Supreme Court New South Wales Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 11) [2015] NSWSC 1541 Hearing dates: 12 October 2015 Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Leave granted under s.38 Evidence Act 1995 to cross-examine A3 on certain topics Catchwords: CRIMINAL LAW - Crown application for leave to cross-examine Crown witness (A3) under s.38 Evidence Act 1995 - leave granted on certain topics Legislation Cited: Evidence Act 1995 Cases Cited: R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472 R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491 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 (on crown application under s.38 evidence act 1995 to cross-examine a3 - t1051) 1. JOHNSON J: Application is made once again by the Crown for leave to cross-examine a Crown witness, in this case A3. 2. The principles to be applied on an application of this sort, including the relevant terms of ss.38 and 192 Evidence Act 1995, are set out in earlier judgments which I have delivered on similar topics concerning other persons: R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472; R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491. I apply those principles again with respect to this application. 3. As the jury is waiting, I will give concise reasons for the rulings which I make. 4. A3 is an important witness in the trial. She is, on her own evidence, a person in the bedroom at her house at Wollongong at the time when the alleged events concerning C1 occurred. Accordingly, some of the observations I made with respect to her sister, in R v A2; R v KM; R v Vaziri (No. 9) at [16], are relevant. 5. Insofar as A3 has been asked to give an account of what occurred in the bedroom on the day in question when C1 was lying on the bed, I am satisfied for the purpose of s.38(1)(b), that there are matters of which the witness may reasonably be supposed to have knowledge, and about which it appears to the Court the witness is not, in examination-in-chief, making a genuine attempt to give evidence. Having regard to what the witness herself has described as the novelty of the events occurring in her own bedroom on that day, I am satisfied that that particular head of s.38 has been made out, given her limited response to the questions put by the Crown in that regard. 6. Next, concerning the questions that have been asked of the witness today with respect to the topic of "khatna", I am satisfied that inconsistency has been demonstrated for the purpose of s.38(1)(c) of the Act, by reference to parts of telephone intercepts to which I have been referred. In this respect, I refer expressly to Exhibit AA, Tab 15 (page 2ff), Tab 28 (page 1ff) and Tab 29 (page 1ff), together with the transcript of evidence given by the witness at the pretrial hearing on 12 August 2015 (in particular, PT258 to 259, 260, 262 and 265). I note that there is relevant inconsistency insofar as comparison is made between the witness' account today, and on that occasion, concerning her observations with respect to C1's dress. 7. I am also satisfied, with respect to the subject of "khatna", that the witness may be regarded as unfavourable for the purpose of s.38(1)(a) of the Act. 8. The Crown has sought to rely upon evidence given today concerning the so-called "Africa checking" story, and what the witness is disclosed as discussing in telephone intercepts concerning that issue. In particular, reliance was placed upon Exhibit AA, Tab 15 and Tab 38, and pretrial Exhibit PTK, Tab 32, with the relevant page references mentioned in the Crown schedule (MFI 56). 9. I am not persuaded that the Crown has, to this point, established inconsistency for the purpose of s.38(1)(c) on this topic. Short questions have been asked of the witness, which have involved effectively either an indication of lack of recollection or answers which, in my view, fall short of inconsistency. Leave will not be granted on that topic upon the basis of what has been said so far. 10. With respect to the Crown submission concerning the suggested role of KM as a circumciser in the Dawoodi Bohra community, I am not persuaded that the parts pointed to by the Crown in that respect call for a grant of leave on that topic. Those references are Exhibit AA Tab 15 (page 6ff) and Tab 29 (page 2ff). I do not grant leave with respect to that topic. 11. Insofar as the Crown sought, by way of a supplementary submission, to contend that the "Africa checking" story was one which ought give rise to a grant of leave to cross-examine the present witness upon the basis of credibility, I am not so persuaded. 12. If some additional foundation is laid for that aspect being further considered, I will deal with it then. However, I am not persuaded that a grant of leave ought be made now in that respect. In this regard, I note that Exhibit AA is already in evidence and before the jury. There is material there about which it is open to the Crown to make submissions. Four of the five recorded conversations, upon which the Crown seeks leave to cross-examine the present witness, are already in evidence. 13. I have given consideration to other issues arising under ss.38 and 192. Having done so, I propose to grant leave to the Crown to cross-examine on the identified topics which I have mentioned. ********* 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