R v A2; R v KM; R v Vaziri (No. 4)

[2015] NSWSC 1306

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306
Hearing dates:	17 and 18 June 2015
Date of orders:	06 August 2015
Decision date:	08 September 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. For the purpose of s.13 Evidence Act 1995, I am satisfied that C2 is competent to give sworn evidence at the trial of the Accused persons. 2. I overrule the objection under s.18 Evidence Act 1995 by C1 and C2 to giving evidence at the trial of the Accused persons (in particular, A2). 3. Given the conclusion reached concerning the s.18 objections, it is not strictly necessary to express a view concerning the Crown application under s.65 Evidence Act 1995 (although a brief view will be expressed on this issue).
Catchwords:	CRIMINAL LAW – pre-trial application – competence and compellability of witnesses (ss.13 and 18 Evidence Act 1995) – Accused persons charged with female genital mutilation offences against two girls (C1 and C2) – mother of C1 and C2 is an Accused person – whether C2 is competent to give evidence at trial – C2 able to understand the difference between truth and lie and engage with questions concerning facts – C2 competent to give sworn evidence at trial – whether C1 and/or C2 are compellable to give evidence at trial – likelihood of psychological harm and harm to relationship if C1 and/or C2 called to give evidence – factors relevant to balancing exercise under s.18(6) - nature and extent of harm does not outweigh the desirability of C1 and C2 giving evidence – application declined – operation of s.65 Evidence Act 1995 considered in obiter remarks
Legislation Cited:	Crimes (Female Genital Mutilation) Amendment Act 1994 Crimes Act 1900 Crimes Amendment (Female Genital Mutilation) Act 2014 Criminal Procedure Act 1986 Evidence Act 1995 Surveillance Devices Act 2008 Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited:	Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397; 204 A Crim R 306 Fletcher v R [2015] VSCA 146 LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016; 81 NSWLR 551 Mindshare Communications Limited v Orleans Investments Pty Limited [2007] NSWSC 976 MK v R [2014] NSWCCA 274 R v BO (No. 2) [2012] NSWDC 195; 15 DCLR (NSW) 317 R v RAG [2006] NSWCCA 343 RJ v R [2010] NSWCCA 263; 208 A Crim R 174 Sanderson v Rabuntja [2014] NTSC 13
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused)
Representation:	Counsel: Ms N Noman SC (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM) Mr PJ Gow (C1 and C2)     Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused) Crawford & Duncan Lawyers (C1 and C2)
File Number(s):	2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri)
Publication restriction:	---

Judgment

1. JOHNSON J: The Accused, A2, KM and Shabbir Mohammedbhai Vaziri, are to stand trial upon charges, including allegations of female genital mutilation (“FGM”) contrary to s.45(1)(a) Crimes Act 1900 and (alternatively) assault occasioning actual bodily harm, whilst in company, under s.59(2) of that Act.

2. It is the Crown case that the Accused persons are criminally responsible, in one way or another, for the alleged mutilation of the clitoris of two young girls, C1 and C2. The Crown proposes to call C1 and C2 as witnesses at the trial. C1 and C2 are the daughters of the Accused, A2.

3. In advance of the trial, issues have arisen for determination concerning the competency of C2 to give evidence, the compellability of C1 and C2 (if competent) to give evidence because of s.18 Evidence Act 1995 and, if the girls are not compellable witnesses, the capacity of the Crown to have admitted at trial accounts given by each of them to the police by operation of s.65 Evidence Act 1995.

4. On 6 August 2015, I expressed my rulings and conclusions on these issues as follows (PT206-7):

1. for the purpose of s.13 Evidence Act 1995, I am satisfied that C2 is competent to give sworn evidence at the trial of the Accused persons;

2. I overrule the objection under s.18 Evidence Act 1995 by C1 and C2 to giving evidence at the trial of the Accused persons (in particular, A2);

3. given the conclusion reached concerning the s.18 objections, it is not strictly necessary to express a view concerning the Crown application under s.65 Evidence Act 1995 (although a brief view will be expressed on the issue).

5. I indicated that I would publish my reasons for those conclusions at a later time. These are my reasons.

The Charges Against the Accused Persons

6. KM is charged with the following offences:

1. between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900;

2. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900;

3. between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900;

4. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

7. A2 is charged with the following offences:

1. between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900;

2. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900;

3. between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900;

4. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

8. Mr Vaziri is charged with the following offences:

1. between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission by KM and A2 of the serious indictable offence of mutilating the clitoris of C1 contrary to s.45(1)(a) and s.347 Crimes Act 1900;

2. in the alternative, between the same dates and at the same place, being an accessory after the fact to the commission by KM and A2 of the serious indictable offence of, whilst in company, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900;

3. between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission by KM and A2 of the serious indictable offence of mutilating the clitoris of C2 contrary to s.45(1)(a) and s.347 Crimes Act 1900;

4. in the alternative, between the same dates and at the same place, being an accessory after the fact to the commission by KM and A2 of the serious indictable offence of, whilst in company, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900.

A Short Introduction to Relevant Persons and Events

9. The Accused in this matter are:

1. A2, the mother of C1 and C2;

2. KM, a retired midwife who, on the Crown case, conducted the FGM procedures; and

3. Mr Vaziri, the highest Dawoodi Bohra authority in Sydney, who preaches and teaches at the Auburn Mosque.

10. According to the Crown Case Statement (“CCS”), the Accused are members of the Dawoodi Bohra community. The Dawoodi Bohra community is a world-wide subsect of Shia Islam. “Khatna” (sometimes referred to in Crown materials as “Khatana”) is a term used within the community to describe female circumcision.

11. On 19 July 2012, a report was received by the Department of Family and Community Services stating that a procedure amounting to FGM had been performed on a child in the Dawoodi Bohra community.

12. Thereafter, an investigation was undertaken in which C1 and C2 were spoken to in recorded interviews.

13. C1 was born on 19 October 2003. It is the Crown case that FGM was performed upon C1 between October 2009 and August 2012.

14. C2 was born on 26 October 2005. It is the Crown case that FGM was performed upon C2 between January 2012 and August 2012.

15. It is the Crown case that A2 was present during the FGM procedure conducted on the girls, and that she encouraged KM to perform the FGM procedures. The Crown contends that A2 is liable for the FGM procedure conducted on her daughters as she was an accessory before the fact, a principal in the second degree and a party to a joint criminal enterprise with KM.

16. It is the Crown case that KM performed the FGM procedure on each of the girls and is a principal in the first degree.

17. The Crown contends that Mr Vaziri encouraged witnesses to lie in their police interviews and encouraged members of the community to tell police that they did not believe in or practise female circumcision. On the Crown case, such actions were performed, directly or indirectly, to assist A2 and KM in avoiding police detection. As such, the Crown contends that Mr Vaziri was an accessory after the fact to the offences of A2 and KM.

The Pretrial Hearing on these Issues

18. The hearing of evidence and submissions concerning these issues took place on 17 and 18 June 2015. Ms Noman SC appeared for the Crown. Mr Sutherland SC appeared for A2 and Mr Vaziri. Mr Bouveng of counsel appeared for KM. The Court granted leave to Mr Gow of counsel to appear for C1 and C2.

19. Tendered by the Crown at the hearing were the following items:

1. Exhibit PTA - a Crown bundle of documentary material relevant to the issues arising under ss.13, 18 and 65 Evidence Act 1995;

2. Exhibit PTB - a DVD containing the record of interview conducted with C2 on 29 August 2012;

3. Exhibit PTC - a letter of instructions to Dr Susan Pulman, psychologist, together with a report of Dr Pulman dated 16 April 2015 with respect to C2;

4. Exhibit PTD - a letter of instructions to Dr Pulman together with the report of Dr Pulman dated 16 April 2015 with respect to C1;

5. Exhibit PTE - a document entitled “TI Summary/Schedule” indicating telephone intercept evidence and its suggested relevance to issues under consideration in this judgment;

6. Exhibit PTF - a DVD containing the record of interview conducted with C1 on 29 August 2012.

20. Mr Gow tendered the following material:

1. Exhibit PT1 - a bundle of material including letters of instructions and reports dated 20 November 2014 and 9 March 2015 of Dr Gary Banks, psychologist, concerning C2;

2. Exhibit PT2 - a bundle of documents including a letter of instructions and report dated 14 November 2014 of Ms Alison O’Neill, psychologist, concerning C1;

3. Exhibit PT3 - Crown notice dated 12 May 2015 for the purpose of s.306V Criminal Procedure Act 1986 concerning C2;

4. Exhibit PT4 - Crown notice dated 12 May 2015 for the purpose of s.306V Criminal Procedure Act 1986 concerning C1.

21. No oral evidence was given by any witness. On 18 June 2015, I examined C2 as part of the process of determining her competency to give evidence (PT57-66).

22. No documentary or other evidence was tendered by the Accused at this pretrial hearing.

23. Counsel furnished detailed written submissions on these issues and spoke to their submissions at the hearing.

Relevant Statutory Provisions

24. Provisions contained in the Crimes Act 1900, the Evidence Act 1995 and the Criminal Procedure Act 1986 will be mentioned in this judgment. It is appropriate to set them out at this point in the judgment.

Section 45 Crimes Act 1900

25. Section 45 Crimes Act 1900 was enacted in 1994 by way of the Crimes (Female Genital Mutilation) Amendment Act 1994.

26. Section 45, as it stood at relevant times between 2009 and 2012, was in the following terms:

“45    Prohibition of female genital mutilation

(1)    A person who:

(a)    excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

(b)    aids, abets, counsels or procures a person to perform any of those acts on another person,

is liable to imprisonment for 7 years.

(2)    An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State.

(3)    It is not an offence against this section to perform a surgical operation if that operation:

(a)    is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b)    is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c)    is a sexual reassignment procedure and is performed by a medical practitioner.

(4)    In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

(5)    It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.

(6)    This section applies only to acts occurring after the commencement of the section.

(7)    In this section:

authorised professional means:

(a)    a registered midwife, or

(b)    a midwifery student, or

(c)    in relation to an operation performed in a place outside Australia - a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or

(d)    a medical student.

medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.

medical student means:

(a)    a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.

midwifery student means:

(a)    a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place.

sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.”

27. In 2014, the maximum penalty for an offence under s.45 was increased from seven years to 21 years’ imprisonment: Crimes Amendment (Female Genital Mutilation) Act 2014.

Provisions of the Evidence Act 1995

28. Sections 12 and 13 Evidence Act 1995 are relevant to the issue of C2’s competence to give evidence. Those provisions state:

“12    Competence and compellability

Except as otherwise provided by this Act:

(a)    every person is competent to give evidence, and

(b)    a person who is competent to give evidence about a fact is compellable to give that evidence.

13    Competence: lack of capacity

(1)    A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):

(a)    the person does not have the capacity to understand a question about the fact, or

(b)    the person does not have the capacity to give an answer that can be understood to a question about the fact,

and that incapacity cannot be overcome.

Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(2)    A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

(3)    A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

(4)    A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.

(5)    A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:

(a)    that it is important to tell the truth, and

(b)    that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and

(c)    that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

(6)    It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(7)    Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(8)    For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.”

29. Section 18 Evidence Act 1995 governs the issue of compellability of C1 and C2. Sections 18 and 19 of that Act state:

“18    Compellability of spouses and others in criminal proceedings generally

(1)    This section applies only in a criminal proceeding.

(2)    A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:

(a)    to give evidence, or

(b)    to give evidence of a communication between the person and the defendant,

as a witness for the prosecution.

(3)    The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4)    If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5)    If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6)    A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:

(a)    there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b)    the nature and extent of that harm outweighs the desirability of having the evidence given.

(7)    Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:

(a)    the nature and gravity of the offence for which the defendant is being prosecuted,

(b)    the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,

(c)    whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,

(d)    the nature of the relationship between the defendant and the person,

(e)    whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8)    If an objection under this section has been determined, the prosecutor may not comment on:

(a)    the objection, or

(b)    the decision of the court in relation to the objection, or

(c)    the failure of the person to give evidence.

19    Compellability of spouses and others in certain criminal proceedings

Section 18 does not apply:

(a)    in proceedings for an offence against or referred to in the following provisions of the Children and Young Persons (Care and Protection) Act 1998:

(i) section 222 (Endangering children in employment),

(ii)    section 223 (Certain employers of children to be authorised),

(iii)    section 227 (Child and young person abuse),

(iv)    section 228 (Neglect of children and young persons), or

(b)    if the person could be compelled to give evidence in proceedings under section 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986.

Note. This section differs from section 19 of the Commonwealth Act.”

30. If C1 and C2 are held not to be compellable witnesses under s.18, the Crown seeks to rely upon s.65 Evidence Act 1995 to adduce evidence of their videotaped records of interview (Exhibits PTB and PTF).

31. Section 65 is in the following terms:

“65    Exception: criminal proceedings if maker not available

(1)    This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)    The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a)    was made under a duty to make that representation or to make representations of that kind, or

(b)    was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c)    was made in circumstances that make it highly probable that the representation is reliable, or

(d)    was:

(i)    against the interests of the person who made it at the time it was made, and

(ii)    made in circumstances that make it likely that the representation is reliable.

Note. Section 67 imposes notice requirements relating to this subsection.

(3)    The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a)    cross-examined the person who made the representation about it, or

(b)    had a reasonable opportunity to cross-examine the person who made the representation about it.

Note. Section 67 imposes notice requirements relating to this subsection.

(4)    If there is more than one defendant in the criminal proceeding, evidence of a previous representation that:

(a)    is given in an Australian or overseas proceeding, and

(b)    is admitted into evidence in the criminal proceeding because of subsection (3),

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5)    For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but:

(a)    could reasonably have been present at that time, and

(b)    if present could have cross-examined the person.

(6)    Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by:

(a)    the person to whom, or the court or other body to which, the representation was made, or

(b)    if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or

(c)    the person or body responsible for producing the transcript or recording.

(7)    Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends:

(a)    to damage the person’s reputation, or

(b)    to show that the person has committed an offence for which the person has not been convicted, or

(c)    to show that the person is liable in an action for damages.

(8)    The hearsay rule does not apply to:

(a)    evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b)    a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note. Section 67 imposes notice requirements relating to this subsection.

(9)    If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:

(a)    is adduced by another party, and

(b)    is given by a person who saw, heard or otherwise perceived the other representation being made.

Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons.

32. There are a number of terms in the Dictionary to the Evidence Act 1995 which are relevant to the present issues.

33. The terms “child” and “parent” are defined in Part 1 of the Dictionary:

“child means a child of any age and includes the meaning given in clause 10 (1) of Part 2 of this Dictionary.

parent includes the meaning given in clause 10 (2) of Part 2 of this Dictionary.”

34. Clause 10 of Part 2 of the Dictionary relates to the terms “children and parents”:

“10    References to children and parents

(1)    A reference in this Act to a child of a person includes a reference to:

(a)    an adopted child or ex-nuptial child of the person, or

(b)    a child living with the person as if the child were a member of the person’s family.

(2)    A reference in this Act to a parent of a person includes a reference to:

(a)    an adoptive parent of the person, or

(b)    if the person is an ex-nuptial child - the person’s natural father, or

(c)    the person with whom a child is living as if the child were a member of the person’s family.”

35. Clause 4 of Part 2 of the Dictionary concerns “unavailability of persons”:

“4    Unavailability of persons

(1)    For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(a)    the person is dead, or

(b)    the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or

(c)    the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

(d)    it would be unlawful for the person to give the evidence, or

(e)    a provision of this Act prohibits the evidence being given, or

(f)    all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g)    all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)    In all other cases the person is taken to be available to give evidence about the fact.”

Provisions in Criminal Procedure Act 1986

36. The Crown has served notices upon the Accused persons under s.306V Criminal Procedure Act 1986 (Exhibits PT3 and PT4) indicating an intention to adduce evidence of previous representations in the form of the recorded interviews with C1 and C2 on 29 August 2012, together with extracts of certain conversations recorded by listening device in which C1 and C2 are said to be participants. Division 3 of Part 6 of that Act (ss.306R-306Z) provides as follows:

“306R Evidence to which this Division applies

(1)    This Division applies to evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence.

(2)    To the extent that this Division applies to cognitively impaired persons, this Division does not apply to evidence of a previous representation made before the commencement of this Division.

306S Ways in which evidence of vulnerable person may be given

(1)    Subject to this Part, a vulnerable person may give evidence of a previous representation to which this Division applies made by the person in any criminal proceeding wholly or partly:

(a)    in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court, or

(b)    orally in the courtroom, or

(c)    if the evidence is given in any proceeding to which Division 4 applies - in accordance with alternative arrangements made under section 306W.

Note. See section 306ZA.

(2)    Evidence in the form of a recording given by a vulnerable person under subsection (1) (a) is not required to be served on a party to any proceeding (including proceedings in relation to apprehended violence commenced under the Crimes (Domestic and Personal Violence) Act 2007).

(3)    Nothing in this section affects the giving of evidence by means of a written statement for the purposes of Division 3 of Part 2 of Chapter 3.

Note. See also section 306ZN.

306T    Wishes of vulnerable person to be taken into account

(1)    A person must not call a vulnerable person to give evidence of a previous representation to which this Division applies made by the vulnerable person by means other than a recording made by an investigating official of the interview in the course of which the previous representation was made unless the person has taken into account any wishes of the vulnerable person, considered in the light of:

(a)    in the case of a child - the child’s age and understanding, or

(b)    in the case of a cognitively impaired person - the person’s cognitive impairment.

(2)    However, subsection (1) does not permit a person to require a vulnerable person to express the vulnerable person’s wishes in relation to the matter.

306U Vulnerable person entitled to give evidence in chief in form of recording

(1)    A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.

(2)    Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age.

Note. Under section 306Y, a court may order that a vulnerable person not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording.

(3)    If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination:

(a)    orally in the courtroom, or

(b)    if the evidence is given in any proceeding to which Division 4 applies - in accordance with alternative arrangements made under section 306W.

(4)    Subsection (3) does not apply in relation to committal proceedings.

(5)    Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1).

306V Admissibility of recorded evidence

(1)    The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a previous representation to which this Division applies given by a vulnerable person under this Division in the form of a recording made by an investigating official.

(2)    Evidence of a previous representation to which this Division applies of a vulnerable person who is not the accused person in a proceeding that is given by the vulnerable person in the form of a recording made by an investigating official is not to be admitted unless it is proved that the accused person and his or her Australian legal practitioner (if any) were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of a video recording, view the recording.

(3)    However, if the requirements of any regulations made under subsection (2) have not been complied with, the recording may be admitted if the court is satisfied that:

(a)    the parties consent to the recording being admitted, or

(b)    the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with such regulations to listen to or view the recording and it would be in the interests of justice to admit the recording.

(4)    The court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under this Division.

306W Alternative arrangements for giving evidence

The court may order that alternative arrangements be made in accordance with Division 4 for the giving of evidence by the vulnerable person in any proceeding to which that Division applies.

306X Warning to jury

If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

306Y Evidence not to be given in form of recording if contrary to interests of justice

(1)    A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used.

(2)    The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by a recording.

306Z Transcripts of recordings

The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Division applies made by a vulnerable person that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury’s comprehension of the evidence.”

An Extended Account of the Crown Case Against the Accused Persons

37. It is appropriate to set out, in some detail, the case against the Accused persons, drawn principally from the CCS (Exhibit PTA, Tab 1). This will serve to place the accounts of C1 and C2 in context, together with providing an account of other evidence upon which the Crown relies. The place of the accounts of C1 and C2 in the Crown case generally is a topic touched upon in submissions concerning s.18 Evidence Act 1995.

38. The CCS recites the circumstances in which an investigation of the Accused persons commenced in July 2012 and steps taken to progress the investigation, including interviews and the use of surveillance device warrants and telephone interception warrants.

Persons Interviewed and Charged

39. On 9 September 2012, A2 participated in interviews with police and was charged with offences under s.45 Crimes Act 1900.

40. On 9 September 2012, A1, the husband of A2 and father of C1 and C2, participated in interviews with police and was charged with offences under s.45. A1 was discharged at committal proceedings with respect to these charges on 6 February 2014.

41. On 13 September 2012, KM was charged with two counts under s.45 Crimes Act 1900. She exercised her right to silence and did not participate in an interview.

42. On 13 September 2012, Mr Vaziri participated in an interview with police and was charged with two counts of being an accessory after the fact to FGM contrary to ss.45 and 347 Crimes Act 1900.

43. Other persons were interviewed by police and charged with FGM offences. In this category were A3, paternal grandaunt of C1 and C2, A4, the paternal aunt of C1 and C2 and A5, the paternal grandmother of C1 and C2. Each was charged in September 2012 but the charges against each person were later withdrawn by the Crown on 15 September 2013. A6, a person who resides with A3 was charged as well, but that charge was withdrawn by the Crown on 15 September 2013.

44. Hussein Karimjee is a solicitor and a member of the Dawoodi Bohra community. On 31 July 2013, Mr Karimjee was arrested by police. He declined the opportunity to take part in an interview. He was charged with two counts of perverting the course of justice. Mr Karimjee’s matter is listed for trial before the Parramatta District Court in November 2015.

The Alleged FGM Procedures on C1 and C2

45. The CCS (paragraphs 16-31) summarise the Crown allegations with respect to the FGM procedures.

46. On 29 August 2012, C1 (born 19 October 2003) was interviewed at her school by Detective Senior Constable Christine McDonald and a FACS case worker, Alison Wishart. No other person was present during the interview. C1 was eight years old at the time.

47. During her interview (Exhibit PTA, Tab 4), C1 explained her knowledge of the term “Khatna”. She stated that “Khatna” was when “they give you a little cut down there”. She explained that she knew what “Khatna” was “because it’s happened to [her]”, detailing that when she was seven years old, she had her private part cut by an unknown female at her grandmother’s house.

48. C1 recalled being taken into a bedroom and placed on to a bed. She described that, before the procedure took place, she was “nervous” and was told “imagine a place” she liked. C1 chose to picture herself as a “princess in a garden”.

49. C1 told police that “it hurt” when her “private part [was] cut”. The CCS indicates that it is unknown whether C1 was anaesthetised during the procedure, however she recalled opening her eyes stating that “because of imagining the garden I felt a bit funny, and I felt I was on a bed in the garden with them all around but I shook my head a bit”. She also stated that she “felt happy because it was over”.

50. C1 also stated that whilst this procedure occurred, there were a number of women, including her mother, A2, A5 (her paternal grandmother), A3 (her paternal grandaunt) and another unknown female surrounding her to “calm [her] down”. On the Crown case, the unknown female was KM.

51. Following the procedure, C1 recalled being told to drink lots of water and being handed a glass of lemonade before being taken to have a shower. She remembered being “scared” of the shower, as she thought it was going to hurt.

52. During her interview, C1 also provided police with information regarding the procedure being conducted on her younger sister, C2. She stated that the last time she saw the person who performed the procedure on her was “when she had to do that thing to my sister”.

45. When questioned further about C2’s procedure, C1 believed it had occurred “some time this year” (2012). She stated that she had travelled to Auburn with her mother and her sisters where they met the unknown woman who had previously performed the procedure on her. C1 then had to travel with the unknown woman, directing her back to the family home in Baulkham Hills.

46. C1 recalled watching a movie downstairs in her home with C2, and a male child who accompanied the unknown lady (said to be the grandson of KM). Whilst they were watching the movie, A2 called out for C2 to come upstairs. C1 then saw C2 go upstairs, where she believes she was with the unknown female, her mother and A4 (her paternal aunt).

47. C2 (born 26 October 2005) was also interviewed at her school by Detective Senior Constable McDonald and Ms Wishart on 29 August 2012. She was six years old at that time.

48. During her interview (Exhibit PTA, Tab 5), C2 indicated that a procedure was conducted on her, in her parents’ room, in her home in Baulkham Hills. She recalled lying down on a white cushion and stated that she “felt hurting … in [her] bottom”.

49. C2 could not particularise who was in the room at the time the procedure took place. She also could not state who conducted the procedure, only saying that it was “a woman”.

50. After the procedure, C2 recalled speaking to her father, A1, who told her “it’s OK”. C2 also believed she spoke to her sister about the procedure, but she could not recall what was said.

51. It is the Crown case that C2’s FGM procedure took place during the July 2012 winter school holidays. During this time, call charge records show that A2 contacted KM seven times between 26 June and 18 July 2012.

52. On 3 September 2012, C1 and C2 were examined by Dr Susan Marks from the Child Protection Unit at Westmead Children’s Hospital. Dr Marks was unable to confirm or deny whether the girls had been circumcised. She reported that she could not exclude that a WHO classification Type 1 or Type 4 FGM procedure had been conducted, as she could not visualise the head of the clitoris on either child.

53. Dr Marks asserts that if there had been a small cut to the head of the clitoris, it would have been painful at the time, but would have healed in three to five days. Dr Marks also confirmed that any cut or nick to the clitoris would include, at the very minimum, the removal of skin cells.

54. According to the CCS (paragraph 31), a cultural expert and member of the Dawoodi Bohra community stated that “the practice of Khatna [within the Dawoodi Bohra community] is a small cut to the tip of the clitoris and the chances of scarring would be slim”. She asserts that it is only when Dawoodi Bohra women get older that they start to realise the problems “regarding the sensitivity and hypersensitivity” caused by the practice.

Statements Allegedly Made by A2 in Conversations and Police Investigations (CCS, paragraphs 32-48)

63. At 2.18 pm on 29 August 2012, Ms Wishart advised A2 via telephone that C1 and C2 had been interviewed. At that time, Ms Wishart arranged for A1 and A2 to attend the Parramatta Child Abuse Squad at 4.30 pm the same day for a voluntary interview with herself and Detective Senior Constable McDonald.

64. A number of conversations referred to hereafter are said to have been recorded under warrants issued pursuant to the Surveillance Devices Act 2008 or the Telecommunications (Interception and Access) Act 1979 (Cth).

65. When A2 collected C1 and C2 from school on 29 August 2012, she spoke to the children about their interviews. When C1 explained what she told the police, A2 responded "Yes ok. You told them everything. I told you not to say, any one. I told you not to say. Now we are in trouble because of this. I told you this is a big secret. This is what she came to find out. Now we are in trouble because of that. We told you my child this is a big secret, never tell anyone". This conversation was recorded by a surveillance device which had been placed in a vehicle being driven by A2 at that time.

66. Later on in the afternoon, another conversation took place between A1, A2, C1 and C2 whilst the family were travelling in another motor vehicle. During this conversation, A1 tried to convince C1 that she had not been “cut”, to which C1 responded “Yes, once they asked for scissors … I saw scissors … they do something with scissors'? She asked me don't we do with scissors … do not we do with scissors with something?”.

67. After dropping C1 and C2 with a carer, A1 and A2 drove to the Parramatta Child Abuse Squad. Whilst they were still in the vehicle, on their way to the interview A1 told A2, “We can say that, yes we called this lady for check up to make sure that they haven't had anything done. Say this way, that we called to check them if anything is being done, because they go to Africa and is been done there. We go to India and Africa and we always do up there. … When they came for check up, we called all the family members and she knows that lady as she is nurse. She is used to, and we normally the ladies don't check children as it is not our subject the children …”.

68. Once at the Parramatta Child Abuse Squad, A1 and A2 were interviewed separately by Detective Senior Constable McDonald and Ms Wishart. The interviews were not electronically recorded, rather contemporaneous notes were made by Detective Senior Constable McDonald. No one else was present during either interview

69. Whilst A1 was being interviewed, A2 contacted her mother, alerting her of the situation with the police. Whilst talking to her mother, A2 stated, "Our daughters khat … circumcision, we get them circumcised, don't we, about that, for us, you know, it has now become a government matter over her" and “[we] got it performed for our daughters, didn't we, for the seven years old!".

70. When A1’s interview was finished, he returned to the waiting room and had a conversation with A2. During this conversation, A1 again discussed with A2 what she should and should not say to the police, stating, "Do not tell them we got information that [C1] and [C2]’s circumcision have been done here" and, "If they ask you, tell them, you do not know what happened in it". He enquired whether C1’s procedure took place last year, and told A2 to tell police that his mother had told them to have the girls circumcised but they refused. A1 also asked, “In us do they cut the skin … or do they cut the whole clitoris?” To which A2 responded “No … they just do a little bit … just little”.

71. When A2 was interviewed by police, she indicated that she was aware that the practice of FGM was illegal in Australia, and that she was aware that some of her friends and family had had the procedure performed upon them in Africa. She explained the different types of FGM and stated that, in the Dawoodi Bohra community, the practice is only for a “bit of skin [to be] removed”. She stated that she had discussed the practice with her daughters whilst they were holidaying in Africa in 2012, but stated that she did not want her daughters circumcised. When A2 was asked the reason why her daughters would say they have been cut on their private parts, she stated, “I think it’s just the checking that they are getting confused” and that “[we] got them checked at different times by [KM]”.

72. A2 indicated that C1 was examined around the first term school holidays in April 2012, and C2 during the winter school holidays in July 2012. She said that C1 was examined by a female person known as “[KM]” at their family home in Baulkham Hills. She stated that A4 and A5 were also present during the examination. A2 stated that when C2 was examined, the persons present were believed to be A3, A5 and A6. A2 also indicated that during an examination, the underpants are removed and it is “just having a check down there to make sure everything is ok down there”. A2 recalled that KM said "Everything's alright", which made her believe her daughters had not been circumcised.

73. After their interview on 29 August 2012, A2 telephoned KM. KM had been made aware of the police investigation earlier in the day by A1. During the conversation, A2 told KM that C1 explained everything to police - that she had been circumcised and that her procedure had occurred in Australia. She stated that C2 did not know anything about her procedure. A2 also stated that she told police that if the children had been circumcised, the procedure would have occurred in Africa. The two women then discussed how the police found out that C1 and C2 had been circumcised, speculating that someone from within the community must have told them.

74. Following her conversation with KM, A2 called her mother and they discussed what was told to police. A2 stated she told police the procedure could have taken place in Africa, when C1 and C2 were with their grandparents. She also explained that the police went to see C1 and C2, and "[C1] in fact told everything". Upon hearing this, A2’s mother stated, “Did you not teach [C1] not to speak?" and A2 responded "Did teach her, but these people of ours, those people in fact are trained ... to get the information out from everyone”.

75. On 30 August 2012, A2 telephoned A3 and explained the police investigation. During the conversation, A2 stated "We got [C1], [C2] circumcised didn't we … first time happened at yours and the second time was here only. Named mummy, … and all”. She also informed A3 of the story she must tell if questioned by the police explaining, "If any questions arise at all, you are just to say that 'yes, we were there ... it did happen, but just checking occurred'. And I haven't said yours that it happened at your house; I said that you were at our house and happened in this year. This is slightly a little lie”.

76. On the same morning, A2 had another conversation with both C1 and C2 whilst they were together in a motor vehicle. During the conversation, she tried to find out how the police knew what had happened, stating, "We just want to know, that how they came to know about it. We are just checking that you haven't said it by mistake to any friend or teacher”. A1 was not in the vehicle during the discussion.

77. After the conversation referred to in the two preceding paragraphs, A2 telephoned A1. During the conversation, A2 stated C1 told police that, "We performed it in Wollongong” and that she has phoned A3 to inform her of the investigation. She explained that she told A3 that they have to "save Aunty [KM]" and that she is only to tell police "[KM] has just checked everything … if anything would have happened, it has happened in Africa”. The couple also discussed that they did not tell police that anything occurred at A3’s home. They agreed that they would eventually have to tell the police an examination occurred at A3’s home because C1 had already told them that. A2 also stated, "If we all will remain together, those people do not have evidence of any kind to incriminate”.

78. On 4 September 2012, the day after C1 and C2 were examined, A2 received a telephone call from KM. The Crown asserts that it is apparent from the conversation that the women believed that the examination of C1 and C2 by Dr Marks went well (the results of this examination are detailed at [60]-[61] above). KM stated to A2, "Then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]”. A2 explained that the case was not closed and there would be an ongoing investigation by the police and FACS separately, however she believed that without any physical evidence, the police would not be able to take the matter further. At the end of the conversation, KM told A2, "Especially now do explain to [C1] that if they ask anything all … in the school … .just to say as this that, ’I do not have the knowledge, call my mother the matter is finished'”.

79. During the conversation, A2 and KM also speculated about how the police could have found out about the procedures. KM suggested A4 told someone stating, “[A7] tells me 'mummy' ummm [A4] is certainly quite friendly with everything in the mosque ... perhaps ... she could have uttered by mistake because [she] trusts everyone instantly, all her friends ... She is not of a type who would speak... although she was there’”.

80. On 7 September 2012, A2 was arrested and charged with two counts of FGM. At the police station, A2 participated in an ERISP during which she stated that she had a very limited knowledge of FGM, as she had only heard about the topic in newspapers and during conversations with her friends and family who had had the procedure performed on them in Africa. A2 asserted her belief that C1 and C2 had not been circumcised and reiterated that they must have become confused with the examination conducted on them by KM. She detailed that C1’s examination occurred “a couple years back” after a previous trip to Africa in 2008. C1’s examination was said to have occurred at A3’s house and C2’s at her own house. A2 stated that she had had C1 and C2 examined because, at their age, there was a risk of them having been circumcised when they were in Africa. A2 did not adopt what she had previously stated in her interview on 29 August 2012 in respect of the “Khatna” procedure.

Statements Allegedly Made by KM in Conversations (CCA, paragraphs 49-59)

81. At 3.20 pm on 29 August 2012, KM received a telephone call from A1, informing her that C1 and C2 had informed the police about “Khatna”. KM became concerned that her name had been given to police and asked if they could just tell police that she only checked the children and “that was it”, commenting “there is no scar or anything there”. A1 confirmed that they would tell police that C1 and C2 were examined in case they had been circumcised in Africa.

82. At 4.08 pm on the same day, KM contacted a Dawoodi Bohra Sheikh, Elder Jaffar. During this conversation, she stated, “With the permission of the Mullah, I was looking after seven year old girls. Now, this one girl has spoken something to someone in the school; then her mother and father have been called to the police. Then the girl's mother and father will give my name; I don't have the knowledge if the girl has named me ...". She repeated this sentiment again during the conversation when she stated, "I, with the permission of the Mullah, for many year I have been looking after the seven years old girls. You understand what I am saying don't you?". During this conversation, KM also stated that she was too old to go to gaol.

83. At 5.50 pm, KM received a telephone call from A2, informing her how the interview with police went. During the conversation, KM questioned whether C1 told police "that it was done to her”, and A2 responded “yes”. KM informed A2 of the conversation she had with Elder Jaffar, explaining her belief that “this matter is of our community”. She also stated that she is “suddenly worried now" and too old to have to sit in gaol.

84. Between 7.35 pm and 8.28 pm, KM had a number of telephone conversations with her daughter, A7 and her husband, PM. During these conversations, KM explained that the police were investigating the circumcision of C1 and C2. She stated that someone had made a complaint about her, and that the police must have a solid tip or they would not have interviewed the children. KM also explained that this was the first that her husband would have heard of the situation.

85. At 8.48 pm, KM and A7 had another conversation. During this conversation, A7 stated “I think whoever has done a report, it's; I mean, either it's been done against them [the As] or against you. But if it was against you then you've got to ask yourself that ‘wouldn't they have not [done] it some time ago?’ because you know; obviously; it's not; it's not the first time what you have done”.

86. On 30 August 2012, KM was contacted by Mr Vaziri. Mr Vaziri stated that “35,000” had been sanctioned for her, and that she must complete a form to send to London in order to receive a cheque. During this conversation, KM stated that she was really scared, so scared in fact that she rang Elder Jaffar and told him that she did not want to go to gaol.

87. After C1 and C2’s examination on 3 September 2012, KM had a conversation with A7 and PM. During this conversation, the following exchange took place between the two women;

KM stated:   “She said that everything is well, for both of them”. [C1 and C2]

A7 stated: “Yeah, thank goodness ... now mum, don't do this again”.

KM stated: “No, No, I am not going to do anything now”.

A7 stated: “Yeah, now just refuse, if anyone asks. Just say ‘Now my hands are not good, and'”

KM stated: “Yes, I was telling these people also the same thing that ‘I shake a lot; my hands and I won't do it’. But they said ‘no please do it'. Anyway, whatever happened has happened, That's it, I am not going to do it now … now you see, those people will keep a perfectly close on this because they have warned them”.

88. On 4 September 2012, KM telephoned A2. KM stated to A2, “Then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]". At the end of the conversation, KM told A2, “Especially now do explain to [C1] that if they ask anything all … in the school just to say as this that, I do not have the knowledge, call my mother the matter is finished”. KM also speculated that A4 “could have uttered by mistake because [she] trusts everyone instantly all her friends … she is not of a type who would speak … although she was there”.

89. On 10 September 2012, KM was contacted by A1 who informed her that the police were attending the homes of community members, giving them pamphlets and asking them questions about female circumcision. A1 repeated the story that must be told to police stating that everyone has been informed to say “no comment” if they are asked about the day of the procedure, and that KM only came to check C1 and C2. When KM was asked what she will say about using an instrument during the examination, she stated, “I will just say - that there was nothing my hand. Certainly, by no means I would just [do] something [to] all with the hand, hmmm, do that in this way to the lower [part] of someone else's daughter. Indeed, I look hmm, examined to a little extent by opening the cervix just in this way with the forceps”.

90. On 13 September 2012, KM was arrested by police. At the police station, she did not wish to participate in an interview.

91. At 2.53 pm on 13 September 2012, KM telephoned A1 and informed him of her arrest. KM told A1 that she did not tell police anything and wanted to confirm everyone “maintained one story only …that you invited me merely to examine”.

Statements Allegedly Made by Mr Vaziri in Conversations and Police Interview (CCS, paragraphs 6-71)

92. At 3.04 pm on 29 August 2012, A1 telephoned Mr Vaziri, informing him that C1 and C2 had told the police about “Khatna”. A1 told Mr Vaziri, “Now it seem [C1] has already told them everything khatna-kharanat has happened”. He also stated that the police had requested an interview with both himself and A2. When asked by A1, Mr Vaziri agreed that the practice of Khatna was illegal in Australia. A1 asked Mr Vaziri what to tell the police, Mr Vaziri stated, "This is my thought. Tell that we had gone in Milad and we had placed them at our neighbours … and then don't know what has happened”.

93. At 6.18 pm on the same day, A1 telephoned Mr Vaziri again, informing him that the police had been told that any circumcision on C1 and C2 must have taken place in Africa and that a lady was only called to examine the children, to verify that they had not been circumcised. A1 also told Mr Vaziri that female circumcision is illegal in Australia and the police want to have C1 and C2 examined. Upon hearing this, Mr Vaziri advised A1 to seek legal advice. He also stated, "Brother only one thing. Always keep providing the same oral testimony that you have said. Then; change in it; don't change it … Don't introduce any change in that nothing at all, not even a little". During this conversation, A1 also advised that C1's circumcision was performed at A3’s house and C2's circumcision was performed at his own house. A1 also speculated that KM would be very anxious because she was the person who conducted the circumcisions.

92. On 30 August 2012, Mr Vaziri telephoned KM. During this call, he informed KM that “35,000” had been sanctioned for her, and that in order to receive a cheque she had to complete a form that would be sent to London. During the conversation, KM informed Mr Vaziri that she was very scared about the police investigation and had telephoned another Elder, telling him that she did not want to go to gaol.

93. On 3 September 2012, Mr Vaziri received a telephone call from Hussein Karimjee. Mr Karimjee informed Mr Vaziri that he had spoken to an Elder in London and that a document was being created to outline the community's attitude to FGM. Mr Karimjee instructed Mr Vaziri to tell police that the community does not agree with or encourage anyone to conduct FGM in Australia or any other country. Additionally, he recommended that KM no longer perform procedures within the community as she was more than likely being watched by police. Mr Karimjee also warned that no one from the community should go overseas for the purpose of having their daughters circumcised.

94. During his conversation with Mr Karimjee, Mr Vaziri questioned what he should say “according to Sharia”. Mr Karimjee stated that mutilation and circumcision are not written anywhere and it is not encouraged within the community. He reasoned that the procedure performed within the community is so minimal that it cannot be seen as mutilation. Mr Karimjee stated that without further evidence, no one would believe the words of an eight-year old, however he also warned that the investigation is continuing and the people within the community needed to be cautious and alert as to what they should and should not tell police.

95. On 6 September 2012, Mr Karimjee again telephoned Mr Vaziri and the two discussed Mr Vaziri's upcoming interview with police. Mr Vaziri stated he had been advised by another Elder to be confident in the interview. Mr Karimjee told Mr Vaziri that he should say, as far as he was aware, C1 and C2 were very quiet after they returned from Africa, so KM was engaged to verify that they had not been circumcised. Mr Karimjee informed Mr Vaziri that C1 had already advised police that many people came to Wollongong when her procedure took place, that scissors were used and that she was in pain for two-to-three days after the procedure. Additionally, Mr Karimjee stated that the medical examination “did not show anything” and therefore police had no evidence of a procedure taking place. At the end of the conversation, Mr Vaziri asked Mr Karimjee if there were any difficulties in him representing everyone involved, to which Mr Karimjee responded there would be no problem so long as everyone told the same story.

96. At 6.09 pm on 10 September 2012, Mr Vaziri telephoned an unknown female member of the Dawoodi Bohra community. During this phone call, Mr Vaziri advised the unknown female that the police are going to the houses of community members and asking them questions about female circumcision. The unknown female stated that police had already been to her house, but she told police that she did not know the meaning of the work "khatna" and had no idea whether young girls were being circumcised. Mr Vaziri told the unknown female that, if the police return and ask any further questions, she is to say "I am not saying … mean we do not do it”.

97. At 6.42 pm, Mr Vaziri telephoned a male Dawoodi Bohra community member known as A8. Similarly to the previous call, Mr Vaziri warned A8 that police are going to the homes of community members and asking them questions about female circumcision. During the conversation, Mr Vaziri told A8, "If someone asking you or your wife this should your answer. 'We do not believe in it’”. Mr Vaziri told A8 to relay the message to his wife whilst he was still on the phone stating the police "are leaving soon for information". Mr Vaziri also stated, "Which ever country you live, loyal to that country. That what should do”.

98. At 8.57 pm, Mr Vaziri telephoned Mr Karimjee. During this conversation, the two again discussed what Mr Vaziri would tell police in his interview. Mr Karimjee reiterated that Mr Vaziri was to say he does not teach or believe in female circumcision, warning that Mr Vaziri must repeat the phrase exactly to police. Mr Vaziri informed Mr Karimjee that the police had gone to the houses of the community members and handed out pamphlets. He also raised concerns that the police had found the community website.

99. At 9.50 pm, Mr Vaziri telephoned Mr Karimjee again. During this conversation, Mr Vaziri raised concerns that there was no control over the situation. Mr Karimjee told Mr Vaziri there is no reason to worry, stating, "What knowledge do those people have as to Your Honour's plan ... they do not have information as to what Your Honour's plan was". Mr Karimjee repeated his warning that the community will have to take care now, to which Mr Vaziri responded, "Yes exactly, in fact these people also have the information".

100. At 5.20 am on 13 September 2012, police officers attached to the investigation attended the Auburn Mosque and arrested Mr Vaziri. Mr Vaziri was conveyed to Auburn Police Station where he participated in a recorded interview. During the interview, Mr Vaziri stated that he had never heard of FGM, female circumcision or “Khatna” being performed on females. When Mr Vaziri was advised that the [As] had been charged the week prior with committing FGM on their children, he stated they had approached him after being arrested in order to obtain a “blessing” from the 52nd Dai Mutlaq (the highest living Dawoodi Bohra authority, who is based in India). Mr Vaziri then conceded this meant he had heard of FGM prior to walking into the interview room, but this conversation with the [As] was, in fact, the first time he had heard of it.

101. Later in his police interview, Mr Vaziri stated that the first time he had heard of FGM was 4 days prior, when he was handed a pamphlet about it at the mosque. He stated he was completely against FGM and that if he ever found out about it happening in his community, he would report it to police. Mr Vaziri further stated that he never provided advice to the [As], he simply conveyed their request for a blessing to the 52nd Dai Mutlaq. He also stated that he is the highest Dawoodi Bohra authority in Sydney, but is not in a position to authorise any ritual involving FGM. He explained that the Quran dictates that Muslims must abide by the laws of the land they are living in. When asked if he was aware FGM is illegal in New South Wales, he stated that he did not need to know because it had never been an issue for him. He also stated that he did not know if the practice was illegal in India and he had never needed to know because he had never even come across it.

Other Witnesses Interviewed

104. During the course of the investigation, police interviewed other persons, including A1, A3, A4, A5, A6, A7, PM and A9, the interpreter present during the interview of Mr Vaziri. Each has refused to give a statement, but has been subpoenaed by the Crown to give evidence.

Some Issues in the Trial

105. It is helpful to keep in mind the issues as to which C1 and C2 would be called upon to give evidence, and the extent to which there is controversy with respect to these matters.

106. The issues in dispute at the trial were the subject of discussion during the pretrial hearing. On 18 June 2015, I enquired of Mr Sutherland SC (PT49-51) (emphasis added):

“HIS HONOUR: The next thing I wanted to raise was an issue arising from the submissions. In the Crown written submissions at para 15 the Crown foreshadowed what the defence case with respect to A2 and KM may be, concerning [C2]. The defence written submissions at paras 6 and 7 - 6 in particular - indicated what the issues at trial will include. Is there an issue in the trial and this is directed to Mr Sutherland and Mr Bouveng what is in issue at trial with respect to the Crown allegation with respect to [C2]? I'm looking at paras 6 and 7 to assist me to understand that.

SUTHERLAND: Your Honour, the Crown submission flows from a discussion in one of the intercepted calls. The fundamental issue at trial will be the proposition that whatever took place involved no damage, injury or other physical intervention falling within the relevant statutory definition.

HIS HONOUR: But is there an issue that something took place?

SUTHERLAND: No.

HIS HONOUR: I'm conscious that the cascading issues which I'm looking at here and will occupy some time relate to the accounts of [C2] and [C1], and the Crown seek to adduce evidence in one way or another of what each of the children said happened at a particular time in a room.

SUTHERLAND: Indeed, yes.

HIS HONOUR: Is there going to be any dispute that each child on separate occasions was in the room with certain people?

SUTHERLAND: No.

HIS HONOUR: And that some contact was made with their body?

SUTHERLAND: No, there will not be a dispute about that, your Honour.

HIS HONOUR: What is the dispute then with respect to [C2], firstly?

SUTHERLAND: What it was that was done.

HIS HONOUR: And with [C1]?

SUTHERLAND: The same.

HIS HONOUR: Is there any issue that A2 was present at the time on each occasion?

SUTHERLAND: I don't believe so, your Honour. The short answer is no.

HIS HONOUR: I don't think it's the Crown case that Mr Vaziri was said to have been present. Is that so?

SUTHERLAND: Correct, your Honour. He's charged as an accessory after the fact.

HIS HONOUR: As an accessory, yes.

SUTHERLAND: I think it can fairly be said not that we want to run off on this tangent at the moment but I think it can fairly be said that the substance of the allegation against him relates to conversations between him and a now Crown witness, an uncharged person, charged previously but discharged at committal, namely, [A1] himself.

HIS HONOUR: That's the father?

SUTHERLAND: Father.

HIS HONOUR: of [C2] and [C1].

SUTHERLAND: And [C1], yes, your Honour.

HIS HONOUR: All right.

SUTHERLAND: Mr Bouveng can speak for himself, but in relation to his client, the issues, I expect, are what is it that happened.

HIS HONOUR: Yes. Well, I might just ask Mr Bouveng. Your client is alleged by the Crown to have been present and to have been the person who undertook the acts in question, I think. That's the Crown case, isn't it, against your client?

BOUVENG: It is.

HIS HONOUR: Is there any issue that your client was present on these occasions?

BOUVENG: There isn't.

HIS HONOUR: What is in issue then with respect to your client and the allegation of [C2]?

BOUVENG: Precisely what Mr Sutherland just indicated on behalf of A2, that is, what is it that was done on those two occasions with [C2] and [C1], and whether or not what was done amounts to the act as raised under s 45 and s 59.

HIS HONOUR: Yes, all right. That assists me just to have an understanding. I know that we're at an early stage but it will assist me to have that understanding.”

107. The Notice of Defence Response under s.143 Criminal Procedure Act 1986, served on behalf of A2 and dated 29 June 2015, stated the nature of her defence in the following way:

“The nature of the accused person’s A2s defence is that she did not commit any of the offences. Specifically, A2 did not act in a criminal enterprise with KM who did not excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of the complainants, nor did KM assault either of the complainants occasioning actual bodily harm.”

108. The Notice stated that A2 proposes to give consent under s.184 Evidence Act 1995 admitting the following matters of fact:

“*   That she was present when KM undertook an examination and symbolic ceremony on [C1] at her request; and

*   That she was present when KM undertook an examination and symbolic ceremony on [C2] at her request.”

109. The Notice of Defence Response dated 29 June 2015 on behalf of KM is to a similar effect.

110. The Notice of Defence Response dated 29 June 2015 for Mr Vaziri includes a denial that he committed the offences, and an indication that he does not propose to give any notice of consent under s.184 Evidence Act 1995.

111. Accordingly, the issues presently under consideration should be approached upon the basis that there will be no dispute that C1 and C2 were examined by KM in the presence of A2, but there will be a denial that any form of procedure was undertaken on either of them which could fall within the terms of the FGM offence under s.45 Crimes Act 1900.

Competence of C2

112. No submission was made that C1 was not competent to give evidence. The psychological reports concerning C1 raised no question as to her competency to give evidence.

113. However, a question has arisen concerning the competence of C2. It is appropriate to refer to submissions concerning this topic before moving to resolve it.

Overview of Submissions

114. Mr Gow submitted, on behalf of C2, that she is not competent to give evidence but, if the Court finds she is competent, the Court should conclude that she is not competent to give sworn evidence pursuant to s.13(3) based upon her age and the mild intellectual incapacity with which she suffers.

115. Mr Gow submitted, correctly, that there is little, if any, disagreement in the opinions expressed by Dr Banks and Dr Pulman with respect to C2. He submitted that the only limited point of difference between the opinions of these experts appears to lie in the area of C2’s actual ability to give evidence.

116. It was not submitted by Mr Gow that C2 did not have the capacity to give an answer that can be understood to a question about the fact, for the purpose of s.13(1)(b). Rather, he submitted that the issue here surrounded s.13(1)(a), as to whether C2 has the capacity to “understand a question about the fact”. Whilst acknowledging that the test in s.13(1) sets the bar fairly low, Mr Gow pointed to evidence of C2’s intellectual disability and mental age of six. He submitted that C2 may fail, or be unable, to engage in the process of responding to questions about the fact.

117. Mr Gow (and other counsel) referred to MK v R [2014] NSWCCA 274 at [70], where it was emphasised that a court considering competence under s.13 should follow a sequential mode of reasoning.

118. After the examination of C2 by the Court on 18 June 2015, Mr Gow pointed to some features of her responses, but made limited submissions on the issues, noting that it was a matter for the Court to determine.

119. The Crown submitted that, having seen and heard C2 being examined, and after application of the relevant principles, the Court would be satisfied that she is competent to give sworn evidence.

120. Apart from noting the psychological reports concerning C2 and referring to the relevant legal principles, Mr Sutherland SC and Mr Bouveng left it to the Court to form a view concerning the competence of C1.

Decision

121. I have had regard to the provisions of s.13, the reports of Dr Banks and Ms Pulman (for the purpose of s.13(8)) and the observations I made of C2, together with her answers to my questions during the examination on 18 June 2015. I have considered the submissions of counsel on this topic.

122. The logical starting point of s.13 is the presumption of competency established by ss.12 and 13(6): RJ v R [2010] NSWCCA 263; 208 A Crim R 174 at 179-180 [16]. From there, I have sought to apply the obligatory terms of s.13, using a sequential mode of reasoning, in accordance with RJ v R at 179-180 [14]-[23] and MK v R at [70].

123. In accordance with MK v R at [70], strict compliance with s.13 is required. The Court must make a specific finding as to whether C2 is competent to give evidence under s.13(1). If C2 is found to be competent, the court must consider whether she may not be competent to give sworn evidence: s.13(3).

124. In determining the competency of C2 by reference to s.13(1), I have had regard to the psychological evidence concerning her and her mental age. I accept that she suffers from a mild intellectual disability and that, as at the time of the assessment by Dr Banks in November 2014, C2 was operating at a cognitive and emotional level of a six-year old child. At the same time, I note that C2 is in her age appropriate year at school and is functioning in the normal school environment with additional learning assistance.

125. I have had regard, as well, to what appears to be the confined topic in relation to which C2 would be called upon to give evidence, and the real issues in dispute with respect to that topic. Any likely questioning of C2 at trial ought not be complex or protracted.

126. I am satisfied that C2 has the capacity to understand a question about facts pertinent to the relatively narrow issues in the trial, so as to satisfy the undemanding test posed by s.13(1)(a) of the Act.

127. For the purposes of s.13(1), I am satisfied that C2 is competent to give evidence. She is now nine years of age. She was able to engage with me and answer questions on a range of topics.

128. I have regard to the examination of C2 which I undertook on 18 June 2015. I sought to utilise questions framed in a way that a nine-year old child (with the intellectual disability and chronological age of C2), and with the limited language skills of a child can understand: R v RAG [2006] NSWCCA 343; MK v R at [69].

129. Having found C2 to be competent to give evidence for the purpose of s.13(1) of the Act, I move to s.13(3) to consider the question whether C2 is competent to give sworn evidence. I sought to direct some questions to C2 to assist a judgment as to whether she had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence (PT62-63, 66). I am satisfied from the examination of C2, and the other evidence before the Court, that she has the capacity to understand that, in giving evidence, she is under an obligation to give truthful evidence.

130. Having reached this conclusion, I express my satisfaction that C2 is competent to give sworn evidence at the trial of the Accused persons. In these circumstances, it is, of course, not necessary to move to consideration of competence to give unsworn evidence for the purpose of s.13(5) of the Act.

Compellability of C1 and C2

131. Detailed submissions were made on the question whether C1 and C2 should be compelled to give evidence at the trial.

132. At the outset, it should be noted that it is only because A2 is on trial that s.18 is engaged at all. If there was a separate trial of KM and Mr Vaziri, there could be no question of C1 and C2 being compellable witnesses against them. However, the Crown has presented a joint indictment against all three so that, for practical purposes, the compellability issue is to be considered in the context of a proposed single joint trial.

Overview of Submissions

133. Mr Gow submitted that the Court should conclude that there is the likelihood that harm would or might be caused to C1 and C2, or to the relationship between C1 and C2 (on the one hand) and A2, if the children were required to give evidence against A2. Reference was made to aspects of the psychological evidence of Dr Banks, Dr Pulman and Ms O’Neill.

134. He submitted further that the nature and extent of that harm outweighed the desirability of having the evidence given. He submitted that s.18(6)(a) involved a relatively low threshold, and that the Court should conclude that the risk of harm to the relationship between mother and daughters existed in this case.

135. By reference to the factors contained in s.18(7), Mr Gow made the following submissions:

1. section 18(7)(a) - although the nature and the gravity of the allegations are serious, the maximum penalty at the relevant time under s.45(1) Crimes Act 1900 was imprisonment for seven years;

2. section 18(7)(b) - it was accepted that the evidence available from C1 and C2 was important to the Crown case, but counsel submitted that, in light of other evidence available to the Crown, the children’s evidence was of less importance so that it was not vital to the prosecution case;

1. section 18(7)(c) - there was other evidence concerning the matters to which the evidence of C1 and C2 relate, which was reasonably available to the prosecutor - he referred to a series of recorded conversations between different persons which was particularised in Exhibit PTE;

2. section 18(7)(d) - the mother/daughter relationship was a special one which, according to Dr Banks, is perceived to have “a special, sacred bond” - it was submitted that the relationship is even more important because C1 and C2 are not adult daughters of A2, but are vulnerable children of tender years, and still at an age where their mother plays a central role in their upbringing and development.

136. No submission was advanced by Mr Gow by reference to s.18(7)(e) of the Act.

137. Mr Gow submitted that, in undertaking the balancing exercise under s.18, the Court should conclude that neither C1 nor C2 ought be compelled to give evidence in the trial of their mother and others.

138. The Crown submitted, with respect to s.18(6)(a), that some harm to C1 and C2 and their relationship with their mother, may have already occurred because the girls had committed themselves in August 2012 to a version of what happened when each of them was interviewed by police. It was submitted that giving evidence, in accordance with those accounts, will not necessarily exacerbate any harm.

139. With respect to the factors in s.18(7), the Crown made the following submissions:

1. s.18(7)(a) - the nature and gravity of the allegations are serious, with the maximum penalty for FGM under s.45(1) Crimes Act 1900 (at the relevant time) being imprisonment for seven years - the Crown made other submissions in the context of s.18(7)(d) (see [139](d) below) which overlap, as well, with s.18(7)(a) - it was submitted that C1 and C2 are not just witnesses, but the alleged victims named in the charges brought against their mother and others;

2. s.18(7)(b) - C1 and C2 are both complainants who have participated in records of interview with police on 29 August 2012 - one of the central issues in the trial will be whether the Crown can rebut the suggestion that what occurred to both girls was merely an examination, and not any form of FGM - in C1’s interview, she confirmed that she was able to give direct evidence that some form of FGM occurred upon her, with her stating that she was hurt in her private parts when it happened and that it happened to her because it was part of her culture, and with her stating that her mother had told her what would happen before it happened, so she was not scared - she gave details that it included a cut to the private part (Exhibit PTA, Tab 4; Q/A390-445-448, 482-484, 596-600, 604) - in C2’s interview, she confirmed that she can give direct evidence that she had a cut on her private part, that it happened in her mother’s room when lying on a cushion and that it hurt her bottom when it happened (Exhibit PTA, Tab 5; Q/A194, 203-223, 232-233) - accordingly, the Crown submitted that the evidence of C1 and C2 was significant and important, noting that the medical evidence of Dr Marks was limited in that she did not state that FGM had definitively occurred, with the highest she could state being that she was not able to visualise the head of the clitoris on either girl, and therefore she was unable to exclude that her observation could simply be just a variation of the normal appearance of that part of the anatomy of the girls - nor did the electronically recorded material cover the areas which the accounts of C1 and C2 did;

3. s.18(7)(c) - whilst noting that there is other evidence to be led in the trial (including the electronically recorded material), the Crown submitted that there was no direct evidence of the procedures occurring if C1 and C2 did not give evidence;

4. s.18(7)(d) - the Crown acknowledged that C1 and C2 have a strong relationship with their mother and are dependent upon her given their age - however, the Crown submitted that the reality of most prosecutions involving FGM is that they will almost always involve child complainants being required to give evidence against family members, including one or both parents, given the context in which such conduct is likely to occur - the Crown submitted that this type of prosecution is analogous to domestic and child assault prosecutions, where the law is strong on the compellability of witnesses to give evidence - the Crown submitted that there is a particularly strong public interest to prosecute FGM matters to act as a deterrent to other persons who may be inclined to engage in such practices, and that it was important to send a clear message to the general public about condoning this type of behaviour.

140. The Crown submitted that, when considering the balancing exercise in s.18, whilst harm might or could occur to persons or relationships, such harm did not outweigh the desirability of C1 and C2 being compelled to give evidence. It was submitted that their evidence was crucial and that there is a strong public interest to prosecute this type of matter. It was submitted that the balancing exercise under s.18(6) should lead to the conclusion that C1 and C2 should be required to give evidence at the trial.

141. Counsel for the Accused persons submitted that there was other evidence available to the prosecution apart from that of C1 and C2, and that this was relevant to the balancing exercise to be undertaken under s.18(6) and (7). Reference was made to the electronically recorded material in this regard. With respect to s.18(7)(a), it was said that there was no allegation of the use of physical force. It was submitted that the Court should find that C1 and C2 were not compellable witnesses for the purpose of this trial.

Decision

142. Section 18 Evidence Act 1995 extends (relevantly) to a child the right to object to being required to give evidence as a witness for the prosecution in a criminal proceeding brought against the child’s parent. Where objection is taken, the Court is required to rule on it, applying the balancing test contained in s.18(6) and s.18(7) of the Act: LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016; 81 NSWLR 551 at 559 [35].

143. Section 18(6)(a) sets a relatively low threshold. The issue is whether the Court finds that there is a likelihood that harm would or might be caused (whether directly or indirectly) to the proposed witness, or to the relationship between the proposed witness and the (related) defendant if the witness gives evidence. It is not necessary that the Court find that harm would probably or necessarily be caused. Rather, it is sufficient that there is a likelihood that harm might be caused.

144. The statute does not define the word “harm” for the purpose of s.18(6). It appears, from the context in which the word is used, that it extends to harm to a relevant relationship, including psychological harm.

145. If s.18(6)(a) is satisfied, the Court must consider whether the nature and extent of that harm outweighs the desirability of having the evidence given. In this regard, the Court must have regard to the non-exhaustive list of mandatory considerations set out in s.18(7) of the Act.

146. Before referring to the psychological evidence, it is important to note that the psychologists were not informed of the particular allegations or charges in this case. This does not operate to devalue the opinions of the psychologists as to the prospect of harm. Rather, it emphasises that this issue will be evaluated by the Court upon the basis that the Court, and not the psychologists, is aware of the precise allegations. This aspect is important to a number of factors to be considered under s.18(7) of the Act.

147. With respect to s.18(6)(a) concerning C1 and C2, there is a body of psychological evidence which indicates the prospect of harm occurring to each child if she is required to give evidence against her mother.

148. Concerning C1, Dr Pulman stated that there was a likelihood that harm may be caused to her, and to her family relationships, if she was required to give evidence against her mother. Should she be compelled to give evidence, C1 may suffer psychological harm, including loss of self-esteem, anxiety and ongoing mental health concerns which could impact on her schooling, academic achievements, peer social relationships and capacity to form attachments throughout her life. With respect to potential harm to C1’s relationship with her mother, Dr Pulman spoke of the possibility that C1 may attribute blame and responsibility to herself (Exhibit PTD).

149. Ms O’Neill expressed the opinion that C1’s psychological wellbeing, and her relationship with her mother, may be harmed by her giving evidence (Exhibit PT2).

150. With respect to C2, Dr Pulman expressed similar opinions (to those about C1) concerning the likelihood of harm, if C2 was called upon to give evidence against her mother (Exhibit PTC).

151. Dr Banks expressed the view that C2 would be likely to suffer harm if she was called to give evidence against her mother. Dr Banks emphasised the central role played by the mother in determining C2’s emotional, psychological, health, nutritional and educational needs and the role of a parent with respect to a child’s mental health, psycho-social adjustment and behaviour (Exhibit PT1).

152. I am satisfied, on the evidence, that there is a likelihood that psychological harm might be caused to each of C1 and C2, and to the relationship between each of those girls and their mother, if each of C1 and C2 was called to give evidence. Accordingly, I am satisfied that the requirements of s.18(6)(a) are made out.

153. It is necessary for the Court to consider next the nature and extent of that harm and whether it outweighs the desirability of having evidence given by C1 and C2: s.18(6)(b). This involves a consideration, in turn, of the non-exhaustive list of mandatory factors under s.18(7) of the Act.

154. With respect to s.18(7)(a), I accept that the charges against A2 are serious in nature. The law characterises FGM offences as being serious. It may be said that offences under s.45 Crimes Act 1900 are likely to be committed by persons related to, or associated with, the young girls in question, and with the knowledge of a parent or parents. This is an important factor to bear in mind in the balancing exercise.

155. It is notable that s.19 Evidence Act 1995 operates to exclude certain charges from the ambit of s.18 and the capacity of a person to seek to be excused from compellability under that provision. The rationale and operation of s.19 were considered in LS v Director of Public Prosecutions (NSW).

156. It was not submitted here that charges under ss.45 or 59(2) Crimes Act 1900 are caught by s.19, so as to preclude the operation of s.18. However, the rationale for s.19 may be of indirect assistance to the present application.

157. The context in which the present charges arise is an allegation that FGM was carried out on each of C1 and C2 at the request of and in the presence of the mother, A2. There is a public interest in charges of this type being tried by reference to the adducing of all available evidence, including evidence of the alleged child victims.

158. It will be evident that there is some additional tension in consideration of a s.18 application in a case such as this. There is evidence that harm is likely to be done to the children if they are required to give evidence against their mother. However, central to the Crown case against A2 and the other Accused persons is that each of C1 and C2 was subjected to an illegal procedure carried out upon the person of the child in breach of that child’s rights.

159. The psychological evidence concerning the prospect of harm to the children is, in reality, unsurprising. As I have noted, the psychological opinion is not expressed with complete knowledge of the allegations brought here against the Accused persons. It may be accepted readily that harm might be caused to the children, and their relationship with their mother, if they are required to give evidence.

160. However, the observation made in the preceding paragraph must be qualified by the fact that the evidence of C1 and C2 in this case will largely be given by the playing of the recorded interview undertaken with each child in August 2012. I bear in mind, as well, the relatively narrow issues in dispute in the trial. This does not appear to be a trial where a challenge will be made to the evidence of C1 and C2 on a credibility basis. Any questioning of C1 and C2 will be both limited and short.

161. With respect to s.18(7)(b), I am satisfied that the substance and importance of the evidence of C1 and C2 is considerable. Although the Crown has available to it other evidence, including telephone interception and surveillance device evidence, that evidence is indirect in nature. Indeed, parts of the intercepted conversations require knowledge of what C1 and C2 said in interviews with police to permit a clear understanding of what is being said. The interviews of C1 and C2 provide direct accounts of what each girl said happened on the occasion in question. The recorded interviews of C1 and C2 were made in 2012, much closer to the events in question.

162. The medical evidence available to the Crown is limited. In reality, the Crown case is based upon a combination of evidence, including the accounts of C1 and C2, the medical evidence and the electronically intercepted evidence. To remove the evidence of C1 and C2 from this equation would involve a very significant reduction of the Crown case against the Accused persons.

163. With respect to the weight that may be attached to the evidence of C1 and C2, it is sufficient to note that the recorded interviews of each girl suggest the emergence of accounts from each of them which is likely to carry weight in the eyes of a jury.

164. With respect to s.18(7)(c), I have mentioned already the other evidence available to the Crown. The other evidence does not, on its face, cover the areas of the accounts of C1 and C2.

165. With respect to s.18(7)(d), it is important to keep in mind as well that C1 and C2 continue to live with their mother, father and family. This is not a situation where the girls are now separated from their mother. There is an ongoing relationship between mother and daughters which must be taken into account under s.18. This is not a case where there has been a breakdown in the relationship between the children and the mother as a result of these allegations.

166. I have regard to the existence of the parent/child relationship at present. I accept that some harm is likely to be done to that relationship if the children are called to give evidence. That said, in the circumstances of this trial, I anticipate that the evidence of C1 and C2 will involve largely the playing of interviews already made. Each of the children has already taken that step in the investigation of the mother and the other Accused persons. There is no evidence that harm has resulted as a consequence of the children taking that step in the investigatory phase. Any further questioning of C1 and C2 is likely to be very confined in its nature.

167. I do not consider that there is any factor under s.18(7)(e) which may give rise to disclosure of matters received by the children in confidence from their mother.

168. I return to the question posed by s.18(6) of the Act. Having found there is a likelihood of harm for the purpose of s.18(6)(a), it is necessary to consider whether the Court finds that the nature and extent of that harm outweighs the desirability of having the evidence given. This ultimate question takes into account the mandatory factors identified in s.18(7) of the Act together with any other relevant factors.

169. Section 18(6)(b) itself speaks of the “desirability of having the evidence given”. In a criminal trial, there is a public interest in the Crown having available to it to be called, all evidence touching upon the question of the guilt of persons accused of serious offences. Of course, where a witness falls within s.18(2), this consideration may give way in the exercise of the statutory decision making required under s.18(6).

170. The balancing exercise to be undertaken in this particular case involves, in broad terms, the following competing considerations:

1. the importance of the accounts of C1 and C2 to the Crown case on charges where their own right to personal and physical integrity is said to have been compromised by alleged criminal acts undertaken by their mother and others;

2. the likelihood of harm being done to them and their relationship with their mother if they are called as witnesses, although with those adverse consequences being substantially limited by the manner and form of the giving of evidence by C1 and C2, and the content of their evidence given the limited issues in dispute in the trial.

171. Having undertaken the balancing exercise required by s.18(6) of the Act, I do not find that the nature and extent of the harm to be done to C1 and C2 outweighs the desirability of C1 and C2 giving evidence, so that such evidence is available to the jury at the trial of the Accused persons.

172. I decline the application by C1 and C2 under s.18 Evidence Act 1995. Each of C1 and C2 remains a compellable witness in the forthcoming trial.

173. As would already be clear, the ruling which I have made operates upon the basis that each of C1 and C2 is a “vulnerable person” for the purpose of s.306U Criminal Procedure Act 1986, so that the interview conducted with each child may be utilised as part of the evidence of each girl at the trial pursuant to s.306V of that Act.

Crown Application Under s.65 Evidence Act 1995

174. Having determined, for the purpose of s.18 Evidence Act 1995, that each of C1 and C2 should remain a compellable witness at the trial, it is not strictly necessary to consider the Crown’s alternative application based upon s.65 of that Act. However, given that the matter was fully argued, I will express my conclusion in this respect relatively briefly.

175. I am satisfied that, if the Court held that C1 and C2 were not compellable for the purpose of s.18, each of them would be “unavailable” to give evidence for the purpose of s.65. I am satisfied that they would fall within Clause 4(1)(g) within Part 2 of the Dictionary to the Act.

176. The Crown has sought to require both C1 and C2 to give evidence. The Crown has resisted the compellability argument under s.18. If C1 and C2 were held not to be compellable, for the purpose of s.18, it may be concluded readily that the Crown had taken all reasonable steps to compel the person to give evidence, but without success.

177. I do not accept the contrary submission that, as a matter of construction, the presence of cl.4(1)(b) in the definition means that witnesses held not to be compellable under s.18 are not capable of being “unavailable” for the purpose of the provision.

178. In concluding that C1 and C2 were relevantly unavailable for the purpose of s.65, I would follow the reasoning of Beach J in Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397; 204 A Crim R 306 at 311-312 [18]-[21]. Beach J ruled that a successful objection under s.18 Evidence Act 2008 (Vic) rendered a person unavailable for the purpose of s.65 of the Victorian Act. In reaching this conclusion, his Honour applied the decision of Hamilton J in Mindshare Communications Limited v Orleans Investments Pty Limited [2007] NSWSC 976 at [14]-[18]. Riley CJ reached a similar conclusion in Sanderson v Rabuntja [2014] NTSC 13 at [25]-[27]. With respect, I agree with the reasoning of Hamilton J, Beach J and Riley CJ on this issue.

179. The approach adopted by Beach J in Director of Public Prosecutions (Vic) v Nicholls was applied by the Victorian Court of Appeal in Fletcher v R [2015] VSCA 146. In that case, Dixon AJA (Weinberg JA agreeing) applied this reasoning so that a successful objector under s.18 of the Victorian Act was held to be unavailable for the purpose of s.65 of that Act (see [53]ff).

174. Before me, some reliance was placed by Mr Gow and counsel for the Accused persons upon the decision in R v BO (No. 2) [2012] NSWDC 195; 15 DCLR (NSW) 317.

175. In Fletcher v R, the Victorian Court of Appeal accepted that a statement taken by an investigator, before charges were laid, from a person who has successfully made a claim to be excused under s.18 could be relied upon by the Crown under s.65 of the Act. In this respect, the Court distinguished the decision in R v BO (No. 2). Dixon AJA said at [58]:

“I agree with the Crown’s submission that the form of the evidence considered in BO may explain the result in that decision, particularly the video recorded evidence given by the elder boy at an earlier trial. But here the statement was a written statement taken by an investigator before charges were laid. The process of making a statement during an investigation cannot be conflated with the process of giving evidence at a trial. The rules in respect of competence and compellability of witnesses to give evidence at a trial do not govern criminal investigation processes. Absent special arrangements, evidence that is ‘given’ is received by the court by being seen and heard from the witness box. That evidence does not exist until it is given. A document, such as a statement, may be tendered as an exhibit. An exhibit is also evidence in a trial, but while tender is a process of adducing evidence in a criminal proceeding, the process of creating the document tendered - in this case making a statement - is not. Making a statement to police is neither a process of ‘giving’ evidence, nor a process in a criminal proceeding as that term is defined by the Act.”

182. I do not accept the submission of Mr Gow, adopted by counsel for the Accused persons, that a distinction can be made between a written statement of a witness and a recorded interview of a witness in this respect. The recorded interview is obtained during the investigatory stage. It will become evidence if admitted at the trial.

183. Attention would then turn to s.65 of the Act itself. In this respect, consideration is to be given to the recorded interviews of C1 and C2. I have viewed the DVD recording of each interview and read the transcript of the interviews. If the point had been reached, I would have been satisfied that the relevant requirements of s.65(1) and (2) had been met.

184. If the Court had upheld the s.18 objections taken by C1 and C2, I would nevertheless have allowed the Crown to rely upon the recorded interviews with C1 and C2 under s.65 Evidence Act 1995. In reaching such a conclusion, I would have applied the Victorian decisions which, in my view, bear directly upon the questions falling for consideration in this case.

185. Given the conclusions reached by the Court, it is not necessary to say more upon this issue.

Conclusion

186. It was for these reasons that I made the rulings on 6 August 2015 set out at [4] above.

*************

Amendments

13 November 2015 - Changed publication status on cover page.

Decision last updated: 13 November 2015