Najm & Najm
[2022] FedCFamC1F 87
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Najm & Najm [2022] FedCFamC1F 87
File number(s): SYC 6820 of 2017 Judgment of: CAMPTON J Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of transcripts of a translated audio recording made by the paternal grandfather of a phone call between the mother and another person, to which the paternal grandfather was not a party – Where the recordings are prima facie illegally obtained unless an exclusionary provision yet to be determined – Whether s 135 or s 138 of the Evidence Act 1995 (Cth) permits the admission of the evidence – Where the transcripts are deficient – Probative value of each transcript is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the mother – Transcript inadmissible Legislation: Family Law Act 1975 (Cth) Part VI, Division 12A, s 69ZT
Evidence Act 1995 (Cth) ss 135, 138, 140
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: Gorman & Huffman & Anor [2016] FamCAFC 174
Masri and Masri [2017] FamCA 539
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 21 February 2022 Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: East Sydney Law Pty Ltd Solicitor for the Respondent: Litigant in person (did not participate) Counsel for the Second Respondent: Mr Eardley Solicitor for the Second Respondent: Emanuel Refenes Solicitor Solicitor for the Independent Children’s Lawyer: Ark Law Lawyers Counsel for the Independent Children’s Lawyer: Ms McConaghy ORDERS
SYC 6820 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAJM
Applicant
AND: MR B NAJM
First Respondent
MS FARHAN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The reports of Mr C, an accredited K Language/English and English/K Language translator from the National Accreditation Authority for Translators and Interpreters, being Exhibit 1 to the affidavits of the paternal grandfather filed on 16 April 2021 and 23 December 2021 are struck out.
2.These proceedings are adjourned part heard to 11.00 am on 23 February 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Najm & Najm has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These are proceedings as to the parenting of the children of the first respondent (“the father”) and the second respondent (“the mother”), being X born in 2010 and Y born in 2010, (collectively “the children”). The applicant in these substantive proceedings is Mr Najm (“the paternal grandfather”).
The trial event in this matter commenced before me listed over four days on 21 February 2022. This is the second day of the trial event.
The paternal grandfather seeks orders as to sole parental responsibility of the children and that they live with him. He seeks orders as to the children spending unsupervised time with the mother for two periods of two hours during the school term, and for no time to be spent during the school holiday periods. The terms of the mother’s time are subject to conditions. He seeks a further injunctive order restraining the mother from permitting the children to come into contact with “members of the mother’s immediate and extended family during her time with the children” (sic) pursuant to the orders sought. One such person included in this broad category of individuals is the maternal grandfather, Mr D (“the maternal grandfather”).
The mother seeks orders for “joint parental responsibility” of the children as between her and the paternal grandfather to operate for a period of six months over which time the mother will exercise a graduated increase in time spent with the children. At the conclusion of the six-month period, she seeks an order for sole parental responsibility of the children, for the children to live with her, and for thereafter the paternal grandfather to spend alternate weekends with the children. She seeks an order that the children not be cared for by the father and that he not be present on occasions when the children spend time with the paternal grandfather.
It is uncontroversial that the father has not engaged in the proceedings since 2019. He has not filed any response to the paternal grandfather’s Initiating Application for final relief agitated as against the mother. His solicitors filed a Notice of Ceasing to Act on 6 May 2020. The father appeared by telephone on 21 February 2022. He confirmed that he did not wish to participate as a party in the proceedings, that he did not seek any orders on his own behalf as to the parenting of his children, that he supported the paternal grandfather’s final relief sought and the paternal grandfather’s case. He said that he proposed to give evidence in the paternal grandfather’s case.
The single parenting expert, Dr E, prepared a family report for the purposes of the proceedings dated 29 July 2020. That document is Court Exhibit X1 (“the Family Report”).
The Independent Children’s Lawyer filed an Outline of Case document in which she tentatively supports orders in general terms as recommended by Dr E, such that the mother’s time with the children should increase to majority care. The Independent Children’s Lawyer reserves her position to formulate a Minute of Orders Sought and her final submissions as to orders, depending on the testing of the evidence and on Dr E considering the evidence filed in the proceedings since the Family Report was released in July 2020.
Each of the paternal grandfather and the mother have identified by way of their respective Case Outline documents the affidavit evidence relied upon for the purpose of the trial.
Relevant to an objection taken by the mother, the paternal grandfather reads his affidavit filed on 16 April 2021, his affidavit filed 23 December 2021 and an affidavit of Mr C a translator filed 11 December 2019.
These are child-related proceedings conducted pursuant to Part VII, Division 12A of the Family Law Act 1975 (Cth) (‘the Act”). By way of s 69ZT of the Act, certain provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply to these child-related proceedings – specifically as to hearsay, opinion and admissions. Section 69ZT(2) of the Act provides that the Court may give such weight (if any) to evidence admitted as a consequence of the identified provisions of the Evidence Act not applying. No application has been made in this matter for any of the excluded provisions of the Evidence Act to apply pursuant to s 69ZT(3) of the Act.
The mother takes objection to the following parts of the affidavit evidence as relied upon by the Paternal Grandfather broadly described as translations from the K Language to the English language of a 2014 telephone conversation between the mother and Ms F recorded by the paternal grandfather. The specified objections are:
(a)Paragraph 22 of the paternal grandfather’s affidavit filed on 16 April 2021 from the words “I then without [Ms F’s] knowledge recorded the conversation on my telephone…”, to the end of the paragraph concluding with the words “…in bold font on the transcription”. Objection was also taken to Exhibit 1 of that affidavit, being pages 17 to 22 inclusive, being a report and transcription of Mr C dated 12 November 2019; and
(b)The second specified objection is to Exhibit 1 to the affidavit of the paternal grandfather filed 23 December 2021. This is pages 10 through to 19 of the exhibits to the affidavit, being is a second or updated report and transcription of Mr C dated 7 December 2019; and
(c)The last objection is to the entirety of the affidavit of Mr C filed on 11 December 2019.
The mother sought that the identified portions of the affidavit evidence relied upon by the paternal grandfather at trial be struck out pursuant to s 138 of the Evidence Act, or on the alternative by way of s 135 of the Evidence Act. The paternal grandfather pressed the evidence to which objection was taken. Submissions were made by the Independent Children’s Lawyer as to the identification of relevant legislation and principle going to the objection, and as to the probative value of the evidence subject to the objection.
Each participating party and the Independent Children’s Lawyer during the course of submissions identified portions of the objected material for the purposes of the evidentiary determination.
The evidence of the paternal grandfather as to the circumstances of the recording in his affidavit of 16 April 2021 at paragraph 22 is as follows:
Sometime in 2014, a friend, [Ms F], Ms G and I were visiting our daughter, Ms H, in Ms H’s home. When I saw [the mother] in Ms H’s home, she and I said to one another words to the effect:-
[Ms F]:“[The mother] has told me that she was raped by her father when she was a child.”
Me:“Please call her now and see if she will tell you again about having been raped by her father. I want to hear it. Please put the call on speaker.”
[Ms F]: “Ok I will.”
I then observed [Ms F] to make a call from her phone. She put the call on its speaker mode and I was able to listen to the person who [Ms F] was speaking to. I recognised the other person’s voice to be [the mother’s]. I then, without [Ms F’s] knowledge, recorded the conversation on my telephone…
The paternal grandfather thereafter gives some evidence in this paragraph as to his recollection of overhearing the conversation between Ms F and the mother, and particulars of that conversation.
The translation of the recorded conversation from K Language to English was undertaken by Mr C, a person accredited by the National Accreditation Authority for Translators and Interpreters (“NAATI”). No issue was taken with Mr C’s qualification and experience to provide an expert translation of the recorded conversation.
Mr C in his report dated 12 November 2019 recorded:
(a)The tape provided by the paternal grandfather by way of his solicitor on 23 September 2019 is a reel-to-reel type;
(b)The audio is extremely difficult to understand as the background noise is very high, indeed dominant; and
(c)A conversion of the tape to digital USB (assumed to be undertaken by Mr C, the evidence on the identity of the person who undertook the conversion being unclear) did not improve the quality of the recording.
The translator expresses an opinion that the microphone or some other recording method was placed closer to one woman speaking, affecting the comprehension of what the other woman was saying. He opined that the degree of understanding of a scale out of ten is five for the first woman (that is, I read that as a 50 per cent degree of understanding) and one for the other (I read that as a 10 per cent degree of understanding). He further opined that the woman closer to the microphone tended to ask questions or repeat what the other woman was saying.
It is uncontroversial that the first identified woman is Ms F and that the other woman, the participant whose degree of understanding of a scale out of ten is one, is the mother. Ms F swore an affidavit in the proceedings on 21 November 2019. The paternal grandfather does not read Ms F’s affidavit for the purposes of the trial.
The parents and the paternal grandfather attended interviews and assessments with Dr E on 12 May 2020.
In her attendance upon Dr E in May 2020 the mother said that she had “found” that the paternal grandfather had recorded her while she was on speakerphone in a conversation she had with Ms F without her knowledge. In May 2020 the mother confirmed that a translated and transcribed document recording the conversation had been filed with the Court. The mother told the expert that she had lied about her father sexually assaulting her.
The paternal grandfather told the expert that the maternal grandfather, Mr D, was “tough, very vicious”. He told Dr E, “I am not sure if [the mother] is a liar, she said dad did sex with her when she was 13 years old, and also her brother and uncle”. The report of the expert and the paternal grandfather’s affidavit records a significant animosity between each of the extended families of the parents. The paternal grandfather told the expert “if [the mother] was living alone it would be different but her family is bad”.
Section 138 of the Evidence Act provides that evidence that was obtained improperly or in contravention of Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way that the evidence was obtained.
The onus is on the party seeking to exclude the evidence to establish that it is improperly or unlawfully obtained (Parker v Comptroller-General of Customs (2009) 83 ALJR 494, per French CJ). The qualified proscription in s 138(1) that the “evidence is not to be admitted unless” indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness.
Section 135 of the Evidence Act provides that a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in an undue waste of time.
As to the s 138 objection, counsel for the mother submitted that the recording by the paternal grandfather of the 2014 speakerphone conversation between the mother and Ms F, using his phone, was illegal by application of s 7 of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Act”). Hence, the evidence by way of the reports of Mr C as to the translation of the K Language conversation into English ought to be struck out.
Section 7(1) of the Surveillance Act makes it an offence to record a private conversation. However, s 7(3)(b) provides that s 7(1)(b) does not apply to the use of a listening device by a party to the private conversation if the principal party to the conversation consents to the listening device being used or is reasonably necessary for the protection of the lawful interests of that principal party. The paternal grandfather’s affidavit evidence clearly establishes that:
(a)He is not a party to the private conversation between Ms F and the mother; and
(b)He did not seek Ms F’s express or implied consent to record the private conversation between Ms F and the mother.
There is no evidence as to the mother being requested to consent to the conversation being recorded.
It was not submitted that the paternal grandfather, to his credit, that he was a principal party to the conversation and hence any exemption from the application of s 7 of the Surveillance Act, such that the paternal grandfather recorded the conversation “for the protection” of his “lawful interest” cannot apply.
I am satisfied and find that, for the purposes of the objection taken by the mother pursuant to s 138 of the Evidence Act, the recording of the 2014 private conversation between Ms F and the mother was obtained improperly and in contravention of an Australian law. Each of the related transcripts, as prepared by Mr C dated 12 November 2019 and 7 December 2019 recording some of the same private conversation between Ms F and the mother, subject to any exercise of discretion, ought not be admitted into evidence unless the desirability of admitting that evidence outweighs the undesirability of the admission.
I reject the objection taken by the mother to the balance of paragraph 22 of the paternal grandfather’s affidavit filed on 16 April 2021. I will come to reasons for that rejection shortly. In short, the paternal grandfather can quite properly give evidence of what he hears by way of a conversation between the mother and Ms F.
Section 138 of the Evidence Act imports a balancing exercise as to whether to admit the evidence. Subsection 138(3) of the Evidence Act requires any exercise of discretion to admit the improperly obtained material to take into account a number of factors. Relevantly to this matter, they include the probative value of the material improperly obtained sought to be adduced, the importance of the evidence in the proceedings, the gravity or the impropriety of the contravention, and whether the impropriety or contravention was conscious or reckless.
Counsel for the mother identifies that:
(a)There are lacunas in the evidence as to the process of the paternal grandfather recording the translated conversation identified in each of Mr C reports dated 12 November 2019 and 7 December 2019 being from “on his phone” and then transferred, either edited or unedited, to a reel-to-reel tape recording and that thereafter being transferred to a digital format; and
(b)There is no evidence as to the expertise of the person undertaking each transfer of the recording, nor as to there not being any absence or positive evidence as to any altering to the recording; and
(c)The second report of Mr C dated 7 December 2019, records that another person at “J Company” undertook a process whereby there was a combination of the digital recording and the reel-to-reel tape recording in an effort to undertake an enhancement of the noise reduction exercise, but that did not improve the “clarity of the [women’s] much”. This other person is not giving evidence in the proceedings; and
(d)That the person engaged in the conversation with the mother, Ms F, is not giving evidence in the father’s case and it is submitted that hence her role in the process and her recollection of the conversation cannot be tested.
The gravamen of the mother’s submissions was that the translation of the recorded conversation has low probative value and little importance in the proceedings. The mother submits that the gravity of the impropriety and contravention being at least reckless ought to ground discretion to refuse to admit the evidence.
The paternal grandfather confirmed that he will seek a finding of fact in the trial that the maternal grandfather has occasioned sexual violence upon his daughter, the mother. Counsel for the paternal grandfather acknowledged that this is a very serious allegation to make, and to press for a positive finding mandates an available foundation in the evidence to achieve the level of satisfaction identified in s 140(2), of the Evidence Act
Counsel for the paternal grandfather initially submitted that there were other portions of the evidence whereby the mother had made admissions to other persons or parties. He could not identify the other foundations in the evidence to support that finding of serious sexual violence occasioned by the maternal grandfather on the mother at this time. Implicitly, the paternal grandfather submitted that the improperly obtained evidence is relevant to the parenting regime of the children while in the mother’s care. As to the evidentiary foundation grounding the injunctive order sought against bringing the children into contact with the maternal family, the paternal grandfather contended that the recordings are powerful qualitative evidence of admissions made by the mother.
It is important to remember that the recording itself in the K Language is not in evidence. It is not possible for me to listen to and comprehend or understand the recording in the English language. The first translation of Mr C dated 12 November 2019 records approximately 60 leading questions from Ms F directed to the mother, of which about eight replies are translated. The second report dated 7 December 2019 has Mr C recording a noise reduction exercise was conducted on the tape, which reduced the background noise substantially. That said, the responses of the mother in the second report more often than not appear to be by way of some words only, or part-replies and then are followed by the word illegible. These additional inclusions make it clear that only part of numerous answers have been translated.
An observation of each of the translations sets out clearly these deficiencies. By way of example, page 20 of the paternal grandfather’s affidavit records Mr C’s transcription of 12 November 2019 as follows:
[Ms F:] I was sitting yesterday thinking of….
[The Mother:] XXXXX XXXXX XX
[Ms F:] What can I say, don’t be angry with me, now you 5 years
[The Mother:] XXXXX XXXXX XX
[Ms F:]This brother of yours [the mother], he is the first to do this with you? Where is he?
[The Mother:] XXXXX XXXXX XX
[Ms F:] He was the first to do this with you
[The Mother:] XXXXX XXXXX XX
[Ms F:] Aren’t you angry with him!
[The Mother:] XXXXX XXXXX XX
[Ms F:] What can I say, shame – shame
[The Mother:] XXXXX XXXXX XX
[Ms F:] How could this be like that, the boy’s age is 16 years
[The Mother:] XXXXX XXXXX XX
[Ms F:] I think he was the first to rape you – he was the first to sleep with you.
[The Mother:] XXXXX XXXXX XX It was for 5 minutes.
[Ms F:] Your father, would have told the boy?
[The Mother:] XXXXX XXXXX XX
[Ms F:] How could your father tell him to go and sleep with you!
[The Mother:] XXXXX XXXXX XX
[Ms F:] The first who did this was your brother, your father did!
[The Mother:] He said we should be alone to sleep with me XXXXX XXXXX XX
XXXXX XXXXX XX It took 8 minutes
[Ms F:] What happened after that?
[The Mother:] XXXXX XXXXX XX
[Ms F:] The first time he did it, how did he take your clothes off?
[The Mother:] XXXXX XXXXX XX
[Ms F:] He raped you… he slept with you?
[The Mother:] XXXXX XXXXX XX
[Ms F:] What happened after?
[The Mother:] XXXXX XXXXX XX
XXXXX XXXXX XX He did it in the backyard.
[Ms F:] What did he tell you?
[The Mother:] XXXXX XXXXX XX
[Ms F:] His age was 13 years – H raped you
[The Mother:] XXXXX XXXXX XX
[Ms F:] That was the first time, what happened after the first time?
[The Mother:] XXXXX XXXXX XX
[Ms F:] You can say that – he was the first to rape you.
He was 11 years old.
[The Mother:] He was 13
(As it was recorded)
The same passage is detailed at page 13 of the paternal grandfather’s affidavit dated 23 December 2021. It records as follows:
[Ms F:]Ms Farhan, I was sitting yesterday thinking of you. Now 5 years and your brother did these things with you! They made you suffer.
[the Mother:] (Illegible)
[Ms F:]Ms Farhan what can I say, don’t be angry with me, now you 5 years, you suffered Ms Farhan don’t be angry with me and this brother is he the first to do this with you?
[the Mother:] There is another one
[Ms F:]So where is he now? This brother of yours Ms Farhan, he is the first do this with you?
[the Mother:] (Illegible) Somewhere.
[Ms F:]He was the first to do this with you. Shame Shame, 5 years Ms Farhan, were you the first? You are 17 years.
[the Mother:] (Illegible) slept with me, I say 5 years.
[Ms F:]What can I say, shame – shame
Don’t be angry with me, it is your brother who raped you first
How could this be like that, the boy’s is, the first boy, how can it he sleep with you the first year?
[the Mother:] (Illegible) 4 or 5 years
[Ms F:]The first who did this was your brother, 4 04 5 times
[the Mother:] He said we should be alone to sleep with me (illegible) he said it will take 5 minutes. (Illegible) 3 years the first day.
[Ms F:]After that what happened?
[the Mother:] (Illegible) It took 5 or 6 minutes.
[Ms F:]What happened after?
Your father, would have told the boy?
The first time he did it, how did he take your clothes off? What happened?
[the Mother:] (Illegible) 4 or 5 times
[Ms F:]He raped you, the first to sleep with you? It happened that year for the first time.
what happened? How did it happen the first time?
[the Mother:] Took my clothes off it took 5 minutes in the (illegible) 4 or 5 times.
[Ms F:]What happened after what he do with you? No one was in the garden?
[the Mother:] The first 5 years?
[Ms F:]Ya, what did he tell you?
(Illegible) about one or two weeks. He was 15.
(As it was recorded)
The paternal grandfather seeks to rely on each version. It is self-evident that each translated version is markedly different by way of question and answer.
When identifying the transcript in each of his affidavits, the paternal grandfather says words to the effect, “I recall [the mother] saying words to the effect which are printed in bold font on the transcription.” He also says that Mr C’s transcription, each version, is accurate insomuch as he recalls Ms F saying words to the effect accorded to that witness, and the mother saying words by way of response.
An objective reading of the transcript coupled with Mr C’s observation strongly suggests that Ms F conducted herself in a particular way, seeking to adduce confirmation in a forensic process to assist the paternal grandfather, the questioning having an “element of setup”. These matters attract weight when considering to the probative value and importance of the subject matter for the purposes of s 138 of the Evidence Act.
The dictionary to the Evidence Act records “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. This overlaps with the definition of relevance.
Having regard to what the paternal grandfather contends is a significant issue in the proceedings relating to the parenting of the children, it must be assumed that the transcripts have some relevance. They not devoid of probative value to that issue. That said, the assessment of the probative value of the translations depends substantially, if not entirely, on the estimation of its value relative to other evidence relied upon by the parties.
It is difficult to give material value to the recordings in circumstances where, at its highest, only parts of the conversation in question can be put into evidence by that process. This is compounded by Ms F not giving evidence in the proceedings. Total resort need not be made to the differing versions of the translations recorded in each of Mr C’s reports. Each of the mother, the maternal grandfather and the paternal grandfather are available to give evidence and can be cross-examined.
The marked difference in each translation makes it almost impossible to ensure that the content and context of the translated conversation can be reliably determined.
In Masri and Masri [2017] FamCA 539, Hannam J said:
32.It is not difficult to simply set out a version of the conversation and conduct in question and have the court determine the matter in the usual way.
I find this to be apposite to the circumstances of the translated recording. The mother and the maternal grandfather will be able to test each of their recollections of the conversation in cross-examination.
In the circumstances, I reject any exercise of discretion as contained within s 138 of the Evidence Act to admit the translated transcript prepared by Mr C dated 12 November 2019 and 7 December 2019, being Exhibit 1 to the paternal grandfather’s affidavit dated 21 April 2021, and Exhibit 1 to the affidavit of the paternal grandfather filed 23 December 2021, and those documents are struck out.
The balance of the objection is rejected. It will be a matter for the paternal grandfather to ascertain whether he continues to read the affidavit of Mr C, and the mother and the independent children’s lawyer can determine whether they wish to answer and whether they require Mr C for cross-examination.
If I am wrong about the s 138 Evidence Act determination, s 135 of the Evidence Act provides the discretion to exclude evidence if its probative value is substantially outweighed by the dangers that the evidence might be unfairly prejudicial to a party, or misleading or confusing or cause it to result in an undue waste of time. Evidence is not unfairly prejudicial merely because it tends to damage the case of the other party or support the case of the other. There is always a degree of unfairness to one party. That unfairness can be alleviated by the opportunity to cross-examine.
The Full Court Gorman & Huffman & Anor [2016] FamCAFC 174 said at [204]:
There are also complaints made by the mother that “the extracts and or tape recordings were reconstructed”, and that the conversations chosen were “staged”, but once again these complaints are misconceived. They do not go to the question of admissibility, and they can only go to the weight to be attached to the evidence once admitted.
That said, I find the probative value of each translation is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the mother for the reasons that I have identified, that is the content and context of the conversations are incomplete.
There is an incapacity to ensure that the evidence can be safely dealt with in the course of this trial, having regard to the deficiencies identified in these reasons to date. I further find that the admission of the evidence would cause or result in an undue waste of time in that the cross-examiner would be unable to put with precision the entire context and content of previous questions and answers leading to subsequent questions and answers arising from the translated transcript. Again, there can be no independent verification by way of the audio document as to what was said by each of the participants to the conversation. I am confident that this course will not prejudice the maternal grandfather. It is his evidence that he has a clear recollection of the conversations. It is further his evidence that whatever is contained in the various versions of the transcripts are accurate.
His counsel will have the opportunity to formulate questions arising from his instructions and from the transcription with some safety and certainty, and it will be an event that, subject to the advice he receives, may be pursued in cross-examination. For these reasons, I would also reject the reports of Mr C dated 12 November 2019 and 7 December 2019 as recorded earlier in these reasons and would again strike them out by way of a discretion pursuant to s 135 of the Evidence Act.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 2 March 2022
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