? That means they are thirty-seven.
Appellant:Yes.
MrAhmed:Remains … three thousand. These remain.
Appellant:I tell you … thirty-seven, … seven thousand for the car.
Mr Ahmed:Yes, that means altogether, altogether it’s forty thousand.
Appellant:Altogether, altogether forty.
Mr Ahmed:Yes.
Appellant:Now, you’ll get thirty-seven. Two thousand for you … the man takes six thousand. Two thousand for you, thirty-nine. That means altogether you lose one thousand dollars …
Mr Ahmed:OK, no problem. I’ll make do, even if it’s from myself, the one thousand.
The appellant sought to explain the messages by giving evidence that he had earlier that day promised to Mr Ahmed that he would help him get his money back from Mr Al Wasare and he then talked as if the money was owing by himself to Mr Ahmed. This was denied by Mr Ahmed.[5]
[5] The cross-examination of Mr Ahmed on this topic is summarised at [51]-[52] below.
Fifthly Mr El Behidi gave evidence that he lent $2,000 to the appellant. Mr El Behidi gave evidence that he sold his car to the appellant for $3,500 on credit. The appellant agreed that he bought the car for $3,500 but said that he paid the price in cash at the time, which Mr El Behidi denied. Mr El Behidi gave evidence that he lent $7,000 to the appellant to send to Lebanon to pay for an urgent operation for his mother. The appellant agreed that $7,000 was borrowed but said that the money was for his wife to visit Egypt, which Mr El Behidi denied. Mr El Behidi gave evidence that shortly afterwards the appellant asked him for $5,000 because his parents’ landlord in Lebanon was kicking them out, which the appellant denied. Mr Behidi gave evidence that he refused the request for the further $5,000. Mr El Behidi gave evidence that the appellant repaid $5,000 in a lump sum; three instalments of $1,000 each per month; and $4,500 in March 2014 after he issued a formal court notice.
Sixthly Mr Mohsem gave evidence that he gave a total of nearly $9,000 in 2013 to the appellant to save for them to purchase a suburban yiros shop and the appellant had made some repayments and still owed him $7,000. The appellant gave evidence denying any such transactions.
In cross-examination it was put to Mr Mohsem that he signed a statement prepared by the appellant’s lawyer (in October 2014) in which he said that Mr Ahmed asked him to come to court, which Mr Mohsem admitted. It was further put that the statement said that Mr Ahmed offered to pay him $5,000 but Mr Mohsem denied that this was true. It is arguable that Mr Moshem also denied that the reference to the $5,000 was in the statement (although the evidence is unclear on this point, especially given that Mr Mohsem gave evidence by video link from New South Wales). The appellant relied on the statement to impeach Mr Mohsem’s credit.
However, Mr Mohsem’s evidence about his transactions with the appellant was corroborated by Mr El Behidi. He gave evidence that he saw the appellant giving Mr Mohsem amounts of $20 and $50. He gave evidence that he was present with Mr Mohsem during a speakerphone conversation with the appellant in which Mr Mohsem complained that the appellant was only paying him back the $9,000 in $20s and $50s and the appellant asked for more time in which to pay Mr Mohsem back. The appellant denied this phone conversation.
Seventhly Mr Alhalah gave evidence that in early 2013 the appellant borrowed $4,000 from a collective pot comprising contributions by Mr Alhalah’s family. He made $100 weekly contributions over two or three months and then stopped after he ceased working at the Yiros House (in July 2013), at which point he still owed $3,000. The appellant agreed that these transactions took place.
Eighthly Mr Alhalah gave evidence that one day in 2013 Mr Ahmed came to his convenience store upset and spoke to him. Mr Alhalah then asked the appellant whether he took money, about $30,000, from Mr Ahmed. The appellant replied yes. Mr Alhalah asked him why. The appellant said that it was for business, buying a taxi. Mr Alhalah asked him if he was going to pay it back. The appellant said yes. The appellant denied this conversation (the convenience store conversation).
In 2014 Mr Alhalah gave a statement to the police about the convenience store conversation. The appellant learnt of the statement, offered to transfer a car to Mr Alhalah in part payment of the $3,000 debt owing to Mr Alhalah and transferred it to a member of his family, although it was later returned. Mr Alhalah then went to the police station with the appellant’s wife and said that he wanted to withdraw the statement that he had previously given to the police.
Mr Alhalah gave evidence that he wanted to withdraw his statement because after he gave the statement he was told by a fellow worker at the Yiros House that he received a phone call in which a person said “Tell Basel he's dead”.
In 2015 Mr Alhalah met with the appellant in the presence of his wife at Gepps Cross. The appellant gave him $500 in part repayment of his debt. There was a conversation between Mr Alhalah and the appellant in Arabic (the Gepps Cross conversation). The conversation was secretly recorded by the appellant’s wife (the Gepps Cross recording).
The trial
The trial proceeded over five days in June-July 2017.
Mr Ahmed gave evidence in English, with an interpreter available in case of need. The Yiros House recording was tendered and became exhibit P2. The translation thereof by Mr Hamoud was marked for identification as MFI P3 and later received as an exhibit when Mr Hamoud gave evidence.
Mr Ahmed was cross-examined at length by the appellant’s counsel. It was put to him that the appellant told him in Arabic “Take it from this moustache” and “Pretend it's in your pocket”. The appellant’s counsel put to Mr Ahmed what was allegedly said in Arabic, what the alleged translation into English was and what the intended and understood meaning of the words used in context was:
Q.And you can also promise something by touching your moustache and saying 'Take it from this moustache'.
A.Yes.
Q.And is the phrase something like 'He-da min hal schwerib', something like that.
…
Q.Is that something.
A.Yes, it is.
Q.What does that mean.
A.'This from this moustache'.
Q.You can say something like that to make a promise, can't you.
A.Yes.
Q.And that's what Kassem said to you.
A.Never.
Q.I will try another phrase … 'Err teh bare mus re yeh tak bijayb tak'.
A.Yes.
Q.This means 'Pretend it's in your pocket', doesn't it.
A.It means 'Make sure the money in your pocket'.
Q.And this is something you can say in Arabic.
A.Yes.
Q.Kassem said those two phrases to you, didn't he.
A.No.
Q.You understood he was promising to help you get your money back.
A.No.
Mr Ahmed was cross-examined on what was said during the Yiros House conversation, what words could be heard on the recording, translation of those words into English and what they meant in context. The cross-examination was undertaken by reference to the recording P2 and the English translation MFI P3. For example, the cross examination included this passage:
Q.Now, after that at point 42 you say 'Will they send me?'.
A.Yes.
Q.For that you use the phrase 'Bin a sooly', do you agree you said that. When you're saying 'Will they send me?', the words you used were 'Bin a sooly'.
A.Yes.
Q.That means 'they', is that right.
A.Yes.
Q.Can I suggest this: when you said 'they' you were referring to Ameen and his lawyer.
A.No.
and this passage:
Q.I want you to listen very carefully to the beginning. You'll hear yourself saying 'kilon, kilon', that means 'altogether', doesn't it, 'kilon', like saying 'altogether', 'kilon'.
A.'Call', you mean 'call'?
Q.Maybe, you listen, it sounds like that, you say that word twice but before that you say the word 'Aetah tu yay hun', does that sound right.
A.No.
Q.Can we play it, please, from four minutes, 15.
AUDIO PLAYED
AUDIO CONCLUDED
XXN
Q.Did you hear yourself say that.
A.Yes.
Q.You said 'Aetah tu yay hun'.
A.I say 'Ana', means 'me'.
Q.You said the phrase 'Aetah tu', do you agree with that.
A.Yes.
Q.Now, that means 'gave him', doesn't it.
A.That means 'I gave'. I didn't refer to him.
Q.Well, there are two ways you can say that, can't you, there's 'Aetah tu' and 'Aetah tuk', do you agree.
A.Yes.
Q.'Aetah tuk' means 'I gave you', doesn't it.
A.Yes.
Q.'Aetah tu' means 'I gave him', doesn't it, in Arabic.
A.Yes.
Q.That is what you said, isn't it.
A.No, I didn't refer to any third party person.
Mr Alhalah, and all other Arabic speaking witnesses at the trial, gave evidence in English, with an interpreter available in case of need. Mr Alhalah gave evidence about his transactions with the appellant summarised at [44]-[48] above and the convenience store conversation summarised at [45] above. During cross-examination it was put to him that the convenience store conversation did not occur. Mr Alhalah disagreed. It was put that during the Gepps Cross conversation Mr Alhalah said that he had been angry at the appellant for not answering him and that was why he had not told the truth (to the police). Mr Alhalah said that he had told the truth.
At that point the appellant’s counsel said that he wanted to show Mr Alhalah a recording and suggested that it be played to him in the absence of the jury. The Judge discharged the jury as it was the end of the day. In the absence of the jury, the prosecutor said that he knew nothing about the recording but the preferable course would have been for it to have been transcribed so that it could be dealt with in the conventional manner. The Gepps Cross recording was then played outside the courtroom in the presence of Mr Alhalah, an interpreter, both counsel and the appellant. The recording was about 17 minutes long. It was played uninterrupted once only. No one (including the interpreter) said anything.
The following morning, counsel for the appellant asked Mr Alhalah about the conversation the subject of the Gepps Cross recording. He put to Mr Alhalah three statements that Mr Alhalah allegedly made to the appellant. The questions and answers are set out in the following table:

Appellant’s counsel Mr Alhalah

1 during the recording, halfway through it, you say something along these lines, don’t you:
‘I made it up to get him in trouble’.
No, not that way …I said to him
‘If I come here, I won’t say what in the statement’.

2 Later in the recording you said something along those lines, didn’t you,
‘I lied and I made up the story’
You said
‘at that time I hated him and wanted to get him into trouble’, meaning Kassem.
No, no, not that way. No, I didn’t say that.
I wanted to get him into trouble but I didn’t make this up.

3 Towards the end of the recording you told Kassem about Ali telling you a different story and telling you about Ameen, didn’t you. Nothing about Ameen but Ali – I have an argument with Ali because he knew I wanted to withdraw my statement, he wasn’t happy, and we had a big argument because he was so annoyed that I wanted to withdraw my statement, for safety reason, by the way.

The Gepps Cross recording was marked for identification as MFI D9. In stark contrast to the cross-examination of Mr Ahmed, no words in Arabic were put to Mr Alhalah, no specific words as opposed to words to general effect were put to Mr Alhalah and no distinction was drawn between words used and their connotation.
Evidence was given by Mr Mohsem, Mr Amliyeh and Mr El Behidi.
Mr Hamoud gave evidence in chief verifying his translations of the Yiros House conversation and the SMS messages, which were tendered. Mr Hamoud said that there were parts of the Yiros House conversation where he could not make out the words (designated in the translation as ellipses).
Mr Hamoud was questioned at length by the appellant’s counsel about the words that were spoken in Arabic and their translation into English. The recording was played to him sometimes more than once and additional words in Arabic were put to him that it was suggested Mr Hamoud had not picked up when he did his translation. Sometimes he agreed and other times he did not. Certain Arabic words or phrases heard on the recording were put to him and it was suggested that they had particular or different meanings. Sometimes he agreed and other times he said that he was not familiar with the connotation put.
The appellant’s counsel then said that he proposed to ask Mr Hamoud to listen to some passages from MFI D9, being the recording of the Gepps Cross conversation. The prosecutor foreshadowed an objection, which the Judge then heard in the absence of the jury. The appellant’s counsel said:
I put certain propositions to Mr Alhalah about what he said when he met up with the accused and his wife at Gepps Cross and, as I recall his evidence, he denied what was put to him about what he said and it was quite specific propositions… the idea of this cross-examination of the witness is to ask him as an independent translator to tell us what is said and what he understands to be said at three particular passages that I took Mr Alhalah to.
The prosecutor objected because of the vagueness of what had been put by the appellant’s counsel to Mr Alhalah. The prosecutor said:
With respect to my friend, it is difficult because the question is asked whether something was said ‘along these lines’, and the witness responds in kind by saying ‘I didn’t say it in that way’. So there is a discussion about the import or the effect of what is being said rather than the words, and that is the difficulty, because if he was specifically asked whether ‘You said these words’, or ‘words which in Arabic mean these words in English’, and he was not to distinctly admit that, then of course there could be under the Evidence Act objective evidence that those words were spoken.
The Judge upheld the objection and observed that the appellant’s counsel could have gone about it in a different way. The appellant’s counsel observed that “the recording will have to be authenticated by a different witness… I suppose we will cross that bridge when we come to it.” The appellant’s counsel did not produce any translation of the recording. The appellant’s counsel did not ask for Mr Alhalah to be re-called for further cross-examination.
Detective Brevet Sergeant Nikolic gave brief evidence of his investigation and in particular his dealings with Mr Ahmed.

The appellant gave evidence. During his evidence in chief he said that he had listened to the Yiros House recording (in cross-examination he said that he had listened to it ten or 15 times). He gave evidence by reference to the recording P2 and the English translation P3 about what was said in Arabic and/or in English in certain passages. For example he gave the following evidence in chief:
Q.Below that it says that you said 'Thanks be to Allah. Did it go all right?'.
A.Yes.
Q.Can you remember the Arabic phrase you said
A.He ask me - he want to talk in Arabic. He say 'How are you?' in Arabic.
Q.No 'Did it go all right?'. What is the particular phrase you said.
A.In Arabic I say, like, 'Shw shahal'.
Q.And what does that mean.
A.'How you go?'.
The appellant’s wife Noura gave evidence. She said that she only met Mr Ahmed once and was not present at any relevant conversations with him. Her evidence was principally about dealings with Mr Mohsem, Mr El Behidi and Mr Alhalah.
The jury (by majority verdict) found the appellant guilty of all three counts.
Contentions on appeal
For the purpose of the appellant’s application for permission to appeal, the appellant in November 2017 obtained a translation of the Gepps Cross recording MFI D9 (the November Gepps Cross translation). There are occasions shown in the translation in which there was extraneous noise and the translator could not make out the words used. One of the passages where the translator could not make out words was at about the seven minute 30 second mark.
The appellant contends that the Judge erred in not allowing evidence to be adduced about the content of the audio recording MFI D9 on the ground that he had not laid a sufficient foundation under section 28 of the Act.
The appellant contends that the prerequisites before proof can be given of a former statement made by a witness under section 28 were met. The issues on appeal are whether it was put to Mr Alhalah that he had made the statements of which it was sought to adduce contrary evidence, the associated question whether Mr Alhalah did not distinctly admit that he made the statements, whether the statements were inconsistent with Mr Alhalah’s testimony, and whether the statements were relative to the subject matter of the cause.
The appellant contends that it was not necessary for him to put to Mr Alhalah the Arabic words contained on the recording or the English translation. It was sufficient merely to put the general effect of what he contended was intended and understood by the parties during the conversation.
The Director contends that the specificity with which a statement must be put to meet this prerequisite depends on the proof proposed to be given to contradict the witness. When that proof is precise (such as when there is a record or recording of the words used), the precise words must be put. When that proof is the best recollection of a party to the conversation proposed to be called to contradict the witness, the words used to the best recollection of that witness must be put as opposed to a particular interpretation or construction of the words used.
The Director contends that, as the words contained in the recording were not put to Mr Alhalah, the prerequisite that he did not distinctly admit the statement was consequentially not met. The appellant takes issue with the premise of this contention.
The appellant contends that the statements contained on the recording were inconsistent with Mr Alhalah’s testimony. The Director takes issue with this contention.
The appellant contends that the statements contained in the recording were relative to the subject matter of the cause. The Director takes issue with this contention.
After the hearing of the appeal, the appellant waived privilege in a translation which his wife had made before trial of the Gepps Cross recording.
The vagaries of language
Language uses words to attempt to communicate concepts from one person to another. Language involves a greater or lesser degree of imprecision and inaccuracy depending, amongst other things, on the concepts sought to be communicated, the words used, the circumstances and context in which the communication takes place, the speaker and the listener. There is also an important distinction to be drawn between the literal words used and the message conveyed (or intended or understood to be conveyed) by those words. Language is notoriously imperfect as a means of communication.
Confining attention initially to the literal words used, within a single language (such as English) a given word often has two or more different meanings. A given word usually has various shades of meaning, especially when designating abstract concepts. Different people use the same word to have different meanings. Persons with different backgrounds and from different countries or regions speaking the same basic language use and understand words in different ways. For example, Mr Hamoud gave evidence that persons from Lebanon (such as the appellant) and Libya (such as Mr Ahmed) both speak Arabic but some words and sounds are different.
The literal meaning of a word or words intended by the speaker can be quite different to the literal meaning understood by the listener. The understanding of a listener of the literal meaning of a word or words will vary depending on the listener’s background, experience, the context and the circumstances.
An extra dimension is added when it is sought to translate words from one language into another language. Sometimes there is no equivalent in the second language of a word or words used in the first language. Often the literal meaning of a word or words in the first language is not identical to the literal meaning of a word or words into which it might be translated in the second language but there is a degree of overlap. Often there will be alternative words in the second language into which a word or words in the first language might be translated and it is necessary for the translator to make a judgment, often between two imperfect alternatives. The meaning of a word or words in one language may be affected by cultural aspects which do not apply in another language. It is partly for these reasons that it is recognised that translating a passage from one language into another involves evidence of opinion and may be the subject of evidence given by appropriately qualified experts.
As noted above, there is an important distinction between the literal words used and the message or intended or understood to be conveyed by those words. Two different listeners may hear the same words which have the same literal meaning but may understand that quite different messages are conveyed. The speaker and listener may speak and hear the same words which have the same literal meaning but the message intended by the speaker to be conveyed may be quite different to the message understood by the listener to be conveyed. Even though the construction of contractual and statutory provisions is objective, countless cases on disputed construction exemplify the multiplicity of alternative interpretations of the same word or words.
When the words used during a conversation are relevant in a case (whether civil or criminal), witnesses who were parties to the conversation are required to the best of their ability to give evidence of the words used. Thus, if the witness recalls the precise words used (whether from memory or after refreshing memory from a contemporaneous record), the witness must give evidence of the precise words used and not merely of the witness’s own paraphrase thereof. If the purpose of adducing the evidence is to prove what was said (as opposed to the witness’s understanding of what was said which may be relevant for example to prove that the witness relied on a misrepresentation in taking certain action in a misleading conduct case), the witness is not entitled to give the witness’s understanding or interpretation of what was conveyed during the discussion as opposed to what was actually said. The law draws a distinction between words used on the one hand and the message conveyed by a conversation on the other hand. The former is a matter for the witness to give evidence of; the latter is a matter for the finder of fact. If a witness simply gave evidence of his or her own interpretation of what someone said, the witness would be usurping the function of the finder of fact.
If a witness no longer recalls the precise words used, the witness is allowed to give an account of the conversation to the best of the witness’s recollection. This reflects an acceptance that, other than in exceptional circumstances in which a witness has special reason to recall the precise words used or an exceptional memory, generally a witness’s recollection of precise words deteriorates over time and the witness will often only recall the substance of what was said rather than the precise words. Even in this situation, if the purpose of adducing the evidence is to prove what was said, the witness is required to be as accurate and precise as possible as to what was said according to the limits of the witness’s recollection. Moreover the witness is not entitled to give evidence of the message that the witness understood was being conveyed as opposed to the literal meaning of the words used (albeit the witness does not recall the precise words used) to the best of the witness’s recollection.
Section 28 of the Evidence Act
It is a basic rule of fairness at common law that, if a party intends to contradict or otherwise impugn the evidence of an opponent’s witness, that party must put that party’s own version of the relevant facts to that witness for that witness’s response. Thus, in Browne v Dunn[6] Lord Herschel LC (with whom Lord Halsbury, Lord Morris and Lord Bowen agreed) said:
Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made… My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of the case, but is essential to fair play and fair dealing with witnesses.[7]
[6] (1897) 6 R 67.
[7] At 70-71.
The “rule in Browne v Dunn” applies equally to party witnesses and other witnesses.[8] The rule is designed to ensure fairness of the administration of justice.[9] This has three dimensions. In no particular order, first it is designed to ensure fairness to a witness and especially one who is not a party and has no right to object to his or her credit or evidence being impugned.[10] Secondly it is designed to ensure procedural fairness to a party calling a witness.[11] Thirdly it is designed to avoid the difficulty that would otherwise be caused to the tribunal of fact in making findings about a fact the subject of evidence when the opposing versions have not been put to the respective witnesses.[12]
[8] Bale v Mills [2011) NSWCA 226, (2011) 81 NSWLR 498 at [66] per Alsop P, Giles JA and Tobias AJA.
[9] Bale v Mills (2011) 81 NSWLR 498 at [63] per Allsop P, Giles JA and Tobias AJA.
[10] Bale v Mills (2011) 81 NSWLR 498 at [66] per Allsop P, Giles JA and Tobias AJA.
[11] Bale v Mills (2011) 81 NSWLR 498 at [63]-[66] per Allsop P, Giles JA and Tobias AJA.
[12] Reid v Kerr (1974) 9 SASR 367 at 373-374 per Wells J.
There is a common law analogue, or particular application,[13] of the rule in Browne v Dunn which applies to adducing proof of a previous statement made by a witness inconsistent with the witness’s testimony.[14] This analogue serves the same three purposes as the rule in Browne v Dunn of ensuring fairness to the witness, fairness to the party calling the witness and to permit the tribunal of fact to make findings having heard both sides of the potential evidence about the matter in dispute. In The Queen’s Case[15] Abbott CJ (delivering the opinion of the King Bench Judges to the House of Lords) said:
Now the usual practice of the courts below, and a practice, to which we are not aware of any exception, is this; if it be intended to bring the credit of a witness into question by proof of anything that he may have said or declared, touching the cause, the witness is first asked, upon cross-examination, whether or not he has said or declared, that which is intended to be proved. If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary; and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular circumstances of the transaction may happen to furnish; and as the whole matter is brought before the court at once, which, in our opinion, is the most committing course. If the witness denies the words or declarations imputed to him, the adverse party has an opportunity, afterwards, of contending, that the matter of the speech or declaration was such, that he is not to be bound by the answer of the witness, but may contradict and falsify; and, if it be found to be such, his proof in contradiction will be received at the proper season.[16]
[13] See Nicholls v The Queen (2005) 219 CLR 196 at [90] per McHugh J.
[14] The Queen’s Case (1820) 2 Br and B 284 at 313 (129 ER 976 at 988) per Abbott CJ; Carpenter v Wall (1840) 11 Ad & El 803 at 804-805 (113 ER 619) per Lord Denman CJ, Littledale J, Patterson J and Coleridge J; Cross On Evidence 11^th Aust ed [17535].
[15] (1820) 2 Br and B 284 (129 ER 976).
[16] At 313.
The original predecessor to section 28 of the Act was section 17 of the Supreme Court Procedure Act 1855-1856 (SA). This enacted but did not extinguish the common law principle,[17] as can be seen from a comparison between section 28 of the Act (which is in materially the same terms as section 17) and the passage extracted above from The Queen’s Case.
[17] See Nicholls v The Queen (2005) 219 CLR 196 at [85] per McHugh and [280] per Hayne and Heydon JJ in relation to section 21 of the Evidence Act 1906 (WA) considered below.
28—Proof of contradictory statements of adverse witness
If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
It can be seen that there are five prerequisites that must be met by the cross-examiner before proof can be given of a former statement made by a witness alleged to be inconsistent with his or her present testimony:
1.The witness must be asked whether or not he or she made the statement proof of which is sought to be given.
2.The circumstances of the alleged statement sufficient to designate the particular occasion on which the statement was allegedly made must be put to the witness.
3.The witness must not distinctly admit that he or she made the statement.
4.The statement must be relative to the subject matter of the cause; ie relevant to a matter in issue and not merely to the witness’s credit.
5.The statement must be inconsistent with the witness’s testimony.
The first prerequisite
What is required
What is required to be put to the witness in respect of the alleged previous statement to discharge the first prerequisite necessarily depends on the proof of the alleged statement that the cross-examiner proposes to adduce. This follows from the consistent reference in the section in respect of each of the five prerequisites to “the statement”. The content of the statement that is put to the witness to discharge the first prerequisite must match the content of the statement that is allegedly inconsistent with the witness’s testimony and of which it is proposed to adduce evidence.
If the cross-examiner proposes to call a witness who was a party to the conversation in question, and the other witness does not recall the precise words used, the cross-examiner is required to put the conversation with as much precision and accuracy as the witness recalls. The mere fact that the witness does not recall the precise words does not preclude the cross-examiner from complying with the first prerequisite. However the cross-examiner cannot simply put his or her client’s interpretation of what was said as opposed to his or her witness’s best recollection of what was said.
By contrast, if the cross-examiner proposes to adduce evidence of the precise words used, whether because another party to the conversation has an exceptional memory or has access to contemporaneous notes from which to refresh his or her memory or because the cross-examiner has a record or recording of the conversation, it is incumbent on the cross-examiner to put the precise words. When the cross-examiner intends to adduce evidence of a recording of the conversation, there will be no compliance with the first prerequisite if the cross-examiner merely puts a paraphrase of the precise words or, worse still, puts a version which embodies his or her client’s own construction of or (without being pejorative) spin on the words used. If the cross-examiner proceeds in this latter manner, not only will the first prerequisite not be met on the plain wording of the section but also there will not be fairness to the witness or to the party calling the witness and the tribunal of fact will not have a proper comparison to make between the different versions. The witness will respond to and may deny the construction of what was said when the witness would have admitted the actual words used.
When the previous statement is in writing, it is not open to cross-examining counsel merely to paraphrase the words of the document or, worse still, put a particular spin on the words of the document without putting the actual words used to the witness if the cross-examiner wishes to adduce evidence of the document to contradict the witness. The situation in which a recording of a conversation is available is the same.
When the cross-examiner intends to adduce evidence of a recording of the conversation, if the cross-examiner proposes to call evidence of the precise words used, and they were in a language other than English, the need for the cross-examiner to comply with the first prerequisite is enhanced, not diminished. When the witness is reasonably conversant in English and gives his or her evidence primarily in the English (notwithstanding that it is his or her second language), the conventional method is for the cross-examiner to obtain a translation into English of the recorded foreign language words.[18] The cross-examiner can put to the witness the English translation of the foreign language words allegedly used by the witness and, if the witness does not accept that the foreign words have this translation, the cross-examiner can put the alleged foreign language words. Alternatively the cross-examiner can proceed in the reverse order. This is not to suggest that there may not be other ways in which a cross-examiner might proceed but, when evidence of the precise words used is available and intended to be adduced to contradict the witness, the precise words must be put to the witness.
[18] Ideally the cross-examiner would also obtain a transcript of the foreign language words (in the foreign language). However this is usually not essential, especially when the English translation is provided to the opponent in sufficient time for the opponent to consider its accuracy.

One method of proceeding in which the precise words are put to a witness was exemplified by the appellant’s counsel during his cross-examination of Mr Ahmed. On some occasions he first put the alleged English-translated words from the Yiros House recording and then put the Arabic words to Mr Ahmed and on other occasions he first put the Arabic words and then the English translation to Mr Ahmed. If in contrast to this method the cross-examiner merely puts a paraphrase of, or his or her client’s spin on, what was allegedly said, the non-compliance with the first prerequisite and the problems referred to at [90] above will be even greater due to the additional vagaries introduced by the translation process.
Again the situation is the same as when the previous statement is in writing and in a foreign language. The necessity for the foreign words to be translated into English does not give the cross-examiner licence to put a spin on the words in the document without putting those words to the witness.
In Nicholls v The Queen[19] the High Court considered section 21 of the Evidence Act 1906 (WA) which was similar to, but structured differently from, section 28 of the Act. Nicholls, Coates and Hoy were convicted of murder. Davis gave evidence implicating Nicholls and Coates. In cross-examination by counsel for Hoy, Davis was asked “have you ever told anybody that the whole story – you’ve made up the whole story you’ve told us about the involvement of Coates and Nicholls is a lie? You were told by police what to say? And that you did it so that you would gain a benefit?” Davis was also asked by counsel for Nicholls whether in a conversation he had said similar things. Later Nicholls sought to call Ross to prove that Davis told him that Nicholls and Coates were not involved but he would give evidence implicating them because the police had offered him a deal if he did so. The trial Judge held that this did not lay an adequate foundation for the purpose of section 21 of the Western Australian Act. This was conceded on the appeal to the High Court but some members of the Court made observations about the requirements of section 21 and of the common law. McHugh J said:
Counsel for Nicholls acknowledged that there was a failure to identify the circumstances of the statements allegedly made by Davis, such as the time, place and occasion of the statements. There was also a failure to identify the speakers, the essence of the conversation and the words used. As a result, both s 21 of the Evidence Act and the common law principle made Ross's evidence inadmissible.[20]
[19] (2005) 219 CLR 196.
[20] At [89]. (Emphasis added)
Hayne and Heydon (with whom Gleeson CJ and Kirby J relevantly agreed) said:
The wider common law rule was not complied with in this case. The reasons are identical to the reasons why the appellants on their own concession failed to meet the requirements of s 21 of the Evidence Act. The cross-examinations of Davis set out above did not mention Ross. They did not mention the specific place where Davis allegedly spoke to him. They did not mention the specific time when Davis allegedly spoke to him. They were hazy about the content of what Davis allegedly said to Ross. They gave Davis no opportunity to give any "reason, explanation or exculpation of his conduct … as the particular circumstances [might] happen to furnish". It would have been erroneous to allow Ross to give evidence of the alleged conversation, when Davis had not been confronted with the evidence that Ross was going to give.[21]
[21] At [283]. (Footnote omitted) (Emphasis added)
Application to the facts
Turning to the facts in the present case, the appellant’s counsel sought to play specific passages from the Gepps Cross recording to Mr Hamoud and ask him to translate them into English in real time before the jury. It may be observed in passing that this would have been unfair both to Mr Hamoud and the prosecution. If Mr Hamoud had been given the recording in advance and asked to translate it, he would have had the entirety of the conversation available to give context to the words used in the three passages in question. That context would potentially have affected his translation of the words used in those three passages. In addition he would have had the opportunity to play and replay the recording at his leisure to ensure that he properly heard and understood the words spoken in Arabic. If he had attempted to conduct the limited translation before the jury which the appellant’s counsel intended to ask him to undertake, his translation would have been prone to error.
In addition, if it were to be suggested that the recording demonstrated that Mr Alhalah lied to the police when he gave his statement and that Mr Alhalah had not distinctly admitted saying the words in question, evidence of the entire recording translated into English should have been adduced. This is because the words used in any given passage may be affected by the context in the whole. The jury was entitled to know the entire content and Mr Alhalah and the prosecution were entitled to have the entire content before the jury.
It may also be observed in passing that proceeding in the manner in which the appellant’s counsel did may arguably have breached section 285BC of the Criminal Law Consolidation Act 1935 (SA)[22] which required notice to be given of an intention to adduce expert evidence. However it is not necessary to consider these introductory matters further.
[22] Since 8 March 2016 section 124 of the Criminal Procedure Act 1921 (SA).
One consequence of the manner in which the appellant’s counsel proceeded was that, at the point at which he was cross-examining Mr Alhalah, he could not know what translation would be given by Mr Hamoud. He could not know which Arabic words Mr Hamoud would be able to make out and which he would not be able to make out. He could not know into which English words Mr Hamoud would translate the Arabic words that he could make out.
The appeal was argued on the premise that the translation that would have been made by Mr Hamoud if the trial Judge had not upheld the prosecutor’s objection would have been the translation obtained by the appellant in November 2017 for the purpose of the appeal. The three passages from that translation compared to the three matters put to Mr Alhalah are set out in the following table:

Translation of conversation Question in cross-examination

Appellant: Law does not protect fools

Mr Alhalah: I am talking about Ali. His troubles are no more than sham. Ali will not come or go. Nothing will happen to him. As I said, if asked, I have no connection, I heard nothing, I knew nothing. If required, I will tell them [noise] because troubles to him.

during the recording, halfway through it, you say something along these lines, don’t you:

‘I made it up to get him in trouble’.

Mr Alhalah: I hope this issue is resolved soon.

Appellant: I told the lawyer, he is my friend. He replied once he comes, all will be resolved.

Mr Alhalah: I will not come or go. And if he asks you, tell him I was lying. If I was compelled to go I will say I was lying. I hated that man and I wanted to get him in trouble.

Later in the recording you said something along those lines, didn’t you:

‘I lied and I made up the story’
…
‘at that time I hated him and wanted to get him into trouble’, meaning Kassem.

Mr Alhalah: Ali came recently to tell me about things happened in the past. Had he told me earlier, things would have been different now. But to fabricate stories about late Amin

Appellant: You, I, Amin and Khalil when we were in the washroom.

Mr Alhalah: What?

Appellant: I swear by God that the bastard said to the police.

Mr Alhalah: Who asked him for his testimony
Towards the end of the recording you told Kassem about Ali telling you a different story and telling you about Ameen, didn’t you.

Addressing the passages in reverse order, in the third passage the appellant’s counsel did not put to Mr Alhalah any statement alleged to have been made by Mr Alhalah to the appellant. He merely identified a subject-matter, putting that Mr Alhalah said about Ali telling him a different story and telling him about Ameen. What was put to Mr Alhalah by the appellant’s counsel was not only extraordinarily vague, it was not even a statement. This manifestly failed to comply with the first prerequisite.
In the second passage, the appellant’s counsel prefaced what he put by the words “you said something along those lines”, thereby indicating that it did not even purport to be a faithful account of what was said translated into English. He then put that Mr Alhalah said something along the lines “I lied and I made up the story”. Manifestly this was not what was said by Mr Alhalah. Rather he said “If he asks you, tell him I was lying. If I was compelled to go I will say I was lying.” being a statement about what he proposed to say in the future hypothetically if asked or if compelled to go. What was put by the appellant’s counsel was the appellant’s own spin on what Mr Alhalah said. It was incumbent on the appellant’s counsel to put what was said. This would have given to Mr Alhalah the opportunity to agree or disagree. The appellant’s counsel should then have put that by those words Mr Alhalah intended to convey that he had been lying in the past but that is a separate and additional step to putting the words that were used.
A statement that a person will say in hypothetical circumstances in the future that he or she was lying does not connote that the person was in fact lying in the past. For example many people would say that if threatened with death in the future they would say that they were lying in the past when they were telling the truth. Even if an interpretation of what Mr Alhalah said were open that he had lied in the past, the appellant’s counsel was obliged to put the words used by Mr Alhalah before putting his interpretation of those words. If he had done so, it is almost inevitable that Mr Alhalah would have admitted the words used but denied the construction thereof advanced by the appellant. Clearly there is a difference in kind between denying that words were used and denying the construction sought to be put upon them by a party to the litigation. The first prerequisite required Mr Alhalah’s statement to be put to him; not the appellant’s construction of what was intended or understood to be conveyed by it.
In addition, leaving aside the spin placed on what was said, it was necessary as a matter of fairness for the whole of the passage contained in the box on the left to be put to Mr Alhalah because that passage has to be understood as a whole.
In the first passage, the appellant’s counsel also prefaced what he put by the words “you said something along those lines”, thereby indicating that it did not purport to be a faithful account of what was said translated into English. He then put that Mr Alhalah said something along the lines “I made it up to get him in trouble”. Manifestly this was not what was said by Mr Alhalah. Rather he said “If asked, I have no connection, I heard nothing, I knew nothing. If required, I will tell them [noise] because troubles to him.” being a statement about what Mr Alhalah proposed to say in the future hypothetically if required. Again, what was put by the appellant’s counsel was the appellant’s own spin on what Mr Alhalah said. It was incumbent on the appellant’s counsel to put what was said. This would have given to Mr Alhalah the opportunity to agree or disagree. Again, leaving aside the spin placed on what was said, it was necessary as a matter of fairness for the whole of the passage contained in the box on the left to be put to Mr Alhalah because that passage has to be understood as a whole.
I observe in passing that the appellant could hypothetically have chosen not to reveal the existence of the Gepps Cross recording or refresh his memory as to what was said by listening to it and then, if he was willing to do so, given evidence that to the best of his recollection Mr Alhalah said ‘I made it up to get him in trouble’, ‘I lied and I made up the story’ and ‘at that time I hated him and wanted to get him into trouble’. (He could hypothetically have called his wife on a similar basis if she had heard to the conversation between Mr Alhalah and her husband and was prepared to give evidence to that effect). However, this would have had a very different impact on the jury to putting before the jury a recording of the conversation together with a translation by an accredited independent translator of the passages upon which he wished to rely. The appellant wanted to have his cake and eat it too by relying on real independent evidence as to what was said but not putting to Mr Alhalah the words said according to that real and independent evidence. He also sought to obtain a tactical advantage by not disclosing the existence of the Gepps Cross recording until Mr Alhalah was being cross-examined.
As noted above, after the hearing of the appeal the appellant waived privilege in a translation which his wife had made before trial of the Gepps Cross recording. There are many and marked differences between the November Gepps Cross translation and the appellant’s wife’s translation. For example, the November Gepps Cross translation contains passages that are missing completely in the appellant’s wife’s translation. Where they both contain roughly corresponding passages, there are marked differences between them. The translator’s translation sounds stilted in English because, as the evidence given by Mr Hamoud at trial demonstrated, a faithful translation from Arabic into English does sound stilted; whereas the appellant’s wife’s translation sounds like a person whose first language is English speaking in English because she took greater liberties in the translation. The appellant’s wife’s translation has no probative force for the purpose of the appeal. There is no evidence that she has the expertise or experience to produce an accurate translation from Arabic into English. There is no evidence from her that she produced a faithful or accurate translation to the best of her ability. She is obviously partisan. Moreover, as noted above, the appeal was argued on the basis of the November Gepps Cross translation.
For the sake of completeness, I note that, where the translator indicated in the first passage above that there was “[noise]”, the appellant’s wife included a translation. The differences between the November Gepps Cross translation and the appellant’s wife’s translation in this respect are shown in the following table:

November translation Appellants wife’s translation

Mr Alhalah: As I said, if asked, I have no connection, I heard nothing, I knew nothing.

If required, I will tell them [noise] because troubles to him.

Mr Alhalah: I said and am still saying if they ask me I have no idea. It’s not my problems.

And if they force me I will tell them I made up the story. I want to get in trouble. I lied to get in trouble.

It is conceivable given the context that Mr Alhalah said that if required or forced, “I will tell them I made up the story” at the point at which the translator could only hear noise. However the appellant’s wife included the additional words “I lied to get in trouble” which have no counterpart in the translator’s version at all. This merely exemplifies why, if the appellant wished to adduce evidence of the words on the recording and put to Mr Alhalah the words that were allegedly contained thereon, it was incumbent on him to do so fully and properly. In any event, the appellant’s counsel did not put to Mr Alhalah the appellant’s wife’s translation: he made no reference to “I said and am still saying if they ask me I have no idea. It’s not my problems. And if they force me I will tell them I made up the story.”
There was a faint suggestion on the hearing of the appeal that the appellant might have been financially constrained in obtaining a translation of the Gepps Cross recording. There are several answers to any such suggestion as being relevant to determination of the question whether the first prerequisite was met. First no evidence was adduced that the appellant did not have the capacity to pay the small cost of obtaining a translation of the Gepps Cross recording. Secondly, if the appellant had obtained a translation, he would have been required by section 285BC of the Criminal Law Consolidation Act 1935[23] to have given notice to the Director of his intention to adduce such expert evidence and he clearly would have gained a tactical advantage if excused from complying with the first prerequisite on financial grounds. Thirdly if he could not afford a translation but wished to deploy the Gepps Cross recording he could have given it to the Director who would have been obliged to obtain a translation given the potential effect on a prosecution witness’s credit. Finally and much more importantly than any of these matters, the question whether the first prerequisite is met does not and cannot depend on whether a litigant has the financial means of complying with it. If what was put by the appellant to Mr Alhalah in the present case is regarded as complying with the first prerequisite under section 28, there is no reason why in all cases defence counsel cannot for tactical purposes put to a witness a paraphrase or construction of what was said by a witness as recorded in a document or recording rather than the actual words used.
[23] Since 5 March 2018 section 124 of the Criminal Procedure Act 1921 (SA).
There was also some suggestion at the hearing of the appeal that, if there would otherwise have been a failure to comply with the first prerequisite, that failure was somehow remedied by the fact that the Gepps Cross recording had been played to Mr Alhalah on the previous afternoon at the adjournment of the court. This was incapable of comprising compliance with the first prerequisite. First the recording was only played once and continuously over 17 minutes. No witness in Mr Alhalah’s position could be expected to even take in comprehensively what he heard at the time of listening, let alone retain a recollection of what had been said in particular passages. Secondly and more importantly, the mere fact that the recording had been played the previous day did not entail that what was put to Mr Alhalah in cross-examination the following day involved putting to him the words used in any manner that matched the intended evidence to contradict him.
The appellant failed to put to Mr Alhalah fully or faithfully the statements which Mr Alhalah had allegedly made to him and evidence of which the appellant intended to adduce. The first prerequisite was not met. The questioning was manifestly unfair to the witness, unfair to the prosecution and not conducive to the jury making a finding as to what was said during the Gepps Cross conversation. The Judge’s ruling was correct. The appellant had not laid a foundation to adduce evidence of the content of the Gepps Cross recording or its English translation.
There is no need to consider whether the other prerequisites were met.
Conclusion
The appeal should be dismissed.
DOYLE J: The appellant was found guilty by a jury of three counts of theft. This appeal against conviction concerns the admissibility of evidence of what the appellant contends were prior inconsistent statements by a key prosecution witness. The prior statements were said to be inconsistent with that witness’ evidence to the effect that the appellant had admitted obtaining money from the victim.
Background
The appellant and victim worked with others in a take-away shop in the city. The prosecution case was that the appellant tricked the victim into giving him sums of money on three separate occasions. The first concerned $7,000 for the purchase of a car. The second concerned $33,000 for a taxi business. The third concerned $2,500 by way of a fee for breaking the contract in relation to the taxi business.

In relation to the second half of the exchange at 8:20, it provided:
Mr Alhalah:               What happened between us, we are still friends. I did that because I was angry at [the appellant] at that time because he never answered me.
Appellant:         You are right. I don’t blame you.
Mr Alhalah:               I was angry and upset. That why I behaved like that and gave a false statement. You know money never comes between us. The money you borrowed I had to put it from my pocket.
Appellant:         Yes, I swear by Allah.
Mr Alhalah:        Okay man, not a problem.
And in relation to the exchange at 14:00, it provided:
Mr Alhalah:               God willing all good from my side ensure.
Appellant:I told the lawyer he is my friend and he promised me he will not come.
Mr Alhalah:               I won’t go anywhere and if I have to I will tell them I made up the story because I was angry at him. If they force me I will tell them I lied because I was pissed off with him.
Appellant:         No. God willing they won’t force you …
Mr Alhalah:               And [the victim], lately he is coming to the shop and tell me different story about what happened about the money. The story he is telling me now is different to what he told me before. He started talking about [Mr Al Aswareh] and tell me stories about him and the money. He is telling me different stories to what he told me before. If I knew that at the time I wouldn’t have go with him to give a statement.
Consideration
In considering the independent translation of the 8 September 2015 conversation, it is important to bear in mind that it does not purport to be a verbatim transcript. It is, in effect, an expert’s opinion as to the meaning of what was said. As I have mentioned, it is also apparent from the translation that it was a fast-moving and disjointed conversation, and a conversation in which there appears to have been a significant level of assumed knowledge on the part of the participants. Indeed, there are numerous passages within the translation that not only differ significantly from the translation given by the appellant’s wife but also make little or no sense. I make these observations not by way of criticism of the expert who provided the translation, but rather to emphasise the uncertainty about precisely what was said, and hence the caution that needs to be exercised in determining the meaning of the relevant passages of the conversation.
The two critical passages are those that appear soon after the 7:10 and 14:00 time notations respectively. In the first passage,[49] the translation has Mr Alhalah saying words to the effect that if required he will say that he is lying and that he made it up to get the appellant in trouble. In the second passage, the translation has him saying words to the effect that if he was compelled he would say he was lying; that he hated the appellant and wanted to get him in trouble.
[49] Reading in the extra words supplied in the affidavit mentioned earlier.
On the one hand, there are aspects of these passages that support the prosecution contention that Mr Alhalah said merely that, if required to give evidence in court, he would say his reference to the appellant’s admission in his police statement was a lie; and did not say that it was in fact a lie. Certainly the translation has Mr Alhalah using the future tense when referring to lying. It has him speaking of lying, or saying he made it up, if required or compelled to give evidence about the matter at some point in the future.
This construction would also be consistent with the tone of the conversation, which is suggestive of Mr Alhalah no longer being angry with the appellant and, indeed, being reluctant to accept the money the appellant was offering to repay him. While Mr Alhalah’s past anger with the appellant had led him to (truthfully) inform the police of the appellant’s admission, he had now recovered from that anger and so, if required to give evidence in the future, would help the appellant by saying he made the admission up because he had been angry with the appellant and wanted to get him into trouble. On the prosecution contention, this would be consistent with Mr Alhalah being willing to help the appellant, either to show his gratitude for the repayments that had been made to him by the appellant, and perhaps to encourage future repayments.
However, when read closely, there are also aspects of the translation that support the appellant’s construction of the conversation, namely that Mr Alhalah was acknowledging that he had been lying all along about the admission. This construction would be consistent with Mr Alhalah’s references to the victim’s troubles being “no more than a sham”. It would also be consistent with Mr Alhalah acknowledging that he had in fact been angry with the appellant for failing to repay the loan to him, and having had an incentive to lie about the admission so as to put pressure on the appellant to repay Mr Alhalah (and his family), or to punish him for not having done so.
While acknowledging Mr Alhalah’s references to lying in the future tense, the appellant contends that these are at least open to being construed as statements by Mr Alhalah which merely foreshadowed a preparedness on his part, if required to give evidence at court, to say that he was lying about the admission because he had in fact been lying about it the whole time. In other words, he was acknowledging a preparedness to (truthfully) acknowledge his past lie about the admission, rather than a preparedness to tell a lie by denying the truthfulness of his earlier reference to the admission.
On my reading of the translation, I prefer the prosecution construction of the 8 September 2015 conversation. I thus prefer a construction that would be consistent with the appellant having made an admission to Mr Alhalah, and hence consistent with Mr Alhalah’s evidence in court. But that is not the test. As I have said, the test is whether the prior statement is reasonably open to a construction that would be inconsistent with the witness’ testimony. On the basis of the considerations mentioned above, I accept that the translation is reasonably open to the construction contended for by the appellant. As such, I am satisfied that the second precondition to the admissibility of the previous statements under s 28 of the Evidence Act was established.
Whether the former statements had been sufficiently put and not distinctly admitted
In my view, the third and fourth conditions are related, and, as I have mentioned, reflect the rationales of pragmatism and fairness underpinning the finality rule and the exceptions to it. The requirements that the witness be informed of the former statement by the cross-examiner, and be given an opportunity to admit or deny having made the statement, are intended to ensure both that the Court’s time is not wasted with proof of the former statement if there is no dispute about what was said; and that the witness is given a fair opportunity to admit or deny the making of the former statement, and the (asserted) inconsistency between that former statement and the witness’ evidence.[50]
[50] Nicholls v The Queen (2005) 219 CLR 196 at [85], [189], [207]-[209], [277], [281]-[283].
Compliance with the third and fourth conditions requires that the circumstances and substance of the previous statement be put to the witness. Putting the circumstances of the previous statement to the witness requires that the witness be given sufficient detail to enable them to identify the occasion on which the statement was made. It will usually require some identification of the timing, location and audience of the previous statement. Putting the substance of the previous statement to the witness requires that the witness be given sufficient detail of the terms or content of the previous statement to enable them to identify what it is suggested they said and, at least in those cases where it is not readily apparent from the words themselves, the asserted inconsistency. It will usually require some identification of the words used, or at least the essence or effect of the words used. And in a case where the meaning of the words (and hence the asserted inconsistency) does not follow obviously from the words used, it may also require some identification of the meaning of the words.
Detail and precision as to the circumstances and substance of the previous statement will always be desirable. However, fairness to the witness, and compliance with s 28, will not always require exhaustive detail or complete precision as to either the circumstances or substance of the previous statement.
Focusing upon the requirement that the substance of the previous statement be put to the witness, I do not consider that this requires that the cross-examiner put the precise words used to the witness. It will often be the case that it is simply not possible or realistic to put the precise words to the witness. Ordinarily, the source of the cross-examiner’s instructions, and the anticipated form of the independent evidence of the previous statement if it is not distinctly admitted, will be another witness’ recollection of something the witness said. It will often be the case that the other witness’ recollection will not allow for any more precision than the general effect of the words said. Thus, if it were necessary to put the precise words, s 28 would often not be capable of being complied with.
More importantly, there is nothing in the text of s 28 that requires this level of precision. The text of s 28 may be contrasted with the text of s 29, which requires that the written version of the previous statement (and hence the precise words of the statement) be shown to the witness. In the circumstances of a previous statement in written form, this precision is easily achieved, and hence it is entirely to be expected that s 29 requires that it be achieved. The absence of any equivalent wording in s 28 is a reflection of the likely difficulty, and in many cases impossibility, of achieving the same level of precision in the case of a previous statement made orally.
Nor, in my view, does fairness to the witness require this level of precision. What will be necessary in order to ensure that the witness has had a fair opportunity to admit or deny the previous statement will depend on the circumstances. It will at the very least require that the general effect of the words be put to the witness. However, whether it will require more than this will largely depend upon the nature of the independent evidence intended to be led in order to establish the previous statement.
By way of explanation of this last observation, whether the third and fourth conditions of s 28 have been complied with can only be determined by reference to the independent evidence intended to be led. Whether these conditions have been complied with is to be determined not in the abstract, but rather at the time of, and in the context of, consideration of the admissibility of the intended evidence. The more detailed and precise that intended evidence, the more detailed and precise the foundation that will need to have been laid in order for it to be admissible. Conversely, the more general the intended evidence, the more general the foundation that may suffice.
For example, if the cross-examiner intends to adduce evidence of the previous inconsistent statement through the oral evidence of another witness, whose evidence will be confined to a recollection that on occasion X the witness said something to the effect of Y, then compliance with s 28 will require only that it have been put to the witness that on occasion X they said something to the effect of Y.
Using the facts of this case to illustrate this point, let it be assumed that the cross-examiner did not have a recording of the 8 September 2015 conversation, and intended only to adduce evidence from the appellant’s wife to the effect that she recalled the relevant conversation with Mr Alhalah; that she could not now recall anything of the detail of that conversation; but that she could recall that Mr Alhalah said words to the effect that when he made a statement to the police he lied about the admission. If this were the limited nature of the evidence available to, and intended to be adduced by, the cross-examiner, then I consider it would have been sufficient compliance with the s 28 requirement that the witness have an opportunity to admit the substance of the statement that it was put to him that, on the relevant occasion, he said words to the effect that when he made a statement to the police he had lied about the admission.
On the other hand, if the cross-examiner intends to adduce evidence of the previous inconsistent statement which is more detailed and precise (for example, through a witness who purports to have a detailed and precise recollection of the relevant words and the context in which they were spoken, or through a tape recording of the relevant words), then fairness would, in my view, generally require that the asserted previous statement be put to the witness with a corresponding level of detail and precision. There would be an element of unfairness in putting only a very general proposition to the witness, and then seeking to contradict that evidence with a very detailed account of what was said.
While each case will turn on its facts, and there will often be questions of degree, I consider that whether the witness has been afforded a fair opportunity to admit or deny the asserted previous statement, and the inconsistency it is said to involve, and hence whether the s 28 preconditions to the admissibility of independent evidence of that previous statement have been met, will generally require a reasonable degree of correspondence between the content (including the level of detail and precision) of the independent evidence of the previous statement proposed to be led, and the foundation that must first be laid with the witness.
Putting the difficulties associated with statements in a foreign language to one side, if it is intended to adduce evidence of a previous inconsistent statement or statements through a tape recording of the relevant words, then ordinarily fairness would require that the tape recording be played to the witness, or that an essentially verbatim account of the relevant passages be put to the witness. And to the extent that the meaning of a critical passage (and hence the asserted inconsistency) may not be clear, it might also be necessary to put to the witness the contended meaning or effect of that passage.
Here, there was a tape recording of the 8 September 2015 conversation available to the cross-examiner. He intended to rely upon that tape recording (or at least an independent expert translation of the relevant passages from it) as evidence of the previous statements said to be inconsistent with Mr Alhalah’s evidence. However, at the time of cross-examination of Mr Alhalah, the position was complicated by the fact that the conversation and recording were in Arabic, and the cross-examiner did not have either a transcript of the conversation or a translation of the relevant passages from an appropriately qualified expert.
Ideally the cross-examiner would have obtained a translation of the conversation (or at least the relevant passages) from an appropriate independent expert prior to the cross-examination of Mr Alhalah. He would then have been in a position to not only play the tape to Mr Alhalah in Arabic, but also to have put to Mr Alhalah an essentially verbatim account of what it was to be suggested he said, and something of the context in which he said it. Acknowledging the scope for some uncertainty arising from the process of translation, it might also have been desirable to put to Mr Alhalah that the effect of what he said in the relevant passages was that he had lied about the admission in his police statement (rather than that he was merely prepared to lie about the admission in the future).
However, circumstances may make this ideal approach difficult to comply with. The cross-examiner may not have anticipated the evidence giving rise to the asserted inconsistency. Alternatively, there may be financial or other practical obstacles to this approach.
In my view, the course adopted by the cross-examiner in this case, while less than ideal, and somewhat unorthodox, did ultimately comply with the third and fourth conditions of s 28. By reason of the matters set out below, I consider that compliance was achieved through a combination of playing the tape to Mr Alhalah, and the questions asked of him.
First, the cross-examiner clearly made plain the occasion of the conversation. Through the questions and tape recording, Mr Alhalah was informed of the date, place and audience of the previous statements. The respondent does not suggest otherwise.
Secondly, and in relation to the substance of the previous statements, I consider that Mr Alhalah was given a fair opportunity to admit or deny the previous statements. It is significant in this respect that Mr Alhalah was given an opportunity to listen to the tape. Had he not been given this opportunity, then the questions asked of him may not have been sufficient. They may not have given him sufficient context or detail to give him a fair opportunity to admit or deny the previous statements. However, against the background of that opportunity to listen to the tape, I consider that the questions were sufficient.
In particular, I consider that through the questions labelled Q5-Q7 in the passage I have extracted earlier from the transcript of the cross-examination, the cross-examiner put the effect of the critical passage that appears at 7:10 of the independent translation; and through questions Q8-Q10, the cross-examiner put the effect of the critical passage that appears at 14:00 of the translation. As to the former, there was sufficient correspondence between the questions asked (essentially, whether the witness had said something along the lines that he made it up to get the appellant in trouble) and the translated words[51] (“if required, I will tell them I made up stories … get him in trouble, I am lying”). As to the latter, there was sufficient correspondence between the questions asked (essentially, whether the witness had said something along the lines that he hated the appellant and wanted to get him into trouble, and that he lied and made up the story) and the translated words (“… tell him I was lying. If I was compelled to go I will say I was lying. I hated that man and I want him to get in trouble”).
[51] When read in conjunction with the affidavit as to the words spoken in the italicised passage.
If the conversation had been in English, then the circumstances might have required that the precise words in the relevant passages be put to Mr Alhalah. But in the circumstances of this case, I consider it was sufficient that the cross-examiner put, as he did, the (contended) effect of the words used in the relevant passages. While the cross-examiner put the previous statements with the qualifying expression “something along those lines”, this was the equivalent of the more common expression “words to the effect”. By putting the effect of the words used, the cross-examiner exposed the (contended) inconsistency, and in my view gave Mr Alhalah a fair opportunity to admit or deny the previous statement and inconsistency.
I am fortified in this conclusion by the answers given by Mr Alhalah. From those answers (particularly those that I have labelled A5 and A7-A10), it appears that Mr Alhalah understood that it was being put to him that, in the 8 September 2015 conversation, he had said he lied about, or made up, the admission. His answers suggested that he acknowledged he had said something about lying, but not in the sense it was being put to him – for example, when he said in answer A5 “no, not that way”, and when he mentioned in answer A7 not saying what was in his statement if required to come to court. In my view, the relevant exchange makes it plain that the witness understood what was being put to him, and that he was denying, if not the words used, at least the sense in which they were used and the meaning they conveyed. He thus appears to have understood, and to have denied, the inconsistency that was inherent in what was being put to him.

In his answer labelled A11, Mr Alhalah said that he needed to clarify what he had said. While the cross-examiner did not give him this opportunity, I do not think he was obliged to do so. I consider that by this point in the cross-examination, he had given Mr Alhalah a fair opportunity to admit or deny what he had said, and the effect or meaning of those words. That was all that he was required to do, and it was a matter for the prosecutor whether he wished to re-examine so as to give Mr Alhalah an opportunity to give the clarification he apparently wanted to give.
Thirdly, having given Mr Alhalah an opportunity to admit or deny the previous statements, Mr Alhalah did not “distinctly admit” those statements. The adverb “distinctly” means that only a clear or unqualified admission will suffice. While the witness, through his reference in answer A8 to “not that way”, and in his explanation in answer A9, appears to have implicitly accepted saying something about lying about the admission, he did not distinctly admit the previous statements or their effect.
In light of the above, I am satisfied that the s 28 conditions to the admissibility of evidence of the statements made by Mr Alhalah in the passages at 7:10 and 14:00 in the 8 September 2015 conversation had been satisfied. I consider that the trial judge thus erred in upholding the objection taken by the prosecutor to defence counsel’s foreshadowed questions of the interpreter in relation to the meaning of the relevant passages of the tape recording.
I consider that the above analysis is consistent with the observations of this Court in Price v Bevan[52] and the High Court in Nicholls v The Queen.[53]
[52] Price v Bevan (1974) 8 SASR 81.
[53] Nicholls v The Queen (2005) 219 CLR 196.
In Price v Bevan, Bray CJ said the following in relation to the foundation necessary to permit independent proof of a previous inconsistent statement:[54]
The first step surely must be, before the prior inconsistent statement is proved aliunde, to ask the witness whether at some particular time and place he made some particular statement inconsistent with his present testimony. …
Next, what is allowed to be proved is a prior inconsistent statement and I understand by that some precise form of words related to the issues of the case. I do not think that "statement" is used in the loose sense in which a solicitor speaks of the whole document he has prepared as the witness's proof as a statement by the witness. As will be seen, I do not think that Chandler should have been allowed simply to authenticate the documents as containing the conversations, but if he had given oral evidence of those conversations, as I think he should have, he should only have been allowed to give oral evidence of the precise alleged inconsistent statement with, no doubt, whatever else was necessary to explain that and make sense of it. That was not done here. In my opinion Trinidad should have been asked (after the Court's permission had been obtained), "Did you say to Chandler A, B, C and D", specifying precise words, "or something like it?" If he admitted this there would have been no need to call Chandler at all. If he denied these things then Chandler should have been asked, without leading him, whether he had a conversation with Trinidad at some particular time and place concerning topics A, B, C and D &c. and what Trinidad said about them.
[54] Price v Bevan (1974) 8 SASR 81 at 87-88.
While the respondent pointed to Bray CJ’s reference to “some precise form of words”, his Honour used this phrase merely to emphasise that the independent proof will be confined to the particular words or passage necessary to identify the (asserted) inconsistency, rather than, for example, the entirety of some statement the witness might have provided in relation to the matter.
This case does not stand as authority for the proposition that the cross-examiner must put the precise words (in the sense of a verbatim account of the words) to the witness. To the contrary, Bray CJ expressly contemplated a form of question containing the qualifying words “or something like it”.
In Nicholls v The Queen, it was conceded that the cross-examiner had not laid an adequate foundation to permit independent proof of the asserted previous inconsistent statement. The cross-examination of the relevant witness had involved little more than questions whether the witness had ever told anybody that the version of events he had given in evidence was a lie, or “bullshit”. This was plainly an inadequate foundation for the intended independent evidence of a statement to a particular person on a particular occasion. While the High Court did criticise the “hazy” nature of the cross-examination as to the content or substance of the previous inconsistent statement,[55] the more fundamental problem was the complete failure to identify the occasion of that statement. The cross-examination revealed nothing at all as to the audience, place or timing of the statement.
[55] Nicholls v The Queen (2005) 219 CLR 196 at [283].
Given the fundamental deficiencies in the foundation laid by the cross-examiner in Nicholls v The Queen, I do not understand anything said by the High Court in that case to require that more detail or precision would be required than what was provided in the present case.
Disposition of the appeal
For completeness, I note that the respondent did not contend that, if evidence of the 8 September 2015 conversation was wrongly excluded, the appeal should nevertheless be dismissed by reason of the operation of the proviso to the common form appeal provisions – namely, by reason that there was no substantial miscarriage of justice.
In any event, I am satisfied there was a substantial miscarriage of justice. Whether or not the appellant admitted obtaining money from the victim, and hence the witness Mr Alhalah’s credibility on this issue and more generally, were important matters in the context of these proceedings. If the jury had heard evidence as to the 8 September 2015 conversation, this may well have influenced them in their consideration of whether the prosecution had proved the allegations of theft beyond reasonable doubt. The erroneous exclusion of that evidence deprived the appellant of a reasonable chance of an acquittal. This is not a case in which the proviso may safely be applied.
For these reasons, I would allow the appeal, quash the convictions and order a new trial.

Appellant’s counsel	Mr Alhalah
1	during the recording, halfway through it, you say something along these lines, don’t you: ‘I made it up to get him in trouble’.	No, not that way …I said to him ‘If I come here, I won’t say what in the statement’.
2	Later in the recording you said something along those lines, didn’t you, ‘I lied and I made up the story’ You said ‘at that time I hated him and wanted to get him into trouble’, meaning Kassem.	No, no, not that way. No, I didn’t say that. I wanted to get him into trouble but I didn’t make this up.
3	Towards the end of the recording you told Kassem about Ali telling you a different story and telling you about Ameen, didn’t you.	Nothing about Ameen but Ali – I have an argument with Ali because he knew I wanted to withdraw my statement, he wasn’t happy, and we had a big argument because he was so annoyed that I wanted to withdraw my statement, for safety reason, by the way.