R v A2; R v KM; R v Vaziri (No. 12)

[2015] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation:	R v A2; R v KM; R v Vaziri (No. 12) [2015] NSWSC 1542
Hearing dates:	13 October 2015
Date of orders:	13 October 2015
Decision date:	13 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Application to cross-examine A3 under s.38 Evidence Act 1995 on additional topic refused.
Catchwords:	CRIMINAL LAW - Crown granted leave under s.38 Evidence Act 1995 to cross-examine Crown witness (A3) on certain topics - Crown makes further application for leave on a topic previously refused - application for leave on additional topic refused
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v A2; R v KM; R v Vaziri (No. 11) [2015] NSWSC 1541
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 further application by crown for leave to cross-examine a3 under s.38 evidence act 1995 - t1077)

1. JOHNSON J: The Crown has this morning sought to reagitate an application under s.38 Evidence Act 1995 for leave to cross-examine A3 with respect to what has been described as the “Africa checking” story.

2. Yesterday, I declined to grant leave under s.38 with respect to that issue: R v A2; R v KM; R v Vaziri (No. 11) [2015] NSWSC 1541 at [8]-[9].

3. However, the Crown was allowed to refresh the memory of the witness in Court under s.32 Evidence Act 1995 by the playing of the tape, the transcript of which is Exhibit AA, Tab 15. The Crown had been permitted to play that tape for other purposes as part of a grant of leave under s.38.

4. The Crown submits that the answers given by A3 demonstrate unfavourability for the purpose of s.38. Reference has been made to answers given by the witness, in particular after s.38 leave was granted (at T1060 and T1031). Reliance was placed upon two references which preceded the s.38 grant as well.

5. The issue of the “Africa checking” story must be approached upon the basis that the Crown contends that the story is untrue and constitutes a lie which may operate against each of the Accused persons. Counsel for the Accused persons accept that the “Africa checking” story was untrue, although I understand that what will be contended is that it was the product of panic as a story to explain what had happened, although not in a manner which serves to incriminate the Accused persons. Accordingly, the “Africa checking” story is not advanced by anyone in this trial as being the truth.

6. The real issue will be why the “Africa checking” story was advanced, in particular to the extent that any of the Accused persons advanced it or acquiesced in it.

7. The point was reached yesterday (at T1058) where A3, when asked questions after refreshing her memory under s.32, said, by reference to the Africa checking story, that:

“There was a lot of panicking and all that sort of thing.”

And:

“It was a shock to everyone's system.”

And:

“In that context this was being said.”

8. She proceeded to say:

“But now the truth is there about symbolic khatna so why all this fuss? I don't understand.”

9. If allowed leave to cross-examine the witness on the “Africa checking” story, the Crown would press the use of the documents identified in MFI56 (at points 4 and 5), as well as the reference (in point 1) about which some questions have already been asked.

10. Given the point that has been reached in the evidence of the present witness, I am not satisfied that the evidence represents a state of unfavourability to the Crown so as to warrant the grant of leave under s.38.

11. I take into account, as well, the fact that the Crown, if leave was granted, would seek to put before the jury at least one transcript and tape which is not presently in evidence (Exhibit PTK, Tab 32). I emphasise, however, that the Crown already has leave under s.38 to cross-examine on "khatna", and the understanding of the witness of the term "khatna".

12. To the extent that the witness has, in answering a question about the “Africa checking” story, used the terms “panic” and “shock”, and then added a comment about "symbolic khatna", the grant of leave already made to cross-examine about "khatna" will permit the Crown to cross-examine further on the answers (at T1058 and T1060). However, I am not persuaded, in particular having regard to s.192 considerations, that taking this witness to other discussions in other conversations on the same topic will advance the position.

13. In my view, the position of the Crown is sufficiently protected if questioning occurs within the parameters of the existing grant of leave. That is the ruling which I make with respect to the Crown's further application.

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