R v A2; R v KM; R v Vaziri (No. 8)

1. [1]

   JOHNSON J: The Crown sought an advance ruling under s.192A Evidence Act 1995, upon an application for leave to cross-examine at trial an intended Crown witness, A1, under s.38 Evidence Act 1995 with respect to a number of specific topics.

Factual Background

1. [2]

   A1 is the father of C1 and C2, the complainants with respect to charges, including charges of female genital mutilation, brought against A2 (A1’s wife), KM and Shabbir Mohammedbhai Vaziri.

2. [3]

   The charges and factual background to the charges, and an outline of the Crown case against the Accused persons, appears in R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 at [7]ff. It is not necessary to repeat that material in this judgment.

The Present Application

1. [4]

   The Crown called A1 at a pretrial hearing on 3 September 2015. A1 did not object to giving evidence as a prosecution witness in criminal proceedings against his wife: s.18 Evidence Act 1995.

2. [5]

   A1 had been charged in 2012 with offences arising from the events in question. He was discharged at committal proceedings before the Local Court.

3. [6]

   The Crown considered that it was under a duty to call A1 as a witness at the trial, as his evidence was necessary to unfold the narrative and give a complete account of all the events upon which the prosecution is based: Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 674. It is the case that A1 is involved in many covertly recorded conversations about these events on and after 29 August 2012, upon which the Crown relies.

4. [7]

   The s.38 application was based upon a number of contrasts between what A1 had said on 3 September 2015 and what he had said, at earlier times, in a recorded interview with police on 7 September 2012 and in a number of conversations which had been recorded under warrant by way of surveillance device or telephone interception warrant.

5. [8]

   A1 had received legal advice about his rights and obligations as a witness, before the pretrial hearing. A certificate under s.128 Evidence Act 1995 issued with respect to parts of his evidence on 3 September 2015.

6. [9]

   I was satisfied that it was appropriate, in this case, to give a ruling before the evidence of A1 is adduced in the trial. The ruling concerns the use of evidence proposed to be adduced from A1 and the operation of s.38 in relation to that evidence: s.192A(a), (b) Evidence Act 1995. The advance ruling procedure under s.192A is utilised, from time to time, where a s.38 application is made before trial: Director of Public Prosecutions (Vic) v McRae [2010] VSC 114.

7. [10]

   On 10 September 2015, I announced my ruling on the present application in the following terms (PT731.27-732.1):

8. [11]

   I should record, as well, the additional observations which I made after giving that ruling (PT732.15-30):

9. [12]

   The approach taken by me on 10 September 2015 was premised necessarily on the position being the same, when A1 is called to give evidence before the jury, as it was at the time of the pretrial hearing on 3 September 2015. It is assumed that A1 will adhere to the position taken by him on that occasion: Adam v The Queen [2001] HCA 57; 207 CLR 96 at 102 [13]; R v Anyang [2011] VSC 31 at [8].

10. [13]

    This judgment contains my reasons for the ruling made on 10 September 2015.

Relevant Statutory Provisions

1. [14]

   Section 38 Evidence Act 1995 provides as follows:

2. [15]

   Section 192 of that Act is in the following terms:

Relevant Legal Principles

1. [16]

   In R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005, I set out at [9]-[17] the principles to be applied where the Crown makes application for leave under s.38 Evidence Act 1995:

2. [17]

   Subject to one qualification, I have kept these principles in mind in considering the present application.

3. [18]

   The qualification relates to the mention of s.137 Evidence Act 1995 in the final sentence of R (Cth) v Petroulias (No. 29) at [15]. What was said about s.137 in R v Le [2002] NSWCCA 186; 54 NSWLR 474 must now be considered in light of decisions of the Court of Criminal Appeal in R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 649-653 [16]-[30]; Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 233 [64]-[66] and Poniris v R [2014] NSWCCA 100 at [36]-[50].

The Topics in Relation to Which Leave is Sought by the Crown

1. [19]

   I will outline the basis for my ruling with respect to each of the nominated topics.

2. [20]

   The Crown pointed to evidence of A1 at the pretrial hearing on 3 September 2015 as follows (PT622-624):

3. [21]

   The Crown referred, as well, to the later evidence of A1 (PT642):

4. [22]

   The Crown submitted that the evidence set out above is unfavourable to the Crown case for the purpose of s.38(1)(a) as it is the Crown case that, in each case, C1 and C2’s clitoris was cut in the course of the Khatna procedure.

5. [23]

   The Crown submitted that this evidence of A1 was also inconsistent with the contents of some eight conversations recorded under either surveillance device warrant or telephone interception warrant.

6. [24]

   By way of example, the Crown refers to a recorded conversation on 29 August 2012 (Exhibit PTK, Tab 35), where A2 is having a conversation with A1 in which, on the Crown case, she is explaining the Khatna procedure. The Crown submitted that A1’s knowledge of Khatna, as described to him by A2, is inconsistent with the Khatna procedure explained by A1 in his evidence.

7. [25]

   The Crown points, as well, to a recorded conversation on 29 August 2012 (Exhibit PTK, Tab 34), where A1 expresses concern that they have a problem, but KM has a bigger problem than them, and that KM would be caught. The Crown submitted that this is inconsistent with a benign Khatna procedure occurring.

8. [26]

   As stated on 10 September 2015, I am satisfied sufficiently that unfavourability and inconsistency has been demonstrated with respect to this topic. As also indicated on 10 September 2015, the extent to which the Crown will be permitted to cross-examine A1, in particular in a manner which involves the playing of recorded conversations which would not otherwise be in evidence, will be the subject of further consideration before the final grant of leave is made.

9. [27]

   It is sufficient to record my ruling that the Crown has crossed the s.38 threshold with respect to this topic.

10. [28]

    The Crown pointed to evidence given by A1 on 3 September 2015 (PT631):

11. [29]

    The Crown relied, as well, upon the following evidence of A1 (PT633):

12. [30]

    Reliance was placed upon the following evidence of A1 (PT639):

13. [31]

    The Crown submitted that this evidence was unfavourable to the Crown case for the purpose of s.38(1)(a) because it is the Crown case that C1 did complain to A1 on 29 August 2012 during a covertly recorded conversation in a motor vehicle in which the following was said (Exhibit PTK, Tab 34):

14. [32]

    The Crown pointed, as well, to C2’s statement in her recorded interview of 29 August 2012 that she had told her father about what had happened:

15. [33]

    The Crown submitted further that part of the police interview with A1 on 7 September 2012 is pertinent (Exhibit PTK, Tab 3):

16. [34]

    The Crown submitted, as well, that A1 had demonstrated unfavourability and inconsistency in the course of a recorded conversation on 31 August 2012 between A1 and Hussein Karimjee (Exhibit PTK, Tab 20). In that conversation, A1 said (page 13):

17. [35]

    A little later, A1 said to Mr Karimjee (page 14):

18. [36]

    I am satisfied that the Crown has demonstrated unfavourability and inconsistency with respect to this topic so as to prima facie warrant a grant of leave under s.38.

19. [37]

    It is not necessary to go further at this point.

20. [38]

    The Crown relies upon the following evidence given by A1 on 3 September 2015 (PT638):

21. [39]

    The Crown refers, as well, to the further evidence of A1 (PT641):

22. [40]

    The Crown submits that this evidence is inconsistent with assertions made by A1 on earlier occasions. Reliance is placed upon 12 telephone intercept transcripts, four surveillance device transcripts and parts of the police interview with A1 on 7 September 2012.

23. [41]

    A number of illustrations will suffice for present purposes.

24. [42]

    In the course of a recorded conversation between A1 and KM at 3.20 pm on 29 August 2012 (Exhibit PTK, Tab 5), KM and A1 are discussing what C1 said had happened on the occasion relevant to this trial. In the course of that conversation, A1 said (pages 7-8):

25. [43]

    In the course of a recorded conversation between A1 and A2 on the afternoon of 29 August 2012, A1 says to A2 (Exhibit PTK, Tab 34):

26. [44]

    Later in the same conversation, A1 said to A2:

27. [45]

    A little later again, in the same conversation, A1 said to A2:

28. [46]

    The Crown relied upon parts of the police interview with A1 on 7 September 2012 (Exhibit PTK, Tab 3):

29. [47]

    The Crown submitted that evidence of A1 under this heading was unfavourable and was inconsistent with prior accounts given by him either in his police interview or in the covertly recorded conversations.

30. [48]

    I should observe that Mr Sutherland SC, for A2 and the Accused Vaziri, acknowledged that the “Africa story” was untrue and that there would be no issue at the trial in that respect.

31. [49]

    I am satisfied that relevant unfavourability and inconsistency is demonstrated by reference to material falling under this heading. I have taken into account the defence position concerning this material in reaching this conclusion.

32. [50]

    In support of this argument, the Crown sought to rely upon a significant number of other recorded conversations in addition to those to which reference is made in this judgment. In determining the extent of the grant of leave to be granted to the Crown under this heading, I will keep in mind the approach foreshadowed on 10 September 2015 (see [10]-[11] above) and the provisions of s.192 Evidence Act 1995.

33. [51]

    The Crown referred to evidence given by A1 on 3 September 2015 (PT639):

34. [52]

    The Crown referred, as well, to the following evidence of A1 (PT642):

35. [53]

    The Crown submitted that the evidence of A1 set out above is inconsistent with material contained in 12 telephone intercept conversations, three surveillance device conversations and answers given by A1 during his police interview on 7 September 2012.

36. [54]

    Once again, it will be sufficient to provide illustrations of the suggested inconsistencies.

37. [55]

    The Crown points again to the recorded telephone conversation between KM and A1 at 3.20 pm on 29 August 2012 (referred to at [42] above).

38. [56]

    The Crown refers, as well, to the conversation between A1 and A2 recorded by way of surveillance device on 29 August 2012, extracts of which are set out earlier in this judgment (at [43]-[45]).

39. [57]

    The Crown relies upon the following parts of A1’s police interview of 7 September 2012 (Exhibit PTK, Tab 3), which repeat some portions, relied upon concerning the “Africa story”:

40. [58]

    The Crown submits that relevant inconsistency is demonstrated with respect to this topic in a manner related to the third topic, the “Africa story”.

41. [59]

    Mr Sutherland SC acknowledged that the “checking story” was not true and that no attempt would be made at trial to advance it as a true account.

42. [60]

    There is a considerable overlap between the third and fourth topics, the “Africa story” and the “checking story”. In the material relied upon, the two issues travel together. I am satisfied that relevant inconsistency has been demonstrated so as to cross the s.38 threshold. In reaching this view, I have had regard to the defence position concerning material on this topic.

43. [61]

    As with the third topic, the Crown pointed to a large number of recorded conversations which were said to demonstrate inconsistency. Once again, the approach to be taken at trial with respect to the extent of any grant of leave will be affected by considerations foreshadowed by me on 10 September 2015 (see [10]-[11] above) and the provisions of s.192 Evidence Act 1995.

44. [62]

    The Crown referred to the following evidence of A1 given on 3 September 2015 (PT639):

45. [63]

    The Crown submitted that this evidence is inconsistent with statements made by A1 in some 16 electronically recorded conversations. The Crown took the Court to a number of transcripts which were said to be examples.

46. [64]

    In the course of a conversations at 3.04 pm on 29 August 2012 between A1 and the Accused Vaziri (Exhibit PTK, Tab 4), the Crown submits that A1 is aware that KM was actively involved in the procedures under consideration so that A1 expresses an intention to speak to KM about the topic (pages 5, 9).

47. [65]

    In a conversation between A1 and KM at 3.20 pm on 29 August 2012 (Exhibit PTK, Tab 5), A1 calls KM and discusses with her the fact that C1 has told investigating officials what had happened. In the course of this conversation, the Crown contends that A1 outlines to KM the “Africa story” and the “checking story”, with KM accepting that such an account should be given.

48. [66]

    During a recorded conversation between A1 and Mr Karimjee at 10.25 am on 1 September 2012 (Exhibit PTK, Tab 21), the following was said (page 2):

49. [67]

    The Crown submitted that inconsistency was demonstrated between the evidence of A1 at the pretrial hearing and earlier statements made by him in recorded conversations. In particular, the Crown submitted that A1 demonstrated, at an early point in his conversation with the Accused Vaziri, the fact that KM had been involved in these matters and that he considered she should be spoken to promptly in that respect. Thereafter, A1 rang KM and discussed the matter with her. The Crown pointed to later conversations as well which, it was submitted, pointed to A1 having some knowledge that KM performed a role in the community as a circumciser.

50. [68]

    Mr Bouveng, counsel for KM, submitted that the recorded conversations disclose, at the highest, the fact that KM had performed a role with C1 and C2, but not that she performed a role in the community, as a circumciser or otherwise.

51. [69]

    I am satisfied that the Crown has demonstrated inconsistency under this heading. The discussions undertaken by A1, very soon after he and A2 had learned that C1 and C2 had spoken to investigating officials, involved an indication of his knowledge of the role of KM with respect to his daughters. An inference is available, at the least, that this knowledge was based upon A1’s pre-existing knowledge of a role played by KM in the Dawoodi Bohra community.

52. [70]

    It will, of course, be a matter for the jury to determine what findings should be made concerning KM, for the purpose of reaching verdicts. I am satisfied, however, that the s.38 threshold has been passed with respect to this topic.

53. [71]

    The Crown seeks leave to cross-examine A1 under s.38(3) Evidence Act 1995 on matters relevant only to his credibility.

54. [72]

    In this respect, the Crown relied upon three recorded conversations involving A1. The Court was taken to one of these, by way of example.

55. [73]

    In a conversation at 4.05 pm on 29 August 2012 involving A1 and A1’s mother (Exhibit PTK, Tab 6), the following was allegedly said (page 2):

56. [74]

    The extract in the preceding paragraph bears upon the first topic, as well as the issue of credibility.

57. [75]

    I am satisfied that the s.38 threshold has been crossed with respect to credibility. In this regard, I have had regard to the other topics referred to in this judgment, as well as the particular example relied upon by the Crown under this heading.

Conclusion

1. [76]

   As indicated on 10 September 2015, in the passages extracted at the commencement of this judgment (at [10]-[11]), and for the reasons provided in this judgment, I am satisfied that the Crown has crossed the s.38 threshold so as to prima facie warrant a grant of leave to cross-examine A1, with respect to the topics identified in this judgment.

2. [77]

   Before there is a formal grant of leave, however, the Court will have regard to the evidence given by A1 in examination-in-chief before the jury, together with identification by the Crown of the extent of any cross-examination to be undertaken (in particular by reference to transcripts of recorded conversations) if a grant of leave is actually made with respect to the nominated topics.