R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306

Supreme Court New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306 Hearing dates: 17 and 18 June 2015 Date of orders: 06 August 2015 Decision date: 08 September 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. For the purpose of s.13 Evidence Act 1995, I am satisfied that C2 is competent to give sworn evidence at the trial of the Accused persons. 2. I overrule the objection under s.18 Evidence Act 1995 by C1 and C2 to giving evidence at the trial of the Accused persons (in particular, A2). 3. Given the conclusion reached concerning the s.18 objections, it is not strictly necessary to express a view concerning the Crown application under s.65 Evidence Act 1995 (although a brief view will be expressed on this issue). Catchwords: CRIMINAL LAW – pre-trial application – competence and compellability of witnesses (ss.13 and 18 Evidence Act 1995) – Accused persons charged with female genital mutilation offences against two girls (C1 and C2) – mother of C1 and C2 is an Accused person – whether C2 is competent to give evidence at trial – C2 able to understand the difference between truth and lie and engage with questions concerning facts – C2 competent to give sworn evidence at trial – whether C1 and/or C2 are compellable to give evidence at trial – likelihood of psychological harm and harm to relationship if C1 and/or C2 called to give evidence – factors relevant to balancing exercise under s.18(6) - nature and extent of harm does not outweigh the desirability of C1 and C2 giving evidence – application declined – operation of s.65 Evidence Act 1995 considered in obiter remarks Legislation Cited: Crimes (Female Genital Mutilation) Amendment Act 1994 Crimes Act 1900 Crimes Amendment (Female Genital Mutilation) Act 2014 Criminal Procedure Act 1986 Evidence Act 1995 Surveillance Devices Act 2008 Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397; 204 A Crim R 306 Fletcher v R [2015] VSCA 146 LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016; 81 NSWLR 551 Mindshare Communications Limited v Orleans Investments Pty Limited [2007] NSWSC 976 MK v R [2014] NSWCCA 274 R v BO (No. 2) [2012] NSWDC 195; 15 DCLR (NSW) 317 R v RAG [2006] NSWCCA 343 RJ v R [2010] NSWCCA 263; 208 A Crim R 174 Sanderson v Rabuntja [2014] NTSC 13 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused) Representation: Counsel: Ms N Noman SC (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM) Mr PJ Gow (C1 and C2)