R v A2; R v KM; R v Vaziri (No. 6) [2015] NSWSC 1426

Supreme Court New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 6) [2015] NSWSC 1426 Hearing dates: 24 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Evidence not admitted Catchwords: CRIMINAL LAW - admissibility of evidence - objection to tender of answers given by persons as part of police canvass - evidence not admitted Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: --- Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused) Representation: Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM)

Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused) File Number(s): 2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri) Publication restriction: ---

Judgment 1. JOHNSON J: Objection has been taken on behalf of the Accused Vaziri to the Crown adducing evidence of a canvass of members of the Dawoodi Bohra community carried out by police on and after 10 September 2012. 2. The Crown seeks to lead against the Accused Vaziri, evidence of a canvass undertaken by investigating police on 10 September 2012 and on some dates after, up to 25 September 2012. On those days, police distributed to members of the Dawoodi Bohra community in Sydney an envelope containing written material concerning female genital mutilation ("FGM"), including a letter from police, a Gujarati translation of the letter and other material, including Department of Health brochures which sought to explain the nature and effect of the offence under s.45 Crimes Act 1900 (MFI14). 3. As part of the canvass, police also enquired of members of the Dawoodi Bohra community in respect of their knowledge or understanding of "khatna" or FGM in that community (MFI28, Annexure A). The responses to that question are set out in statements of police officers which are before the Court on this application (MFI26, paragraph 5; MFI37, Annexure A). 4. The Crown seeks to tender the answers provided in response to the questions asked about FGM as evidence against the Accused Vaziri. It is said that the recorded telephone conversations involving the Accused Vaziri disclose an intention on his part to have members of the Dawoodi Bohra community informed that they should say that they have no knowledge of FGM in the Sydney community. The Crown contends that the Accused Vaziri made statements indicative of this approach in a number of conversations recorded under telephone interception warrant ( Exhibit AA, Tabs 30, 35, 39, 41, 43, 44 and 46). 5. The Crown argues that the answers given may be taken to have been given as a result of the alleged intervention by the Accused Vaziri as to what members of the Dawoodi Bohra community should say to the police. The Crown submits that this material is relevant to the charges brought against the Accused Vaziri of being an accessory after the fact to the offences alleged against the other Accused persons. 6. Senior Counsel for the Accused Vaziri objects to the tender of this material upon a number of bases, including its presently inadmissible form and relevance. 7. The recorded conversations involving the Accused Vaziri are already in evidence before the jury. It will be open to the Crown to make submissions to the jury by reference to that evidence. 8. However, there are some fundamental difficulties with the admissibility of the canvass material, certainly in its present form. What the Crown has at present is a pro forma question, and the police officer's note of the response provided to that question by a person or persons in a particular household. 9. There is no statement made by the person who is said to have provided the particular answer, nor any signed adoption. The bare form of the answer does not indicate that the Accused Vaziri played any part in the giving of a particular answer. The answers extend from "are not aware that it happened in Australia", "heard of it happening but only overseas" (or variations along those lines) to "have to do it as part of their culture/religion". 10. In circumstances where the Crown seeks to adduce the questions and answers as evidence of facts, and as evidence supporting an inference that the Accused Vaziri was responsible for the particular answer or answers (presumably being falsely given), the evidence in its present form falls far short of satisfying the requirements for admissibility under the Evidence Act 1995. In effect, the Crown seeks to adduce what is presently hearsay evidence of these matters. 11. I do not propose to admit the evidence of the questions and answers said to have been provided in the course of the canvass. 12. This ruling is made upon the basis of the material furnished to the Court, which did not include any statement or proof of evidence of a potential Crown witness from the Dawoodi Bohra community who could give evidence on this issue. The present ruling relates only to the material which seeks to put this material before the Court in a hearsay manner for a non-hearsay purpose. I decline to admit this evidence.