Citation: R v Saleh Khodr [2007] NSWDC 393
Court: District Court of New South Wales
Date: 24 July 2007
Judge(s): Cogswell SC DCJ
Background
The accused faced a jury trial in the NSW District Court. A central issue turned on the identity of an alleged assailant, as recorded in the statement of a key Crown witness, Mr Al Shemmari. That statement recorded the name "Abdul Kafer," yet Mr Al Shemmari gave oral evidence that he had in fact said "Abdul Ghafar," a phonetically distinct Arabic name.
Defence counsel sought to call Mr Karakira, a highly credentialled Arabic interpreter and chairman of the board of examiners for interpreters, to give expert evidence. The Crown objected, arguing the proposed evidence lacked sufficient relevance under section 55 of the Evidence Act 1995.
The dispute narrowed to two questions: first, whether Mr Karakira's evidence on the pronunciation difference between the two names added anything beyond what an existing interpreter witness (Ms Gindy, a level 2 interpreter) had already said; and second, whether Mr Karakira could give evidence about the meaning of "Abdul Kafer" as a potentially derogatory Arabic expression.
Legal Issues
- Whether Mr Karakira's proposed expert evidence met the relevance threshold under section 55 of the Evidence Act 1995
- Whether that evidence was rendered superfluous by the existing evidence of Ms Gindy on the same pronunciation issue
- Whether Mr Karakira could give evidence on the meaning of "Abdul Kafer," including whether it carried a derogatory connotation in Arabic
Decision
The court rejected the Crown's argument that Mr Karakira's evidence was insufficiently relevant because it merely duplicated Ms Gindy's evidence. Cogswell SC DCJ held that defence counsel is entitled to call a witness to add weight to the accused's case on a matter relevant to the credibility of the principal Crown witness, even where the underlying factual issue is not in dispute.
The court noted the significant difference in qualifications between the two interpreters. Mr Karakira held a level 3 accreditation and had in fact overseen the examination process through which Ms Gindy obtained her level 2 qualification. That distinction supported the view that his evidence carried independent evidentiary value beyond mere repetition.
On the second issue, the court reserved its position. Cogswell SC DCJ declined to rule immediately on whether Mr Karakira could give evidence about the derogatory meaning of "Abdul Kafer." That question was held over pending clarification of whether defence counsel had put the relevant proposition to Mr Al Shemmari during cross-examination.
Orders Made
- The court allowed the defence to call Mr Karakira as a witness, subject to the limitations stated (relevance at that stage confined to the pronunciation question; the meaning question reserved).
Key Takeaways
- The District Court confirmed that a party may call an expert witness to bolster its case on a relevant issue even where another witness has already addressed that issue without contradiction, provided the evidence meets the relevance threshold under section 55 of the Evidence Act 1995.
- Relevance to the credibility of a key opposing witness can be sufficient to satisfy section 55, even where the point the expert addresses is not formally disputed.
- A difference in professional qualifications between two expert witnesses can support the admission of the more senior expert's evidence, rather than treating it as mere surplusage.
- The court deferred ruling on the admissibility of opinion evidence about the meaning of a name until it was established whether the proposition had been put to the relevant witness in cross-examination, signalling the procedural significance of that foundation step.
- No wastage of court time was treated as a material factor weighing against admissibility where the defence case was short and the witness's evidence was confined in scope.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 55 (relevance)
Cases cited: None identified in the judgment.