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

[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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Decision last updated: 17 November 2015