R v A2; R v KM; R v Vaziri (No. 14)

[2015] NSWSC 1544

Supreme Court

New South Wales

Case Name:	R v A2; R v KM; R v Vaziri (No. 14)
Medium Neutral Citation:	[2015] NSWSC 1544
Hearing Date(s):	15 October 2015
Date of Orders:	15 October 2015
Decision Date:	15 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Crown application under s.42 Evidence Act 1995 refused.
Catchwords:	CRIMINAL LAW - Crown application under s.42 Evidence Act 1995 that defence counsel be prevented from using leading questions in cross-examination on certain topics of Crown witness who was the husband of one of the Accused - witness had been cross-examined by Crown by leave under s.38 Evidence Act 1995 - Crown application under s.42 refused
Legislation Cited:	Evidence Act 1995
Cases Cited:	Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 R v A2; R v KM; R v Vaziri (No. 13) [2015] NSWSC 1543 R v Xie (No. 13) [2015] NSWSC 2125
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 APPLICATION UNDER S.42 EVIDENCE ACT 1995 TO PRECLUDE THE USE OF LEADING QUESTIONS IN CROSS-EXAMINATION OF A1 ON CERTAIN TOPICS - T1271)

1. JOHNSON J: The Crown Prosecutor has made application under s.42 Evidence Act 1995, in advance of cross-examination of A1, for an order preventing the use of leading questions by counsel for the Accused persons with respect to four areas.

2. The areas nominated are:

   (a)the witness' understanding of "khatna";

   (b)the witness' understanding of "khatna" as explained to him by the Accused, A2;

   (c)the role of the Accused KM in the community; and

   (d)the issue of complaint by C1 and C2.

3. The Crown obtained a substantial grant of leave to cross-examine A1 under s.38 Evidence Act 1995 on these topics, which led to significant questioning of the witness yesterday: R v A2; R v KM; R v Vaziri (No. 13) [2015] NSWSC 1543.

4. Insofar as the Crown points to aspects of s.42 which may be activated here, it is the case that some evidence has been given by the witness in examination-in-chief which is unfavourable to the Crown (s.42(2)(a)). So much was recognised in a number of the findings I made granting leave to the Crown under s.38. It is self-evident that A1 has an interest consistent with the interest of the cross-examiners in this case, at least with respect to senior counsel who appears for A2, his wife (s.42(2)(b)). In these circumstances, it may be said that the witness may be sympathetic to the party conducting the cross-examination (s.42(2)(c)).

5. Accordingly, some factors in s.42(2)(a), (b) and (c) may be regarded as live ones in this case. I do not regard s.42(2)(d) as having any application.

6. The question, however, is whether s.42(3) is satisfied. The Court is to disallow a question, or direct the witness not to answer it, if the Court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

7. The judgment of Fullerton J in R v Xie (No. 13) [2015] NSWSC 2125 contains a helpful analysis of the manner in which a court should approach a s.42 application. There, her Honour undertook a topic-by-topic examination, in circumstances where the Crown application related to questioning that had yet to be undertaken. As her Honour observed at [11], Kathy Lin was a most important witness in that case, as there were circumstances where she was the only witness available to the Crown. That is not this case. The Crown has witnesses (A3 and A5) who were in the rooms on the occasions when the events under consideration took place.

8. The principal role of A1 as a Crown witness is to allow the adducing of evidence of certain factual matters which are largely not in dispute, but then as to conversations which he had with A2 and others, which are almost entirely recorded by way of surveillance device or telephone intercept.

9. It might be said, consistent with Heydon J’s observation in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 586-587 [117] (referred to by Fullerton J in R v Xie (No. 13) at [9]), that if it was apparent that there was “gratuitous concurrence” by the witness with propositions put by the cross-examiner (one of whom represents A1’s wife), then that in itself would not assist the cross-examiner's client.

10. The real issue is whether a foundation under s.42(3) has been established. In circumstances of thorough cross-examination on these topics by the Crown pursuant to s.38, I am not satisfied that the facts concerned would be better ascertained if leading questions were not used in cross-examination of A1 by counsel for the Accused persons. As I have said, it may be that the use of leading questions may not greatly assist the case for a particular Accused person.

11. No basis has been demonstrated, in my view, for the making of an order under s.42 with respect to topics identified by the Crown and I decline to make the order.

    *********

Amendments

02 March 2017 - R v Xie (No. 13) previously unreported. Now reported - R v Xie (No. 13) [2015] NSWSC 2125.