R v Trabolsi

Case [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…

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R v Trabolsi [2018] SASCFC 57
Case
[2018] SASCFC 57
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against conviction by the appellant, who had been found guilty by a jury of three counts of theft. The dispute centred on the admissibility of evidence relating to alleged prior inconsistent statements made by a key prosecution witness, Mr Alhalah. The appellant contended that these statements contradicted Mr Alhalah's evidence that the appellant had admitted obtaining money from the victim. The appeal was heard by Kourakis CJ, Blue and Doyle JJ.

The legal issues before the court were whether the appellant's counsel had properly sought to adduce evidence of alleged prior inconsistent statements by Mr Alhalah, and whether such evidence, if improperly adduced, should have been admitted. Specifically, the court considered the fairness of cross-examining a witness without putting the opposing version of events to them, as per the rule in *Browne v Dunn*, and the implications of attempting to obtain a real-time translation of audio recordings before a jury.

The court reasoned that the appellant's counsel's attempt to play specific passages from an audio recording to a translator and have them translated in real-time before the jury was unfair to both the translator and the prosecution. This method deprived the translator of the context of the full conversation and the opportunity to review the recording at leisure, increasing the likelihood of error. Furthermore, if the intention was to suggest that Mr Alhalah had lied to the police, the entire recording, translated into English, should have been presented to the jury to provide full context. The court also noted that this approach may have breached provisions requiring notice of expert evidence. The court applied the principle that a party intending to contradict a witness must first put their version of events to that witness, ensuring fairness and allowing the witness an opportunity to respond.

The appeal was dismissed. The court found no need to consider other prerequisites for admissibility, implying that the manner in which the evidence was sought to be introduced was fundamentally flawed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.