R v A2; R v KM; R v Vaziri (No. 10)

Case [2015] NSWSC 1540

Supreme Court


New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 10) [2015] NSWSC 1540
Hearing dates:9 October 2015
Date of orders: 09 October 2015
Decision date: 09 October 2015
Jurisdiction:Common Law - Criminal
Before: Johnson J
Decision:

Evidence admitted as part of grant of leave under s.38 Evidence Act 1995, will be admitted for all purposes

Catchwords: CRIMINAL LAW - Crown granted leave to cross-examine Crown witness (A5) under s.38 Evidence Act 1995 - limiting order sought by defence counsel - Court declines to make limiting order - evidence to be admitted for all purposes
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 defence application for a limiting order - T943)

  1. JOHNSON J: Following the judgment which I have recently delivered with respect to the Crown’s application under s.38 Evidence Act 1995 concerning A5 (R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491), counsel for the Accused persons have made further submissions on a consequential topic.

  2. Mr Sutherland SC has raised for consideration the provisions in ss.43 and 44 Evidence Act 1995 concerning prior inconsistent statements and previous representations.

  3. I do not think that these provisions bear upon the present situation, in that leave has been granted to the Crown under s.38 on all three bases under s.38(1)(a), (b) and (c). The matter is not confined to prior inconsistent statements.

  4. A further submission was made by Mr Bouveng, supported by Mr Sutherland SC, that there ought be, in effect, a limiting order made concerning the use of the material in Exhibit PTK, Tab 6 and Exhibit PTK, Tab 15, the transcripts of the telephone conversations. It is submitted that the Court should limit the use of this material to the purpose of drawing inconsistencies to the attention of A5, and not as evidence of the truth of what A5 or A1 said in the conversations.

  5. The Crown submits that, having reached this point, the material should go in for all purposes.

  6. The two parties to these conversations are Crown witnesses. The present witness, of course, is A5. The other party, A1, will be called in the Crown case next week. Given the preliminary ruling made as contained in R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472, the present issue will inevitably arise again with A1.

  7. I am satisfied that the conversations and the transcripts should go in for all purposes. I do not think a restriction of the type sought by Mr Bouveng is appropriate, nor do I think that it is entirely consistent with the purpose of s.38, to which I have already made reference.

  8. Accordingly, the disks and, in particular, the transcripts will go in for all purposes.

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Details
AGLC
R v A2; R v KM; R v Vaziri (No. 10) [2015] NSWSC 1540
Case
[2015] NSWSC 1540
Decision Date

CaseChat Overview and Summary

The case before the court involved three defendants, A2, KM, and Vaziri, who were on trial for various criminal offences. The prosecution sought to cross-examine a witness, A5, who had previously given evidence in the trial. The defence counsel applied for a limiting order to restrict the use of A5's cross-examination evidence, arguing it would be unfair and prejudicial to the defendants. The court was tasked with deciding whether to grant the limiting order sought by the defence counsel.

The legal issue at the heart of this case was the scope of the cross-examination of a witness and the admissibility of the resulting evidence. The court had to consider whether the potential prejudice to the defendants from the cross-examination outweighed the probative value of the evidence for the prosecution. The defence argued that the cross-examination was unnecessary and would only serve to confuse the issues and prejudice the defendants. The prosecution, on the other hand, contended that the cross-examination was essential to challenge the credibility and reliability of A5's evidence, and to ensure a fair trial for all parties.

In delivering its decision, the court found that the potential prejudice to the defendants from the cross-examination did not outweigh the probative value of the evidence for the prosecution. The court held that the evidence obtained from the cross-examination of A5 was relevant and necessary to challenge the witness's credibility and to ensure a fair trial. The court also considered the provisions of the Evidence Act 1995 and found that the granting of a limiting order would not be appropriate in this case. As a result, the court declined to make a limiting order and allowed the evidence obtained from the cross-examination of A5 to be admitted for all purposes in the trial. The defendants' application for a limiting order was thus dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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