R v A2; R v KM; R v Vaziri (No. 21)

1. [1]

   JOHNSON J: At the trial of the Accused, A2, KM and Shabbir Mohammedbhai Vaziri, the Crown called two children, C1 and C2, to give evidence in the Crown case.

2. [2]

   The nature of the charges brought against the Accused persons, and the role of C1 and C2 as witnesses in the trial, may be discerned sufficiently from my judgment of 8 September 2015: R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306. In that judgment, I determined that C2 was competent to give sworn evidence at the trial, and I overruled an objection made by C1 and C2 under s.18 Evidence Act 1995 to giving evidence in the trial where their mother, A2, was an Accused person.

Pretrial Ruling Concerning Suggested Leading Questions and s.37 Evidence Act 1995

1. [3]

   In advance of the trial, objection was taken on behalf of the Accused persons to parts of the recorded interviews of each child which were said to contain leading questions. The recorded interview of each child was to be played to the jury as part of the evidence-in-chief of the witness, pursuant to ss.306U and 306V Criminal Procedure Act 1986.

2. [4]

   To the extent that any question used in the recorded interviews was held to be a leading question, the Crown sought leave under s.37 Evidence Act 1995 to permit leading questions to be used in the examination-in-chief of the witness.

3. [5]

   Written submissions were provided on behalf of the Accused persons and the Crown on these issues (Pretrial MFIs 40 and 41).

4. [6]

   At the conclusion of submissions on this aspect on 10 September 2015, I announced my ruling in the following terms (PT732):

Trial Rulings Concerning s.42 Evidence Act 1995

1. [7]

   C1 was called as the first witness in the trial. She gave evidence by way of closed-circuit television with her evidence-in-chief being constituted substantially by her recorded interview.

2. [8]

   The Crown made application under s.42 Evidence Act 1995 seeking to restrict the use of leading questions in cross-examination of each of C1 and C2 (MFI4).

3. [9]

   Submissions were made by counsel on the s.42 application. At the conclusion of argument, I stated that I would give more detailed reasons for the ruling at a later time. However, for the assistance of counsel and to allow the trial to proceed directly before the jury, I said (T112-113):

4. [10]

   Following the evidence of C1, in which cross-examination on behalf of the Accused persons did not seek leave under the second-phase approach referred to in my judgment, the Crown called C2 to give evidence. Further submissions were made by counsel concerning the Crown application under s.42 Evidence Act 1995 with respect to C2.

5. [11]

   Following those submissions, I gave short reasons for granting the Crown s.42 application, and foreshadowed that more detailed reasons would be provided at a later time. The short reasons concerning C2 were as follows (T168-169):

6. [12]

   Cross-examination of C2 was brief, with leave under the second phase not being sought (T177-185).

7. [13]

   This judgment contains my detailed reasons for the rulings made on 10, 16 and 17 September 2015.

Relevant Statutory Provisions

1. [14]

   Section 37 Evidence Act 1995 concerns the use of leading questions in examination-in-chief. The section provides:

2. [15]

   Section 42 is concerned with the restriction on the use of leading questions in cross-examination. Section 42 provides:

3. [16]

   The term “leading question” is defined in the Dictionary to the Act in the following way:

4. [17]

   The term “examination in chief” lies within clause 2 of Part 2 of the Dictionary to the Act:

5. [18]

   To the extent that s.37(1)(a) involves a grant of leave by the Court, s.192 is pertinent. That provision states:

The Objection to Leading Questions in the Recorded Interviews of C1 and C2 and the Crown’s Application for Leave Under s.37 With Respect to Any Leading Questions

1. [19]

   Counsel for the Accused persons objected to the following parts of the recorded interview with C1, upon the basis that leading questions were asked in examination-in-chief (Exhibit PT11):

2. [20]

   Objection was taken upon the same basis to part of the recorded interview with C2 (Exhibit PT12):

3. [21]

   It was submitted that Q389 (in the case of C1) and Q194 and Q197 (in the case of C2), in particular, were leading questions, with a flow-on effect into subsequent questions so as to render them leading questions as well.

4. [22]

   It was submitted for the Accused persons that the Crown should not be granted leave under s.37(1)(a) to adduce this evidence by way of leading questions. By reference to s.192 of the Act, it was submitted that:

5. [23]

   The Crown submitted that the questions objected to, when viewed in context, were not leading questions (Pretrial MFI41). Should the Court hold that any of the questions were leading questions, the Crown submitted that leave should be granted under s.37(1)(a) for that evidence to form part of the examination-in-chief of each of C1 and C2.

6. [24]

   The Crown referred to parts of the interviews of C1 and C2, before and after the questions which drew the objection. It was submitted that the impugned questions must be seen in context in each case, with that process supporting a grant of leave under s.37(1)(a) with respect to each of C1 and C2.

7. [25]

   For the purposes of s.192(2), the Crown submitted that the evidence was important and that the subject matter of the questions concerning intimate parts of each child was relevant. It was emphasised that the proceedings were against the mother of C1 and C2, with whom they both lived.

8. [26]

   The Crown submitted that it would not be unfair to a party or either witness to grant leave under s.37(1)(a).

Reasons for s.37 Ruling

1. [27]

   It may be taken that s.37 Evidence Act 1995 applies to questions asked in a recorded interview which is to be tendered as part of a child’s evidence-in-chief by way of ss.306U and 306V Criminal Procedure Act 1986. Although some rules of evidence are relaxed by s.306V(1), s.306V(4) makes clear that the Court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under these provisions. It is notable, however, that such objections do not relate to a question asked in Court by counsel. Those circumstances attract an objection, followed by submissions and a ruling. In that context, of course, an application for leave under s.37 may be considered in the dynamic context of the trial itself while the witness is giving oral evidence.

2. [28]

   Here, the questions under challenge were asked in the course of an investigatory interview undertaken with each of C1 and C2 more than three years before. Because of the provisions contained in ss.306U and 306V Criminal Procedure Act 1986, the questions and answers in the recorded interviews may become part of the evidence-in-chief of the relevant vulnerable person.

3. [29]

   This does not mean that the prohibition contained in the Evidence Act 1995, upon the use of leading questions in examination-in-chief, does not apply. Clearly, the provision has application as the contents of the interview become part of the evidence-in-chief of the witness. Other bases of objection might also arise in a particular case. In this case, the only objection taken to the questions referred to at [19] and [20] above was made upon the basis of the use of leading questions.

4. [30]

   I am satisfied that Q/A389 (in the case of C1) and Q/A194 and 197 (in the case of C2) constitute leading questions within the definition of that term in the Evidence Act 1995.

5. [31]

   I am not so satisfied with respect to the balance of the questions which are objected to upon the same basis. The other questions under challenge do not, in my view, fall within the terms of the statutory definition.

6. [32]

   In the case of C1 (Q/A390-391; Q/A603-605), the questions are not leading and it could not be fairly concluded that they are somehow tainted by a type of flow-on effect. Both the words used in questions and answers, and the appearance of C1 in the video-recorded interview, support such a characterisation.

7. [33]

   A similar conclusion should be reached concerning C2, although she was more tentative in her appearance in the recorded interview.

8. [34]

   The question then arises as to whether the Crown should have leave under s.37(1)(a) of the Act to (in effect, retrospectively) adduce such evidence by means of a leading question. It has been observed that a ruling concerning the use of leading questions involves the exercise of discretion in the particular case by the trial Judge: Heydon, “Cross on Evidence”, 10th Australian edition, paragraphs [17,155]-[17,160].

9. [35]

   In exercising discretion under s.37(1)(a), in the context of a s.306U recorded interview, it is important to bear in mind the nature of the interview being undertaken, the age of the person being interviewed and to consider the particular question or questions under objection against the background of the interview in its entirety. It should be kept in mind that the interview is part of an investigatory process, although its potential use under ss.306U and 306V is also important.

10. [36]

    Likewise, it is most important that the interview was video recorded, so that the jury was in a position to see and hear the conversation, and to form a view as to the significance (if any) of any leading question.

11. [37]

    Having assessed the entirety of the recorded interview with C1, I was satisfied that leave ought be granted to the Crown to adduce evidence in the one leading question which I have identified. At the time of the interview, C1 was about nine years old. The question under challenge lay in the midst of a lengthy recorded conversation with the investigating officials.

12. [38]

    Fairly read, the recorded conversation involved a developing willingness of C1 to open up to the questioners in a number of respects. The interview took place against the background that C1 had been told by her mother not to discuss the topic of what had happened on the occasion of the alleged circumcision. The interview discloses an increasing willingness of C1 to talk to the investigators, mentioning at one stage that she (C1) felt “safe” (Q/A223). Although the interview progressed some way without C1 readily being prepared to discuss the event under consideration, she did so in a convincing and plausible fashion after the questions under objection. Nearly all the factual matters referred to by her were not disputed.

13. [39]

    It was also relevant to the exercise of discretion, for the purpose of ss.37 and 192, that further evidence to be adduced by the Crown involved conversations with others which referred to the fact that C1 had mentioned that she had been “cut”.

14. [40]

    In my view, the particular vice which has been identified with the use of leading questions does not arise in any realistic way in this case. Further, to excise a small part of a lengthy interview, and to proceed with the Crown having to ask a non-leading question on one topic out of a long interview, would involve an unrealistic process which would not serve the purpose of adducing relevant and meaningful evidence, in particular from a child by that time aged some 12 years. As observed earlier, the jury was in a position to form its own view concerning the significance (if any) of the leading question, given that a contemporaneous video recording was relied upon by the Crown.

15. [41]

    I was satisfied that it would not be unfair to any party or the witness to grant leave: s.192(2)(b). The evidence was important to the Crown case: s.192(2)(c). The refusal of leave would likely have extended the hearing: s.192(2)(a).

16. [42]

    For these reasons, I determined that the use of the leading question (identified above at [30]) ought be permitted by way of a grant of leave under s.37(1)(a) Evidence Act 1995 with respect to C1.

17. [43]

    In considering the leave issue with respect to C2, I had regard, as well, to the fact that she volunteered later in the interview that she felt “hurting … in my bottom” (Q/A232-233). The jury could assess this, as well, in considering the earlier reference to being “cut”.

18. [44]

    I was satisfied, having regard to ss.37 and 192, that leave ought be granted to the Crown to adduce this evidence from C2. My reasoning for this conclusion was similar to that expressed with respect to C1. This was an objection to certain questions in the course of an investigatory interview with a child, then aged six years. The jury could see and hear the interview, and form their own view concerning the role of the leading questions in the course of a long interview.

19. [45]

    In reaching these conclusions concerning C1 and C2, I had regard to the evidence of psychologists to which the Court was taken. I considered the opinions of the psychologists having taken into account the entirety of the interview with each child independently.

Crown Objection Under s.42 Evidence 1995 to the Use of Leading Questions in Certain Areas in the Cross-Examination of C1 and C2

1. [46]

   The Crown submitted that there ought be a limit upon the use of leading questions in the cross-examination of C1 and C2 with respect to four identified topics:

2. [47]

   The Crown submitted that there was some evidence that A1, the father of C1 and C2, had sought to influence the children (and, in particular, C1) on the afternoon of the interviews with the children on 29 August 2012. In this respect, the Court was taken to a conversation in a motor vehicle between A1 and C1 on that afternoon which was recorded by way of surveillance device. The Crown relied, as well, upon a recorded conversation between the mother, A2, and C1 and C2 where she discussed what had been asked of each of them in the interview earlier that day, and chided them for discussing what had happened (Exhibit AD, page 8).

3. [48]

   The Crown relied, as well, upon s.42(2)(d), noting the age of each child and some evidence of mild intellectual disability on the part of C2.

4. [49]

   The Crown submitted that the Court should be satisfied that the facts concerned would be better ascertained if leading questions were not used on these topics during cross-examination of C1 and C2 by counsel for the Accused persons.

5. [50]

   Counsel for the Accused persons opposed the making of any order s.42 restricting their capacity to use leading questions in cross-examination. It was submitted that a proper basis had not been demonstrated for such an order.

Reasons for s.42 Ruling

1. [51]

   In determining this question, I had regard, in particular, to the age of C1 and C2 and the material before the Court concerning the mild intellectual disability of C2: s.42(2)(d).

2. [52]

   In circumstances where the evidence-in-chief of each of C1 and C2 was to be constituted primarily by their recorded interviews made some three years before, I considered that this was a case where the use of s.42 was appropriate. In this respect, it was relevant that C1 and C2 were living with their parents, A1 and A2, so that additional care was warranted in the ascertainment of facts by means of questions asked in Court on behalf of the Accused persons.

3. [53]

   It was significant that A2, the mother, had spoken to each of C1 and C2 on the afternoon of 29 August 2012 and said the following concerning the interviews (Exhibit AD, page 5):

4. [54]

   There was evidence, as well, that A2, her husband, A1, and KM had advanced or embraced a false story at different times, in the form of the “Africa checking story”.

5. [55]

   Evidence of this type supported a conclusion that “the facts concerned would be better ascertained if leading questions were not used” (at least in the first instance) in cross-examination.

6. [56]

   There was a live question as to whether C1 and C2 would fall within s.42(2)(b) and (c), with the use of non-leading questions allowing the Court to consider these aspects further.

7. [57]

   As was pointed out by Mr Bouveng, counsel for KM, it remained important that he have the ability, depending upon the answers given to him by each of C1 and C2 in answer to non-leading questions, to challenge each witness by use of leading questions so that he could contradict their accounts in a manner that allowed him to put his client’s version before the witness, in accordance with the principle in Browne v Dunn (1893) 6 R 67.

8. [58]

   As indicated in the extracts containing my rulings at [9] and [11] above, I considered that a two-phase approach was appropriate given the subject matter of the questions and the particular factors existing in this case, where each child witness had been living since August 2012 with their parents, one of whom was on trial for the alleged offences said to have been committed against the girls.

9. [59]

   I was satisfied, for the purpose of s.42(3), that the facts concerned would be better ascertained if leading questions were not used in the cross-examination of each of C1 and C2 initially. Proceeding in this way allowed counsel for the Accused persons to ask questions which elicited a response to relevant matters, with the capacity to revisit the s.42 ruling by way of a second phase of questioning (using leading questions) if the Court considered that appropriate.

10. [60]

    In the event, neither Mr Bouveng nor Mr Sutherland SC asked questions moving beyond the first phase allowed in my ruling. Neither considered it necessary, in the circumstances of the evidence of each of C1 and C2, to seek to cross-examine by way of leading questions so as to confront each witness with a suggested contrary account.

11. [61]

    I record my view that the practical outcome of the ruling made by me under s.42, with respect to C1 and C2, meant that facts were better ascertained by counsel for the Accused persons using non-leading questions. The fact that defence counsel did not feel it necessary to revisit the s.42 ruling, by way of a second-phase argument, confirmed my conclusion that the approach permitted counsel to question each witness in a manner that was consistent with a fair opportunity to adduce evidence from each child.

Conclusion

1. [62]

   It was for the reasons here expressed with respect to the ss.37 and 42 issues, that I made the rulings on those topics set out earlier in this judgment.