Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Aiman SALAMI [2013] NSWCCA 96
• Hearing dates: Wednesday 3 April 2013
• Decision date: 03 April 2013
• Before: Macfarlan JA; Price J; RS Hulme AJ

Decision

1 Appeal allowed.

2 Vacate the decision or ruling made by his Honour Judge Armitage excluding evidence of recorded telephone calls between the accused and Jaziba El Mazri and the translation of those recorded calls by Joseph Abdo pursuant to s 137 of the Evidence Act 1995.

3 Order that the evidence of the telephone calls between the accused and Jaziba El Mazri is admissible.

4 Order that the evidence of the translation of those recorded calls into the English language by Joseph Abdo is admissible.

• Catchwords: Evidence of intent - presumption of continuance - Criminal Appeal Act 1912, s5F
• Legislation Cited: Criminal Appeal Act 1912, s 5F(3)(a); Evidence Act 1995, s 137
• Texts Cited: Phipson on Evidence, 17th Ed., para 7/20; Cross on Evidence, Australian Ed., para 1125
• Category: Principal judgment
• Parties: Appellant - Regina; Respondent - Aiman Salami
• Representation: Counsel: Appellant - J Trevallion; Respondent - S Dowling; Solicitors: Appellant - Director of Public Prosecutions; Respondent - Archbold Legal Solutions
• File Number(s): CCA 2011/166372

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-08-29 00:00:00
• Before: Armitage DCJ
• File Number(s): 2011/166372

Judgment

1 MACFARLAN JA: I agree with RS Hulme AJ.

2 PRICE J: I also agree with RS Hulme AJ.

3 RS HULME AJ: The Director of Public Prosecutions appeals pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 against a decision of Armitage DCJ to exclude evidence of a recorded telephone call made between the respondent and the complainant at about the time of the events the subject of charges brought against the respondent. In summary, the first of those charges was that on 19 May 2011 the respondent entered the dwelling house of Jaziba El Mazri with intent to commit a serious indictable offence therein, namely to intimidate the said Jaziba El Mazri with the intention of causing her to fear physical or mental harm and in circumstances of aggravation in that he was armed with an offensive weapon, namely a knife.

4 The second count of the indictment alleges an offence in similar terms but excluding the element of aggravation. Judge Armitage's ruling was made during the course of the Crown opening. In the circumstances to appreciate the context in which his Honour's decision was made it is necessary to have regard to what Ms El Mazri said in her police statement. So far as is relevant, her statement proceeds: -

"12. I then found my other mobile phone and set it up to use it as a voice recorder so that I could record what Aiman said to me if he called me again.

13. About 4:51pm, my phone rang again from a private number. I answered the phone and I could hear Aiman talking. I held up my other mobile phone to the phone that Aiman had called me on. I used this phone to record what Aiman was saying. I didn't say anything back to Aiman but he continued to yell and talk into the phone for a number of minutes. The phone cut out several times during the call but he called back and I answered and continued recording.

14. During this conversation, Aiman said that he wanted to "ruin me", that he wanted to "humiliate me" and he called me a "slut" and a "whore." He said lots of things to me and repeated himself a lot.

15. While I was still sitting on my bed recording this phone conversation, I saw Aiman walk into my bedroom. Aiman was still holding his phone to his ear and talking into it He put his phone away into his pocket. When I saw Aiman in my house and in my room I was shocked, frightened and scared. I hid my two mobile phones underneath a pillow on my bed so that he didn't know I had been recording him.

16. He started yelling and screaming.

17. Aiman put one of his hands into his pants pockets and pulled out a small object made of wood. He flicked his hand away from his body and a knife blade came out of the handle. The knife had a metal blade about 10 centimetres long. He held the knife at about head height with the knife pointing towards the roof. I was sitting in the middle of my bed and Aiman was about one metre away from me.

He said: "I swear to god, if you don't cancel the AVO I will slaughter you with this knife. If you don't cancel the AVO today, I will slaughter you because I'm departing Australia to Lebanon tomorrow." ·

18. At this stage I was so frightened that I was unable to speak and say anything. Aiman started to yell at me and kept saying the same things that he had said to me on the phone. He called me a "slut" and a "whore" again and said that he was going to take my eyes out. He kept telling me to cancel that AVO against him or he would "slaughter me." After about three minutes, Aiman ran out of the house through the front door. I didn't see where he went after he left the house.

5 The phone conversation was in Arabic. The respondent concedes that it is his voice to be heard on a recording of the telephone call. An expert interpreter certificate asserts that translated into English what the respondent said was as follows: -

"The male voice said: "I will fucking screw you. (inaudible) I don't give a dick about you. (inaudible) I will pluck your eyes out and put them between your legs, (inaudible) Answer or I will scandalise you. Don't you want to answer? One, two (inaudible). If I say five and you dont answer, I will (inaudible). One, two, three, four, five... (inaudible) Lay off my dick. (inaudibte) Whore. (Inaudible) Come to me, at least I know you a bit You know what I mean, (inaudible) Is that how you want to be insulted? Go and let your neighbour hear all that (inaudible) No woman fools even my dick, (inaudible) Isn't your fee $150? Isn't it $150 a session? Fuck those who gave birth to you.""

6 Before Judge Armitage counsel for the accused asserted that there was a dispute as to the correctness of this interpretation although he did not specify the suggested differences. Judge Armitage excluded evidence of the call relying on s 137 of the Evidence Act which provides: -

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

7 His Honour's reasoning for the decision at which he arrived seems to be as follows. I said "seems" because his Honour did not expressly state that he accepted the propositions contained in the second of the paragraphs quoted below. However neither did his Honour reject them and the passages quoted set out the totality of his Honour's reasoning for his decision.

"The way to resolve the argument I think is to attend carefully to the fact that the telephone call was made, except for the last few seconds of it, at a time when the accused was outside the complainant's premises, again taking the Crown's case at its highest. The point of Mr Murray's objection really is this, there is a danger that the jury will not properly attend to any interpretation difficulties arising from the competing renderings of the content of the phone call from Arabic into English and will not attend properly to the credibility of the complainant in the allegation she makes or will make in the trial in para 17 and 18 of her statement, if the telephone call is admitted, and that the jury will simply conclude as set out above that the accused is guilty of the offence because he intended to cause the complainant to fear physical or mental harm wholly and solely on the basis of the contents of the telephone call."

"The contents of the telephone call are incapable of proving conduct of the accused inside the premises, that is to say "therein" in terms of counts 1 and 2 in the indictment because apart from the last few seconds of the telephone call it occurred outside the premises. The danger is that the jury will substitute that evidence for evidence of the complainant's intent constituted by para 17 and 18 of her statement which she will give in the trial from which the jury may infer what the accused's intent was inside the premises."

8 With respect to his Honour the passage display a number of errors. In the first place there was nothing except a bare theoretical possibility to justify the statement that there was a danger the jury would not properly attend to any interpretation difficulties, a fortiori is this so as his Honour was not even informed to the extent of any conflict between the interpreted versions. Secondly, there was nothing to suggest that any interpretation difficulties would distract the jury from giving proper attention to the credibility of the complainant. Thirdly, there was nothing to suggest that the jury would simply conclude that the respondent was guilty because of an intention reflected in the content of the phone call. Fourthly, his Honour erred in concluding that the content of the phone call was incapable of proving the conduct of the respondent inside the premises.

9 The existence or happening of any event or intention is inherently capable of being proved by circumstances contemporaneous with it and by circumstances occurring shortly before or shortly afterwards. Of course, other things being equal, the greater the time difference between those circumstances and the time at which judgment is to be made, the weaker the evidence of those circumstances may be but to say as his Honour, in effect, did that statements of the respondent minutes and seconds and indeed contemporaneously with his entry into the premises are incapable of proving conduct of the respondent inside the premises, is simply wrong. The presumption of continuance, (see Phipson on Evidence, 17th Ed., para 7/20; Cross on Evidence, Australian Ed., para 1125), is obviously relevant in this context.

10 Furthermore, the crucial question was not what the respondent's conduct inside the premises was but rather what was his intention at the time of entering. His statements made during the phone conversation were at least as relevant to that crucial question as what he said once he was inside. Also of significance is the fact that the complainant seems to have been the only witness to the events which occurred while the respondent was in her house. As such one may anticipate that evidence would be the subject of significant challenge.

11 Insofar as the respondent's statements and the phone call accord with the complainant's evidence as to his actions in the premises, those statements provided strong corroboration of her evidence. In these circumstances, particularly in the absence of any evidence as to the respects in which its interpretation is said to be wrong, it could not be said that the probative value of the recording was other than high. There was no basis upon which its submission could have been said to create the danger of unfair prejudice to the respondent and his Honour erred in his decision to exclude it.

12 Although no point was taken on the terms of s 5(3)(a) of the Criminal Appeal Act which permits an appeal such as occurred in this case, only if the decision or ruling "eliminates or substantially weakens" the prosecution case. It follows from what I have said that his Honour's ruling does so. The appeal should be allowed. The orders sought by the Crown were

1 An order vacating the decision or ruling made by his Honour Judge Armitage.

2 An order that the evidence of the telephone calls between the accused and Jaziba El Mazri is admissible.

3 An order that the evidence of the translation of those recorded calls into the English language by Joseph Abdo is admissible.

4 Such further or other order as this Honourable Court thinks fit.

13 In addition to allowing the appeal it is appropriate that orders 1 to 3 that I have just quoted be made.

14 MACFARLAN JA: The orders of the Court will be

1 Appeal allowed.

2 Vacate the decision or ruling made by his Honour Judge Armitage excluding evidence of recorded telephone calls between the accused and Jaziba El Mazri and the translation of those recorded calls by Joseph Abdo pursuant to s 137 of the Evidence Act 1995.

3 Order that the evidence of the telephone calls between the accused and Jaziba El Mazri is admissible.

4 Order that the evidence of the translation of those recorded calls into the English language by Joseph Abdo is admissible.

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Amendments

01 May 2013 - Both paras became indented quotations for para 7.
Amended paragraphs: Former paras 8 and 9

Decision last updated: 01 May 2013