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Court of Criminal Appeal 3 April 2013

R v Aiman SALAMI

[2013] NSWCCA 96

Assault & violencePublic order & justice offences
EVIDENCE OF INTENT PRESUMPTION OF CONTINUANCE CRIMINAL APPEAL ACT 1912, S5F

Citation: R v Aiman Salami [2013] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 3 April 2013
Judges: Macfarlan JA, Price J, RS Hulme AJ

Background

The respondent faced two charges arising from an incident on 19 May 2011: entering a dwelling house with intent to intimidate the complainant, with one count including aggravation on the basis that he was armed with a knife. The prosecution sought to tender a recording of a telephone call the respondent made to the complainant shortly before, and continuing right up to the moment of, his entry into her home. The call, conducted in Arabic and accompanied by an expert interpreter's translation, contained threatening and abusive language.

The trial judge, Armitage DCJ, excluded the recording during the Crown opening, applying s 137 of the Evidence Act 1995. His Honour reasoned that because the call was made largely from outside the premises, its contents were incapable of proving the respondent's conduct inside, and that its admission risked distracting the jury from interpretation disputes and the complainant's credibility.

The Director of Public Prosecutions appealed under s 5F(3)(a) of the Criminal Appeal Act 1912, which permits a Crown appeal against a ruling that eliminates or substantially weakens the prosecution case.

  • Whether the trial judge correctly applied s 137 of the Evidence Act 1995 in concluding that the probative value of the telephone recording was outweighed by the danger of unfair prejudice to the respondent.
  • Whether statements made by the respondent on the phone, immediately before entering the premises, were capable of proving his intent at the time of entry.
  • Whether the ruling eliminated or substantially weakened the prosecution case so as to satisfy the threshold for a Crown appeal under s 5F(3)(a) of the Criminal Appeal Act 1912.

Decision

RS Hulme AJ (with whom Macfarlan JA and Price J agreed) identified several errors in the trial judge's reasoning. There was no evidential foundation, beyond bare theoretical possibility, for the concern that the jury would be distracted by interpretation difficulties, particularly given that no specific conflict between translations had been identified to the court. Similarly, nothing supported the suggestion that such difficulties would undermine proper attention to the complainant's credibility.

The Court rejected the trial judge's conclusion that the phone call was incapable of proving conduct inside the premises. The timing of the call placed it contemporaneous with, and immediately preceding, the respondent's entry into the dwelling. Relying on the presumption of continuance, RS Hulme AJ held that evidence of a person's state of mind or intention at a given moment is inherently capable of being proved by closely contemporaneous circumstances. The critical question was not what the respondent did inside but what his intention was at the moment of entry, and the contents of the phone call were directly relevant to that question.

The Court further noted the high probative value of the recording. It corroborated the complainant, who appeared to be the only witness to the events inside the house, and the translation had not been the subject of any particularised challenge. With no identified basis for unfair prejudice, the s 137 balance could not properly be resolved against admission. The ruling eliminating this evidence substantially weakened the prosecution case, satisfying the threshold for the Crown appeal.

Orders Made

  • Appeal allowed.
  • The ruling by Armitage DCJ excluding the recorded telephone calls and their translation was vacated.
  • The telephone calls between the accused and the complainant declared admissible.
  • The English translation of those calls by the expert interpreter declared admissible.

Key Takeaways

  • Under s 137 of the Evidence Act 1995, a court must refuse to admit prosecution evidence only where its probative value is genuinely outweighed by the danger of unfair prejudice; bare or theoretical possibilities of prejudice are insufficient to justify exclusion.
  • The presumption of continuance supports the use of closely contemporaneous evidence to prove a person's state of mind or intention, even where that evidence arises from events occurring slightly before or outside the precise location in question.
  • Where the crucial issue is intent at the time of entry into premises, statements made by the accused during a phone call in the moments immediately before and during that entry are capable of proving that intent.
  • Strong corroborative evidence carrying high probative value will not readily satisfy the unfair prejudice limb of s 137, particularly in the absence of any particularised basis for the suggested prejudice.
  • A Crown appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 requires that the impugned ruling eliminate or substantially weaken the prosecution case; the Court of Criminal Appeal confirmed that exclusion of a recording providing the sole corroboration for the main prosecution witness met that threshold.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Evidence Act 1995 (NSW), s 137

Secondary Sources:
- Phipson on Evidence, 17th ed, para 7/20 (presumption of continuance)
- Cross on Evidence (Australian ed), para 1125 (presumption of continuance)