Citation: R v Saleh Khodr [2007] NSWDC 397
Court: District Court of New South Wales
Date: 4 April 2007
Judge(s): Cogswell SC DCJ
Background
The accused, Saleh Khodr, was facing a jury trial in the District Court. Through his counsel, he indicated he intended to lead character evidence in two specific respects: that he was not a violent person and that he was an honest person. The Crown did not contest the non-violence limb.
The Crown did, however, seek to challenge the honesty limb. In a voir dire (a preliminary hearing conducted in the absence of the jury to determine the admissibility of evidence), the Crown tendered statements from two witnesses that it argued undermined any assertion that the accused was an honest person.
Those statements described events in which the accused had, through an intermediary and then directly, attempted to make contact with a prosecution witness, Hussein El Shemmari, shortly before the trial. The Crown argued this conduct was inconsistent with a character for honesty.
Legal Issues
- Whether the accused could lead evidence of good character limited to specific traits, namely non-violence and honesty.
- Whether the Crown's evidence, showing the accused had attempted to contact a prosecution witness before trial, was sufficiently relevant to rebut an assertion of good character for honesty.
Decision
Cogswell SC DCJ accepted that the evidence tendered on the voir dire did support the conclusion that the accused had attempted to contact the prosecution witness, Mr El Shemmari. The contact occurred through an intermediary at a shop in Auburn and then by a direct phone call from the accused shortly before court proceedings were due to commence.
However, the judge found nothing in the evidence to suggest the contact was inappropriate or improper. There was no evidence of what the accused specifically intended to discuss, and no conversation took place because the witness did not attend the arranged meeting. The judge characterised the attempt as perhaps questionable or even foolish, in that it was open to misinterpretation, but not as conduct bearing on the accused's honesty.
On the question of relevance, the court concluded that the Crown could not construct a submission from this evidence that would properly affect an assertion that the accused was an honest person. The evidence was therefore held to be not sufficiently relevant to the honesty character trait the accused sought to establish.
Orders Made
No formal orders were made in this decision. The judgment constitutes a ruling on the admissibility of proposed Crown evidence during a voir dire, with the court indicating it would reject the evidence if tendered.
Key Takeaways
- The District Court confirmed that an accused may elect to lead character evidence limited to specific traits, such as honesty or non-violence, rather than advancing general good character.
- Relevance is the critical threshold: evidence tendered to rebut a character assertion must actually bear on the particular character trait in issue, not merely raise suspicion about the accused's conduct generally.
- Attempting to contact a prosecution witness before trial does not, without more, constitute evidence of dishonesty. The court drew a distinction between conduct that is questionable and conduct that goes to a person's honesty.
- Where no improper purpose or conversation could be established from the evidence, the court held the Crown's proposed rebuttal evidence fell short of the relevance threshold required for admission.
- The High Court's decision in TKWJ v The Queen (2002) 212 CLR 124 was identified as the governing authority on the nature of applications to challenge accused character evidence, though the court did not need to examine its nuances given the relevance ruling.
Legislation and Cases Referenced
Cases:
- TKWJ v The Queen (2002) 212 CLR 124 (High Court of Australia)
Legislation:
No specific legislation was cited in the judgment.