R v A2; R v KM; R v Vaziri (No. 13) [2015] NSWSC 1543

Supreme Court New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 13) [2015] NSWSC 1543 Hearing dates: 14 October 2015 Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Leave granted to cross-examine A1 on certain topics under s.38 Evidence Act 1995 Catchwords: CRIMINAL LAW - Crown application for leave to cross-examine Crown witness (A1) 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 R v A2; R v KM; R v Vaziri (No. 10) [2015] NSWSC 1540 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 application by crown for leave to cross-examine a1 - t1181) 1. JOHNSON J: On 7 October 2015, I published my reasons with respect to a preliminary application by the Crown for leave to cross-examine, under s.38 Evidence Act 1995, the witness A1: R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472. As R v A2; R v KM; R v Vaziri (No. 8) makes clear, it was a provisional ruling based upon certain matters. 2. The Crown has now sought leave to cross-examine A1 on a more refined range of topics. 3. The principles which I am applying in this judgment are those set out in my judgments R v A2; R v KM; R v Vaziri (No. 8) and R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491, which do not need to be repeated. 4. Discretionary considerations arise both under ss.38 and 192 and indeed, although the section has not been mentioned specifically, s.137 Evidence Act 1995. 5. In a sense, A1 does not give primary evidence on factual matters, certainly not in the way that A5 or A3 have done. My judgments with respect to the s.38 applications concerning those witnesses identify their evidentiary importance in the trial. 6. However, A1 has a role in the case which is a little unusual. He is, of course, the husband of one of the Accused persons (A2), and the father of the two children who are the subject of the charges. Because of a range of electronic evidence available to the Crown, there are a variety of conversations involving A1, each of the three Accused persons and, indeed, other persons which touch upon issues in this trial. 7. I will confine these reasons, as far as possible, having regard to the fact that the jury is awaiting this determination. 8. By reference to the Crown's revised schedule (MFI58), I indicate that I propose to grant leave with respect to Items 1, 2 and 3, which involve leave to cross-examine A1 by reference to three recordings which are in evidence. For the purpose of accelerating the process, in the first instance the Crown should seek to utilise the transcripts without requiring the playing of any recordings. 9. I make the same ruling with respect to Item 7 - a further item in evidence, Exhibit AU. 10. With respect to the specific items addressed by the Crown orally this morning, I propose to allow the Crown to cross-examine upon the basis of either inconsistency or unfavourability, or both, by reference to evidence given by the witness (at T1139.13) with respect to scissors and (at T1139.30) with respect to the suggested role of KM. 11. Having regard to the evidence of the witness yesterday as to his state of mind, and his actions at the time he was interviewed by police on 7 September 2012, I propose to allow the Crown to cross-examine, upon the basis of inconsistency, with respect to the ERISP Questions and Answers 246 to 248, but not beyond those. 12. With respect to the question of whether forceps were placed "in genitalia" or "in a genital area", the grant of leave which the Crown has with respect to the term "khatna" (which will apply to the recorded conversations), will allow the Crown to cross-examine on that topic as well. 13. The points at which the witness gave evidence yesterday, as to his understanding of the term "khatna" at different times, will itself be part of the grant of leave to cross-examine with respect to "khatna". Cross-examination may extend to answers given yesterday on those topics, which are interrelated with the recordings and transcripts (Exhibits AF and AH). 14. With respect to the Crown application concerning any practice in India, I note the Crown proposes to ask a question again to clarify the position and I make no ruling in that respect. 15. I turn then to the series of items in MFI58, Numbers 4, 5, 6, 8, 9, 10 and 11. Each of these involves conversations between the present witness and other persons, principally Mr Karimjee, a solicitor, but also other persons in Items 5 and 11. The Crown has confined to particular parts the portions which they seek to utilise if leave is granted. Those parts touch upon the term "khatna" and the role of KM in the Dawoodi Bohra community. 16. I have allowed the Crown, in the context of the s.38 application with respect to A5, to cross-examine by reference to conversations between A5 and A1 (Exhibits AS and AU): R v A2; R v KM; R v Vaziri (No. 9); R v A2; R v KM; R v Vaziri (No. 10) [2015] NSWSC 1540. 17. Both of those persons are witnesses in the Crown case. 18. The items in relation to which the Crown presently seeks leave involve one witness in the Crown case, namely the present witness, and other persons who are not. 19. There is, on the basis of the material pointed to by the Crown, sufficient inconsistency between the things said by A1 in those conversations, and evidence given yesterday with respect to the role of KM within the Dawoodi Bohra community. The Crown opened its case upon the basis that it was its contention that KM was effectively the circumciser for that community, and that proposition has been put to other witnesses. It is the case (this part being undisputed), that on the occasions involving C1 and C2, it was KM who was the actor utilising such implement as was used. 20. Submissions have been made that it would be highly prejudicial to KM to seek to introduce this material, which would involve what is said to be knowledge of A1 (acquired in some way) of KM's role in this community. It is the case, as I understand it, that KM has raised character in the trial already. The role of KM in the Dawoodi Bohra community is not a new issue. It is an issue which the Crown has sought to raise with various witnesses so far. Whatever evidence emerges from A1 on that topic remains to be seen. 21. I am not persuaded that the probative value of this material is outweighed by its prejudicial effect. Given the mechanism which I propose to hold the Crown to in using this material, I am satisfied that there will not be undue use of trial time in dealing with these issues. 22. I propose to grant the Crown leave under s.38 to cross-examine A1 with respect to Items 4, 5, 6, 8, 9, 10 and 11 in MFI58. The mechanism to be used will be confined to an identification to the witness of the transcript and the conversation he is meant to have had with a particular person, at a particular date and time. The witness is to be taken to the particular part which the Crown seeks to rely upon. The recording will not be tendered as an exhibit in the trial, and the jury should not be provided with copies of these transcripts. The relevant transcripts can be marked for identification. 23. In my view, this measure will minimise the risk of any misuse of this material by the jury. It will allow the Crown to undertake what I regard as a proper exercise in the trial, but not in a manner that operates in any unduly prejudicial fashion to the Accused persons. It will keep this material in a proper perspective. 24. In reaching these conclusions, I have had regard to the requirements of s.38 and 192 and I have also taken into account s.137 Evidence Act 1995. 25. I propose to give the jury a direction, at an appropriate time, that the portions of these transcripts which are used in cross-examination of A1 in this way, may be used for the purpose of understanding and assessing his evidence on these topics. Anything stated by the other person in the conversation, unless adopted by A1, should not be treated as evidence of the truth of the facts contained in the statement of the other person.