R v Zeytoun No. DCCRM-03-386

[2003] SADC 159

R v Sami Wanjid Zeytoun
[2003] SADC 159

Judge Clayton
Criminal

1. This was a disputed facts hearing.  The fact in dispute was whether Mr Zeytoun was in the car park of the Royal Hotel, Kent Town, on the evening of 30 August 2002, at the time of or shortly after an offensive telephone call, which he admits that he made, to the victim.

2. The victim gave evidence.  Mr Zeytoun also gave evidence.  Other evidence was given by a police officer and the log of incoming calls made to the Royal Hotel at Torrensville on 30 August 2002, was tendered.  The prosecution accepted the accuracy of the log.

3. The victim gave evidence that she saw Mr Zeytoun sitting in her motor vehicle in the car park shortly after she had received a threatening telephone call from him.  Mr Zeytoun denied that he had been in the car park of the Royal Hotel at Kent Town at all on 30 August 2002.

4. I am not able to prefer the evidence of one witness to the evidence of the other.  On that basis alone I must find that there is a reasonable doubt as to the fact in issue.  Additionally, the evidence of the victim can not be reconciled with the log of the incoming phone calls made to the Royal Hotel at Kent Town on that evening.

5. The victim was an employee of the Royal Hotel at Kent Town.  On 30 August 2002, she had started work at around 3 pm.  At about 5 pm she started to receive telephone calls from Mr Zeytoun.  He rang the hotel numerous times.  He said he thought the victim was having an affair with the chef and he said that he was going to kill the victim and kill the chef and that he was waiting for the victim in the car park.  He said he was going to wait there until the end of the shift to get her, to hurt her and her mother and son.  She was upset and hung up.  She telephoned the police and asked the directors to telephone the police.  The hotel was busy and she tried to go back to work.  She went down a corridor, went through a sub-entrance to the front door and looked into the car park.  She saw her car which she had previously left in the custody of the defendant.  The victim said, “I could see Sam (Mr Zeytoun) was in the car with his hand out the window.  He was wearing a denim jacket with a white woolly collar and he had a bandage on his hand”.  It was not dark at the time.  The victim went back into the gaming room where she was working, but she was not capable of serving the customers.  She was asked to go to the kitchen and she did that.  There were two police officers in the kitchen who wanted to speak with her.  She gave them a statement.

6. From other evidence, it appears that the police had arrived at about 6.20 pm and the victim commenced making her statement to them at about 6.30 pm.  On the basis of the evidence of the victim, Mr Zeytoun must have spoken to her shortly before 6.20 pm.

7. In cross examination the victim said she received a threatening phone call at around 5 o’clock and there were numerous phone calls coming in.  It was at 5.30 or some time after the last phone call that she looked outside.  She later said that was about a quarter to six but she did not look at her watch.  She said it was not that long after that she received the last phone call from Mr Zeytoun to say that he was in the car park and she went out.  She could see his face fairly clearly “and he didn’t appear happy”.  She said he was looking “with a look of hatred, of one day he wanted to hurt me”.

8. The victim said she only had two telephone conversations with Mr Zeytoun between 5 pm and 5.30 pm.  The telephone at the hotel had rung numerous times but she did not want to pick it up.

9. The victim said that later that evening the victim saw Mr Zeytoun drive down North Terrace, while Constable Garlik and Suggate were taking her statement.  That was after they started the statement.  She was outside having a cigarette.  She could not remember what time that was, but the objective evidence indicates it had to be after 6.30 pm.

10. Constable Garlik gave evidence that he had arrived at the Royal Hotel at Kent Town at about 6.20 pm.  He gave evidence of his activities there.  Later, he drove to the Royal Hotel at Torrensville.  He said it took no more than ten minutes.  The white car used by Mr Zeytoun was parked across the road from the Royal Hotel at Torrensville, but it disappeared while the police officers were elsewhere seeking further instructions.  The police officers then drove along Henley Beach Road to Mr Zeytoun’s home on Marion Road.  That took about five minutes.  They spoke with Mr Zeytoun and later interviewed him at the City Watchhouse. 

11. When interviewed by Constable Garlik at 6.30 pm on 30 August 2002, the victim said that she had seen Mr Zeytoun in the car park at approximately 5.45 pm.

12. She also stated that she had seen Mr Zeytoun seated in her vehicle just after 6 o’clock at the Royal Hotel at Kent Town.

13. In his interview with Mr Zeytoun, Constable Garlik suggested that the victim had seen him in the car park just after 6 o’clock.  Constable Garlik said the noting of the exact time may have been an error on his part.

14. In a statement subsequently taken on 31 August 2002, the victim stated, “I think it may have been about 5.45 pm”.

15. As I mentioned, Mr Zeytoun gave evidence.  He said he was not at the Royal Hotel, Kent Town, at any time on 30 August 2002.

16. The telephone log shows that Mr Zeytoun had telephoned the Royal Hotel, Kent Town, at 12.15 am and 3.45 am, in the early hours of 30 August, from his home.  He then made fourteen telephone calls from his home between 3.30 pm and just before 5 o’clock in the afternoon.  He made two telephone calls on his mobile phone at 1726 and 1727 and he then made thirteen telephone calls to the Royal Hotel at Kent Town from the public telephone in the bistro of the Royal Hotel at Torrensville between 1735 and 1815.

17. If the log is correct, Mr Zeytoun could not have been in the car park of the Royal Hotel at Kent Town at approximately 5.30 pm or 5.45 pm.  Similarly, Mr Zeytoun could not have been in the car park at 6 pm because he made a series of phone calls from Torrensville between 5.35 and 6.15 pm.

18. After perusing the log the Crown argued that Mr Zeytoun was in the car park at the Kent Town Hotel in the interval between the call made from Marion Road at 1657 and the call from the Royal Hotel, Torrensville at 17.35.  That argument does not conform with the evidence of the victim.

19. Given that the phone log indicates that Mr Zeytoun was at Marion Road until 16.58.54 and was in the bistro of the Royal Hotel at Torrensville at 17.35.05, a question which arises is whether he had sufficient time to travel from his home on Marion Road to the Royal Hotel at Kent Town and be parked in the car park of the Royal Hotel at the time when the Crown claims that he was there.  Later that evening Constable Garlik took about ten minutes to travel in the other direction from the Royal Hotel at Kent Town to the Royal Hotel at Torrensville.  Additional time would be taken in travelling between Marion Road and Torrensville.

20. If the offending telephone calls were made from a mobile phone at 1726 or 1727, there would have been a period of about 27 minutes during which Mr Zeytoun could have travelled from his home on Marion Road to the car park of the Royal Hotel at Kent Town to make a phone call.  However, there was only about seven and a half minutes to return from the car park of the Royal Hotel, Kent Town back to the bistro at the Royal Hotel, Torrensville.  The two telephone calls from the mobile phone of 1726 and 1727 only lasted two seconds and four seconds respectively.  Those calls were not long enough to be the offensive calls.

21. The telephone log records a number of incoming calls at the Royal Hotel, Kent Town from the Royal Hotel, Torrensville after 17.35.05.  There are several calls which could be the offending calls.  Specifically, at 17.47.48, that is at about a quarter to six when the victim said she saw Mr Zeytoun in the car park, there was one call which lasted 575 seconds.  At about 6 o’clock there was another call lasting 92 seconds followed by further calls of 36, 35, 62 and 35 seconds, within the next seven minutes.

22. Mr Zeytoun could not have been in the car park of Torrensville between 17.35.05 and 18.15.34, but he did make a number of calls from Torrensville between 1735 and 1815 which could have been the offending calls.

23. In cross examination it was put to Mr Zeytoun that he was in the car park of the hotel at Kent Town between 6.15 pm and 6.30 pm.  Presumably that was put on instructions.  That timetable is also inconsistent with the telephone log.

24. On the basis of the telephone log I find that between 1735 and 1815 Mr Zeytoun was in the Royal Hotel at Torrensville.  I find that from at least 1536 to 1657 and 18 seconds past 96 seconds, that is, until 16.58.59 he was at his home on Marion Road.

25. The allegation that there was a window of opportunity for Mr Zeytoun to make the relevant call between 5 pm and 5.30 pm is not supported by the other evidence, in particular, the evidence of the calls from the mobile telephone.  The evidence of Constable Garlik makes it unlikely that the timetable suggested by the prosecution is accurate and that timetable is not supported by the evidence of the victim.

26. In all the circumstances, I am not satisfied beyond reasonable doubt that Mr Zeytoun was in the car park on the 30 August 2002.  Specifically, he could not have been in the car park as the victim said he was at any time between 5.35 and 6.15, because he made telephone calls from the Royal Hotel at Torrensville at about that time.  Even if one allows for the fact that the victim cannot be expected to be precise with the times, the log of the telephone calls does not support any of the alternatives suggested by her.

27. In the circumstances, I find and therefore propose to sentence Mr Zeytoun on the basis that he did make the offending telephone calls but was not present in the car park of the Royal Hotel at Kent Town on the evening of 30 August 2002.