R v Saleh KHODR [2007] NSWDC 393

New South Wales District Court

CITATION: R v Saleh KHODR [2007] NSWDC 393

JUDGMENT DATE: 24 July 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I will allow the witness to be called.

CATCHWORDS: CRIMINAL LAW - jury trial - application to call expert witness - objection pursuant to s 55 of the Evidence Act 1995 - relevance

LEGISLATION CITED: Evidence Act 1995

PARTIES: Regina Saleh Khodr

FILE NUMBER(S): 2006/21/0047

COUNSEL: Mr Calvert for the Director of Public Prosecutions Dr Webb for Mr Khodr

JUDGMENT

1. Counsel for the accused Dr Webb wishes to call as a witness Mr Karakira, an expert interpreter in Arabic. He has tendered a transcript of his evidence given in a previous trial. Mr Karakira is a very highly qualified English to Arabic interpreter and is in fact chairman of the board of examiners for interpreters.

2. Mr Calvert for the crown objects to that evidence. The basis of his objection is relevance under s 55 of the Evidence Act 1995. He has two arguments. The first is that the evidence of Mr Karakira takes the evidence available to the jury no further than it has already been covered. The second basis is that Mr Karakira's evidence is at the highest theoretical and he was not present at the time that the two statements were taken.

3. In response Dr Webb says that there are two bases for the relevance of Mr Karakira's evidence. One basis is on the pronunciation of the words Abdul Kafer K-A-F-E-R, or Abdul Ghafar, G-H-A-F-A-R, which became an issue in these proceedings. The statement of an essential Crown witness, Mr Al Shemmari, records in writing the words "Abdul Kafer". Mr Al Shemmari in evidence says that he uttered the words, "Abdul Ghafar". Dr Webb has cross-examined him about the difference and raised an issue as to his credibility. The second basis for Dr Webb arguing relevance is based upon the meaning of Abdul Kafer, which he will argue is a derogatory expression in Arabic. Dr Webb would argue that the witness Mr Al Shemmari deliberately chose to name the person alleged to have assaulted him as Abdul Kafer because it was a derogatory term. Mr Calvert inquires whether that proposition was put to Mr Al Shemmari as a witness by Dr Webb, and Dr Webb is looking at the transcript to see whether he did or not.