Supreme Court New South Wales Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491 Hearing dates: 9 October 2015 Date of orders: 09 October 2015 Decision date: 09 October 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Leave granted under s.38 Evidence Act 1995 for Crown to cross-examine A5 concerning the following topics: (a) what events occurred in the bedroom on the occasions that A5 has described when C1 and C2 were lying on beds; (b) the knowledge of the witness of the term "khatna" or "khatanat" and its use concerning girls, including C1 and C2; (c) evidence concerning the use of the term "checkup" and the role of KM. Catchwords: CRIMINAL LAW - application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 - requirements of s.38(1)(a), (b) and (c) satisfied concerning certain topics - discretionary factors under s.192 considered - no basis to exclude otherwise admissible evidence under s.137 Evidence Act 1995 - leave granted Legislation Cited: Evidence Act 1995 Cases Cited: Doyle v R [2014] NSWCCA 4 Kanaan v R [2006] NSWCCA 109 R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264 R v A2; R v KM; R v Vaziri (No. 7) [2015] NSWSC 1427 R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472 R v Hogan [2001] NSWCCA 292 R v Le [2002] NSWCCA 186; 54 NSWLR 474 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 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: The Crown has made application under s.38 Evidence Act 1995 for leave to cross-examine the Crown witness, A5, with respect to a number of topics. Applicable Principles 1. The principles to be applied on a s.38 application were referred to in R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472 ("R v A2 (No. 8)") at [16]. The terms of ss.38 and 192 Evidence Act 1995 must be considered. 2. In addition to the principles referred to in R v A2 (No. 8) concerning s.38, the following additional proposition should be noted. 3. The Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Kanaan v R [2006] NSWCCA 109 at [80]. Where the Crown proposes to invite the jury to disbelieve part of the evidence of a Crown witness, the mechanism available under s.38 may be utilised appropriately: Kanaan v R at [80]-[85]. 4. It is necessary to keep in mind, as well, the cautionary statements made in a number of cases, including R v Hogan [2001] NSWCCA 292 at [5] and [76] and R v Le [2002] NSWCCA 186; 54 NSWLR 474 at 492-493 [89]. As I noted in R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 at [17]: "The Court should be alert to the risk of being sidetracked into collateral issues by way of grant of leave under s.38." 1. I bear in mind, as well, what was said by the Court of Criminal Appeal in R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 at 462-463 [72]-[75]. I note, as well, the statement in that case by Ipp JA at 464 [81]-[83], that a grant of leave may permit a truer picture of the situation to be presented to a jury than would be the case if the Crown had been refused leave to cross-examine. His Honour noted that this is the very purpose underlying s.38. 2. Submissions have been made by Mr Bouveng by reference to s.137 Evidence Act 1995. In approaching those submissions, I will keep in mind what I said in R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264 at [80]-[82]. 3. I bear in mind, as well, in the context of s.38, what was said by Bathurst CJ (Price and Campbell JJ agreeing) in Doyle v R [2014] NSWCCA 4 at [293], that "the use of the word 'about' in the chapeau to s 38(1) makes it clear that leave may be granted to not only conduct cross-examination specifically directed to one of the subjects referred to in s 38(1), but also to the probability of establishing a factual state of affairs in relation to the matters contended for by the party conducting the cross-examination". Issues in Dispute at Trial 1. It is appropriate to note the relatively narrow issues in dispute in this trial. 2. In R v A2; R v KM; R v Vaziri (No. 7) [2015] NSWSC 1427, after a reference to the opening addresses by counsel for the Accused persons, I said at [21]-[22]: "21 There is no dispute that at places and times alleged in the indictment the Accused, [KM], used a metal instrument to come into physical contact with the genital area of each of [C1] and [C2]. On each occasion the Accused, [A2], was present and she had requested the Accused, [KM], to so act. Each girl was lying on a bed naked from the waist down during the event. 22 The issues in dispute may be summarised as follows. The Crown says that, on each occasion, what was happening was a form of FGM where some injury was caused to the clitoris of each child. The defence says that this was a form of religious or cultural ceremony, where metal is laid upon the child's genital area, but that it was not a form of FGM, and that no injury was caused to either child." 1. It is clear, in my view, that the issues in the trial are not only what physical acts occurred in the rooms in question with respect to each girl, but why things were being done on each occasion to each girl. An answer to the latter question will inform a response to the former question. Notice to Accused Persons 1. Section 38 requires the Court to consider, by reference to s.38(6)(a), whether the party, in this case the Crown, gave notice at the earliest opportunity of its intention to seek leave. 2. I note that the Crown, in a letter dated 12 May 2015, notified the legal representatives for the Accused persons of an intention to make an application under s.38, in the context of the evidence of A5, by reference to two recorded conversations to which further reference will be made. 3. I note, as well, that the term "checkup" was used by the witness yesterday, for the first time. The witness gave evidence at a pretrial hearing in August 2015 when that term was not used by her. I take into account that recent event in the context of the notice requirement under the Act. 4. I am satisfied, for the purpose of the Act, that the Accused persons have appropriate notice of this application. I observe, in any event, that the application was articulated by the Crown yesterday afternoon and there has been an opportunity for it to be further considered by the parties overnight. Significance of Evidence of A5 1. A5 is an important witness in this trial. Her evidence so far before the jury indicates that she was present in the relevant bedroom on the occasion when C1 (her granddaughter) was lying on a bed in A3's house at Wollongong, where A2 and KM were also present (as was at times, according to the evidence given yesterday, A3). The witness also gave evidence that she was present when C2 (another granddaughter) was lying on a bed in her parents' house at Baulkham Hills, when the Accused persons, A2 and KM, were also present. 2. A5 says that she was reading a prayer on each occasion, and did not see what was happening with the child on the bed. She said that the term "checkup" was used to describe what had happened to the children, although she said she had no further knowledge as to what was being done to either child. It was her evidence yesterday that she understood the word "khatna" to be circumcision involving boys, and only boys. The Crown Application 1. The Crown relies on s.38(1)(a),(b) and (c). It is submitted that A5 has given evidence which is unfavourable to the Crown. In this respect, the Crown points to her evidence concerning what was happening in the room on each occasion, and what she said was her own limited knowledge of that and her own understanding of the word "khatna". The Crown says that other aspects of the evidence are unfavourable as well. 2. I have noted in R v A2 (No. 8) at [16], the relatively low threshold for unfavourability. 3. The Crown relies, as well, on s.38(1)(b), namely, that it seeks to cross-examine her about a matter which she may reasonably be supposed to have knowledge about, and about which it appears to the Court that she is not, in examination-in-chief, making a genuine attempt to give evidence. Reliance in this respect is placed upon the witness' account of what she observed happening in the bedrooms on each occasion, and what she understood was happening. The Crown is to submit to the jury that the evidence of A5 given yesterday on these topics ought not be accepted as a full and truthful account of what was happening to her knowledge. 4. The third aspect relied upon is under s.38(1)(c), namely, that there are prior inconsistent statements made by the witness. 5. I will return to these three topics in a moment. 6. The oral submissions made this morning have indicated areas where there was a level of acceptance by counsel for the Accused persons that some of these threshold issues are met in this case. It may be said that the argument flowed more directly to discretionary considerations. Determination 1. Firstly, I should record my satisfaction that there is a prior inconsistent statement as between the evidence given by the witness on the pretrial hearing (PT284), and as to what was said yesterday when the term "checkup" was used for the first time. 2. Next, I have formed the view that the Crown has demonstrated unfavourability, in a number of ways, and in an associated fashion has demonstrated that s.38(1)(b) is made out. In determining whether it may reasonably be supposed that the witness has knowledge, so that she is not making a genuine attempt to give evidence on certain topics, I take into account, as well, what the witness is recorded as saying in intercepted conversations which took place on 29 August 2012 (Exhibit PTK, Tab 6) and 30 August 2012 (Exhibit PTK, Tab 15). 3. I have already mentioned that the witness said yesterday that the word "khatna" related to circumcision in males. The witness was asked (T912): "Q. Have you ever heard of the word either 'khatna' or 'khatanat' in the context of female circumcision? A. No." 1. I note, as well, the evidence of the witness yesterday when she was asked about her knowledge of KM. She was asked (T875-876): "Q. Do you know if [KM] has a particular role within the Dawoodi Bohra community. A. No, I don't know. Q. Do you know what her occupation was before she retired? A. I'm told - I knew she was a midwife." 1. I turn to Exhibit PTK, Tab 6. This is a short telephone conversation at 4.05 pm on 29 August 2012, soon after C1 and C2 had been interviewed by investigating officials, and after that fact had been brought to the attention of their parents. In this telephone call, A1 is speaking to A5, his mother. In the course of that conversation, A1 is recorded as saying, "Mummy, we did khatanat" and "Problem has been caused because of that". A5 immediately says: "To [C2]?" With A1 replying: "Both." 1. In my view, this transcript gives rise to a foundation for a grant of leave by reference to s.38(1)(a), (b) and (c). Unfavourability and inconsistency with evidence given yesterday is demonstrated. The immediate response of the witness, where she refers to C2 in a conversation about "khatanat", is itself a foundation for a grant of leave under s.38(1)(a), (b) and (c). 2. The second transcript (Exhibit PTK, Tab 15) is a longer one. At 9.38 am the next day, 30 August 2012, there is a further conversation by telephone between A1 and A5. The conversation involves A1 informing A5 that police went to the school and interviewed C1 and C2, with the response by A5, "But why did they pick up only those two?". 3. The conversation continues as to what had been said by and to C1, and with A5 engaging in a conversation on that topic. A1 informed A5 what A1 and his wife, the Accused A2, had told the authorities - that "we are both against it" (inferentially "khatna" in the sense of female genital mutilation). There is then further discussion (at page 3) in which A5 said she received "Aunt's phone call". The witness then said, "Aunty said to me that [A2] said to them that it had done in Africa" and "[KM] Aunty just checked, …That's what she, [A2], said to Aunty". 4. These statements, attributed to A5, were made the day after the conversation where "khatna" was referred to. The word "checked" is relied on by the Crown, in the context of the witness' evidence yesterday, where the word "checkup" was used. 5. The Crown seeks to rely, as well, on what is said (at pages 6 and 7 of Exhibit PTK, Tab 15) in which there is a discussion, the Crown says, about "khatna" in the sense of female circumcision. The transcript contains the following: A1: "We haven't done anything forbidden HARAM. This is SHARIA work. God KHUDA will save us. MAULA will save us". A5: "Do not worry. Look, MUSLIMS do, normally most MUSLIMS do". … A5: "Yes, ARAB, AFRICA, most MUSLIMS community do". A1: "But it is illegal in AFRICA". A5: "Yes, AFRICA and everywhere it is illegal. Medically it is illegal". A1: "According to SHARIAT, legal". A5: "It happens everywhere privately". A1: "Anyway, let us see. Here it is very bad. Very strict law against it". A5: "Yes, okay". A1: "Okay Mummy". A5: "There may be a good way out. All would fail. Okay". 1. The Crown seeks to rely on parts of that conversation as shedding light upon the knowledge of A5 concerning KM's role. Thus, it is said to be inconsistent with the evidence to which I have already made mention. It is also said that the contents of this transcript relates to A5's knowledge of "khatna", in the sense of a procedure involving female circumcision. 2. The term "khatna", and its meaning, are of considerable significance in this trial. It is a term that has been used in evidence already before the jury in recorded conversations. No doubt submissions will be made as to why the Accused persons and others would be having conversations about "khatna", in the context of events concerning C1 and C2. Thus, the word is a significant one in this trial. 3. In that respect, an issue may arise as to whether there is a difference between "khatna" and "khatanat". For present purposes, I do not see any significant distinction for the purpose of this ruling. 4. I am satisfied that the Crown has demonstrated a threshold so as to have leave under s.38 which, prima facie, would involve use of these recorded conversations. 5. Submissions were made with respect to discretionary considerations which arise under ss.38 and 192 and also s.137. 6. It was submitted strongly by Mr Sutherland SC that these are conversations between, effectively, third parties to the proceedings, with no Accused person being a party to either conversation. The conversations are between A1, the husband of one of the Accused persons, and A1's mother. 7. I accept that care must be taken before a decision is made allowing the use of material of this type in a criminal trial. The Court must consider carefully whether its use may convert the focus of the trial, in some inappropriate way, and give rise to collateral issues by way of sidetrack. 8. I have already said that A5 is an important witness. She was in the room on each occasion when events under consideration in this trial occurred. She was present and, on her evidence, was praying. She was clearly invited to be there. 9. The question of the use of the term "khatna" by her, or an acceptance by her of that term as having something to do with what happened to C1 and C2 is, in my view, an issue of direct relevance in this trial. It is not a sidetrack, nor a collateral issue. 10. The first conversation (Exhibit PTK, Tab 6), is clearly appropriate for a grant of leave subject to the s.137 objection, to which I will return. 11. The longer conversation (Exhibit PTK, Tab 15) involves a number of topics. The uses which the Crown seeks to make of it are less direct than Exhibit PTK, Tab 6. 12. The conversation in Exhibit PTK, Tab 15 takes place less than 24 hours after the first conversation. It involves the same speakers. It covers territory which sheds light upon the true knowledge and understanding of A5, an important Crown witness, who was present on both the occasions when the alleged offences occurred. In addition to areas of suggested inconsistency, Exhibit PTK, Tab 15 is capable of being used in the trial for proper reasons. 13. Mr Sutherland SC submitted that what was happening here was a deliberate attempt to manipulate the trial process. That submission was based upon some statements made in R v Parkes (see [6] above). The Court will always be careful to guard against the occurrence of matters which could be so characterised. I am not persuaded that that is what is happening in this case. 14. Section 38 Evidence Act 1995 has been recognised, in a multitude of judgments, as making some fundamental changes to the way in which criminal trials proceed. The application is being made here while evidence-in-chief is still underway. Any cross-examination by leave will occur before counsel for the Accused persons are called upon themselves to cross-examine. That itself is relevant to any suggested unfairness. 15. I am satisfied, for the purpose of s.192(2)(a), that the use of this material will not involve undue lengthening of the trial. 16. At this point, I turn to the submission by Mr Bouveng by reference to s.137, which picks up suggested unfairness to the Accused persons, an issue also relevant under s.192(2)(b). I am not persuaded that the use which may be made of these transcripts, with respect to the present witness, will involve any real prospect of misuse by the jury of this material. The focus of this material will be upon what this important Crown witness is truly able to say about the events which are facts in issue in this trial. For the purpose of s.137, I record my finding that the probative value of this evidence is not outweighed by the danger of unfair prejudice to the Accused persons. 17. I should make it clear that this ruling is made by reference to the material relied upon and the purposes identified by the Crown. The question of what will occur with respect to future witnesses will, in turn, be decided by reference to material relevant to any such application. 18. I grant leave to the Crown to cross-examine A5 with respect to the following topics: 1. what events occurred in the bedroom on the occasions that A5 has described when C1 and C2 were lying on beds; 2. the knowledge of the witness of the term "khatna" or "khatanat" and its use concerning girls, including C1 and C2; 3. evidence (said to be inconsistent) concerning the use of the term "checkup" and the role of KM. 1. In identifying these topics and in making this ruling, I have taken into account the fact that the Crown may cross-examine "about" those matters and, in accordance with the passage from Doyle v R (mentioned at [8] above) to which I have made mention, that is a relatively broad concept. I do not propose, at this stage, to grant leave separately to cross-examine as to credibility, given the breadth of the grant of leave which I have made. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2015