R v A2; R v KM; R v Vaziri (No. 16)
[2015] NSWSC 1581
•20 October 2015
Supreme Court
New South Wales
Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 16) [2015] NSWSC 1581 Hearing dates: 20 October 2015 Date of orders: 20 October 2015 Decision date: 20 October 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Evidence of Dr Marks’ practice allowed; opinion evidence concerning C1’s account disallowed.
Catchwords: CRIMINAL LAW - Crown seeks to adduce evidence from paediatrician concerning her use of distracting or dissociate techniques when examining children - evidence allowed - Crown seeks opinion from paediatrician concerning C1’s account of alleged use of distracting or dissociative techniques prior to alleged FGM offence upon C1 - evidence disallowed Legislation Cited: --- Cases Cited: --- Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
A2 (Accused)
KM (Accused)
Shabbir Mohammedbhai Vaziri (Accused)Representation: Counsel:
Solicitors:
Ms NL Williams (Crown)
Mr RF Sutherland SC (Accused A2 and Vaziri)
Mr S Bouveng (Accused KM)
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 BY CROWN TO ADDUCE FURTHER EVIDENCE FROM DR MARKS - T1471)
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JOHNSON J: The Crown is in the process of examining-in-chief the final witness in the Crown case, Dr Susan Marks.
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Dr Marks is a paediatrician who works as a Staff Specialist at the Children's Hospital at Westmead, working in the Child Protection area. Dr Marks carried out physical examinations of C1 and C2, about which she has already given evidence.
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The Crown has foreshadowed a desire to adduce evidence from Dr Marks with respect to what might be described as distracting techniques utilised when a younger child is being examined, in particular, in the genital area. Dr Marks has given evidence (on the voir dire) of measures which she uses in this respect.
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Mr Sutherland SC does not object to evidence being adduced of that type. I am satisfied that evidence of that type may be adduced from Dr Marks. It is, in truth, common-sense evidence of a type that would be well-known to any parent who has taken a child to a doctor or a dentist, or otherwise in their own lives, is involved in treatment of a child which may involve the infliction of some temporary hurt to the child. That evidence will be allowed.
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The Crown wishes to utilise the term "dissociative technique" to describe this type of conduct. Mr Sutherland SC objects to the use of that term as it introduces a type of psychological opinion in circumstances where Dr Marks has no expertise in that field. It seems to me that the term "dissociative technique" may be utilised, in a general sense, to describe this conduct. However, it is quite clear that Dr Marks is in no position to express any psychological or psychiatric opinion about matters of this type. I will allow the term to be used, but if I detect that opinions are sought from her which go beyond the mere use of that as a label for what she does, I would not allow it.
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The Crown also seeks to place before Dr Marks the scenario described in the recorded interview of C1, whereby she said that she was asked before the procedure giving rise to this trial, to think of a garden as if she (C1) was a princess in a garden, to close her eyes and to think about somewhere nice. The Crown seeks to put that scenario to Dr Marks and to seek, in effect, the opinion of Dr Marks as to whether that is a form of “dissociative technique”.
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I am not persuaded that Dr Marks is qualified to express that opinion about that scenario. In my view, to seek to adduce evidence of that type from this medical practitioner would seek a psychological or psychiatric opinion from a practitioner who is not duly qualified to give it.
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It will be open to the Crown to advance such submissions as are proper and open on the evidence as to what C1 described as the preamble to the events concerning her.
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However, I will not allow the Crown to invite Dr Marks to make a comment, or express an opinion, as to what was said to have been happening when words were used to C1 in advance of the event in question at A3’s house in Wollongong.
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Accordingly, the rulings I make, arising from the voir dire, are as I have set out.
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Decision last updated: 18 November 2015
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