R v A2; R v KM; R v Vaziri (No. 8)

[2015] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation:	R v A2; R v KM; R v Vaziri (No. 8) [2015] NSWSC 1472
Hearing dates:	9, 10 September 2015
Date of orders:	10 September 2015
Decision date:	07 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	A foundation for leave to cross-examine A1 under s.38 Evidence Act 1995 has been demonstrated, with a final ruling as to leave to await the trial.
Catchwords:	CRIMINAL LAW - application by Crown for advance ruling on application for leave to cross-examine under s.38 Evidence Act 1995 - evidence unfavourable to Crown - prior inconsistent statements made by witness - final ruling to await evidence of witness at trial - discretionary factors under s.192 Evidence Act 1995 to be applied
Legislation Cited:	Evidence Act 1995
Cases Cited:	Adam v The Queen [2001] HCA 57; 207 CLR 96 Director of Public Prosecutions (Vic) v McRae [2010] VSC 114 Poniris v R [2014] NSWCCA 100 Potts v R [2012] NSWCCA 229; 227 A Crim R 217 R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 R v Anyang [2011] VSC 31 R v FDP [2008] NSWCCA 317; 74 NSWLR 645 R v Le [2002] NSWCCA 186; 54 NSWLR 474 Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused)
Representation:	Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM)   Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused)
File Number(s):	2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri)
Publication restriction:	---

Judgment

1. JOHNSON J: The Crown sought an advance ruling under s.192A Evidence Act 1995, upon an application for leave to cross-examine at trial an intended Crown witness, A1, under s.38 Evidence Act 1995 with respect to a number of specific topics.

Factual Background

2. A1 is the father of C1 and C2, the complainants with respect to charges, including charges of female genital mutilation, brought against A2 (A1’s wife), KM and Shabbir Mohammedbhai Vaziri.

3. The charges and factual background to the charges, and an outline of the Crown case against the Accused persons, appears in R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 at [7]ff. It is not necessary to repeat that material in this judgment.

The Present Application

4. The Crown called A1 at a pretrial hearing on 3 September 2015. A1 did not object to giving evidence as a prosecution witness in criminal proceedings against his wife: s.18 Evidence Act 1995.

5. A1 had been charged in 2012 with offences arising from the events in question. He was discharged at committal proceedings before the Local Court.

6. The Crown considered that it was under a duty to call A1 as a witness at the trial, as his evidence was necessary to unfold the narrative and give a complete account of all the events upon which the prosecution is based: Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 674. It is the case that A1 is involved in many covertly recorded conversations about these events on and after 29 August 2012, upon which the Crown relies.

7. The s.38 application was based upon a number of contrasts between what A1 had said on 3 September 2015 and what he had said, at earlier times, in a recorded interview with police on 7 September 2012 and in a number of conversations which had been recorded under warrant by way of surveillance device or telephone interception warrant.

8. A1 had received legal advice about his rights and obligations as a witness, before the pretrial hearing. A certificate under s.128 Evidence Act 1995 issued with respect to parts of his evidence on 3 September 2015.

9. I was satisfied that it was appropriate, in this case, to give a ruling before the evidence of A1 is adduced in the trial. The ruling concerns the use of evidence proposed to be adduced from A1 and the operation of s.38 in relation to that evidence: s.192A(a), (b) Evidence Act 1995. The advance ruling procedure under s.192A is utilised, from time to time, where a s.38 application is made before trial: Director of Public Prosecutions (Vic) v McRae [2010] VSC 114.

10. On 10 September 2015, I announced my ruling on the present application in the following terms (PT731.27-732.1):

“On the Crown application under s 38 of the Evidence Act 1995 for leave to cross examine A1, I am satisfied that the Crown has demonstrated that A1 has given evidence on the voir dire on 3 September 2015 which is either unfavourable to the Crown or inconsistent with prior statements made by him, or both, with respect to the following five topics identified by the Crown in its written submissions MFI 39, namely:

(a)    A1's understanding of Khatna in the Dawoodi Bohra community;

(b)    complaint about Khatna to A1 by C1 and C2;

(c)    what is described as the Africa story;

(d)    what is described as the checking story;

(e)    KM's role in the community.

Subject to any further submission which may be made in light of the answers given by A1 in his evidence in chief at the trial, I will grant leave to the Crown to cross examine him with respect to these five topics and as to credibility. The extent of cross examination under s 38 which will be allowed, will be the subject of further consideration, in particular by reference to factors in s 192(2)(a), (b) and (c) of the Evidence Act 1995.”

11. I should record, as well, the additional observations which I made after giving that ruling (PT732.15-30):

“… Now, with respect to the s 38 aspect, if it requires any further explanation, the ruling is, of course, prospective; A1 is yet to give evidence in chief at the trial. Once that has happened, if there is anything that gives rise to any other submission, I would entertain it but on the assumption that what he says is along the same lines as given on the voir dire, there will be a grant of leave but it's not appropriate to crystallise that grant of leave, I think, until he's actually given the evidence at the trial in case there's something else that's said. That's why I have expressed it in that way.

With respect to the material, the expectation is that the Crown will fine tune the material which it will seek to rely upon in the event that the s 38 issue becomes a reality, with particular attention to confining the amount of time in the trial which will be needed for that purpose, minimising the risk of any prejudice to the accused persons and ensuring that the material is placed before the jury in a manner which can be comprehended relatively quickly.“

12. The approach taken by me on 10 September 2015 was premised necessarily on the position being the same, when A1 is called to give evidence before the jury, as it was at the time of the pretrial hearing on 3 September 2015. It is assumed that A1 will adhere to the position taken by him on that occasion: Adam v The Queen [2001] HCA 57; 207 CLR 96 at 102 [13]; R v Anyang [2011] VSC 31 at [8].

13. This judgment contains my reasons for the ruling made on 10 September 2015.

Relevant Statutory Provisions

14. Section 38 Evidence Act 1995 provides as follows:

“38   Unfavourable witnesses

(1)    A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a)    evidence given by the witness that is unfavourable to the party; or

(b)    a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c)    whether the witness has, at any time, made a prior inconsistent statement.

(2)    Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3)    The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4)    Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5)    If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6)    Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a)    whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b)    the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7)    A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a)    a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b)    the party is a witness in the proceeding.”

15. Section 192 of that Act is in the following terms:

“192   Leave, permission or direction may be given on terms

(1)    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)    the extent to which to do so would be unfair to a party or to a witness; and

(c)    the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d)    the nature of the proceeding; and

(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”

Relevant Legal Principles

16. In R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005, I set out at [9]-[17] the principles to be applied where the Crown makes application for leave under s.38 Evidence Act 1995:

“9   Section 38 Evidence Act 1995 abrogates the common law rule relating to hostile witnesses: R v Lozano (NSW Court of Criminal Appeal, 10 June 1997, unreported, BC9702441, page 6). The intention of the Australian Law Reform Commission was to ensure (via s.38) that courts are not deprived of relevant testimony which had been excluded by operation of the hostile witness rule: R v Lozano at page 6. Subject to several discretionary considerations, s.38 permits a party, by leave, to cross-examine a witness who meets any of the criteria in s.38(1) of the Act. It is a section that needs to be applied with some care in criminal trials: R v Fowler [2000] NSWCCA 142 at [120]; R v Parkes (2003) 147 A Crim R 450 at 463 [73].

10   Section 38 is not confined to the situation where a party calling a witness is confronted unexpectedly by evidence that is unfavourable or inconsistent with prior statements or by a witness who unexpectedly appears not to be making a genuine attempt to give evidence: R v Fowler at [121]; R v Parkes at 462 [70].

11   The word ‘unfavourable’ in s.38 (1)(a) of the Act does not mean ‘adverse’; it means ‘not favourable’ to the party making the application: R v Souleyman (1996) 40 NSWLR 712 at 715; R v Lozano at page 6; R v Fowler at [121]; R v Ronen [2004] NSWSC 1298 at [49].

12   Section 38 permits the applicant party to question ‘as though … cross-examining the witness’ but only ‘about’ the three subjects described in s.38(1)(a)-(c). As Heydon JA observed in R v Le [[2002] NSWCCA 186; 54 NSWLR 474] at 486 [66]-[67], cross-examination ‘about’ the subject should not be narrowly confined:

‘One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.

In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness’s credibility on the s 38(1) subjects.’

13   The further observations of Heydon JA in R v Le at 493 [90] are also pertinent to this question:

‘Section 38 permits the testing of the evidence in chief with a view to establishing the probability of the truth of the matters asserted in the prior inconsistent statement. Hence it permits examination of the witness on matters of credit with a view to the jury accepting the prior inconsistent statement and rejecting the later sworn evidence. It also permits an examination of the background at the time with which the statements are dealing, the background at the time when the prior inconsistent statement is made, and the background at the time when the witness moves to a version different from the prior inconsistent statement. It permits an inquiry into the possible reasons for the change, including the motives for the change. Judicial rulings which prevented these techniques being employed where application is made for leave to question under s 38 would not be giving full effect to the section.’

14   The interests of justice, the public interest and the administration of justice may be served by the testing of the evidence of a witness by way of a s.38 examination: R v Le at 487 [68]; R v Ronen at [71]. The grant of leave may permit a truer picture of the situation to be presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s.38: R v Parkes at 464 [81], [83].

15   The factors which bear upon the exercise of discretion where application is made under s.38 are not confined. There are express statutory factors referred to in s.38 (6) and s.192 Evidence Act 1995. In addition, in R v Le at 493 [90], Heydon JA observed that, in a s.38 application, the Court ought give consideration to s. 137 Evidence Act 1995, whether or not the parties make submissions with respect to that provision.

16   Section 192(2)(b) requires the court to consider whether a grant of leave would be unfair to a party (the Crown or the accused) or to a witness. With respect to any suggested unfairness to an accused, it is important to note that the defence can test the evidence led in a s.38 examination by defence cross-examination of the witness: s.38(4); Adam v The Queen [2001] 207 CLR 96 at 107 [30]. To refuse a s.38 application, in some circumstances, may be unfair to the Crown: R v Ronen at [70].

17   It is necessary to keep in mind the risk that s.38 cross-examination may convert the focus of the trial from the guilt of the accused for the crime charged to whether the witness is lying to protect the accused: R v Hogan [2001] NSWCCA 292 at [5], [76]; R v Le at 492-493 [89]; R v Ronen at [32], [72]. The Court should be alert to the risk of being sidetracked into collateral issues by way of grant of leave under s.38: R v Ronen at [32].”

17. Subject to one qualification, I have kept these principles in mind in considering the present application.

18. The qualification relates to the mention of s.137 Evidence Act 1995 in the final sentence of R (Cth) v Petroulias (No. 29) at [15]. What was said about s.137 in R v Le [2002] NSWCCA 186; 54 NSWLR 474 must now be considered in light of decisions of the Court of Criminal Appeal in R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 649-653 [16]-[30]; Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 233 [64]-[66] and Poniris v R [2014] NSWCCA 100 at [36]-[50].

The Topics in Relation to Which Leave is Sought by the Crown

19. I will outline the basis for my ruling with respect to each of the nominated topics.

A1’s Understanding of Khatna in the Dawoodi Bohra Community

20. The Crown pointed to evidence of A1 at the pretrial hearing on 3 September 2015 as follows (PT622-624):

“Q. What do you understand by the word ‘Khatana’?

WITNESS: For man I think it is straight forward, I can say that it's circumcision. For females, I have been made aware of this by my wife, and basically it means there's some sort of prayers that are done during a ceremony where a girl is - I'm not sure, it's around 6, 7, 8 years of age or onwards - it's a female ritual where they touch some sort of a metal object on the private parts and some prayers are done at the same time.

CROWN PROSECUTOR

Q. When you say they touch some type of metal - is that what you said?

A. Yeah.

Q. - on the private parts, what do you understand is the type of metal that is used?

A. I don't know.

Q. And whereabouts on the private parts does the metal come into contact with the girl?

A. I can't - I don't know exactly.

Q. And what is the purpose of this ritual?

A. I don't know. Just like in male, I don't know what is the purpose of a man's circumcision, medically I can't say.

Q. Is any part of the girl cut when the metal touches her private parts?

A. No.”

21. The Crown referred, as well, to the later evidence of A1 (PT642):

“Q. Now you have told us about the procedure as you understand it, khatna, being explained to you by [A2] and it involved was it a metal instrument?

A. A metal object.

Q. Do you know what that metal object was?

A. Now I know it was a forceps.

Q. Who told you that?

A. [A2].

Q. And did she tell you what they did with the forceps?

A. No.

Q. When did she tell you about the forceps being used?

A. I'm not sure it was before the JIRT [changed from jailed in transcript] interview or after, I'm not sure.”

22. The Crown submitted that the evidence set out above is unfavourable to the Crown case for the purpose of s.38(1)(a) as it is the Crown case that, in each case, C1 and C2’s clitoris was cut in the course of the Khatna procedure.

23. The Crown submitted that this evidence of A1 was also inconsistent with the contents of some eight conversations recorded under either surveillance device warrant or telephone interception warrant.

24. By way of example, the Crown refers to a recorded conversation on 29 August 2012 (Exhibit PTK, Tab 35), where A2 is having a conversation with A1 in which, on the Crown case, she is explaining the Khatna procedure. The Crown submitted that A1’s knowledge of Khatna, as described to him by A2, is inconsistent with the Khatna procedure explained by A1 in his evidence.

25. The Crown points, as well, to a recorded conversation on 29 August 2012 (Exhibit PTK, Tab 34), where A1 expresses concern that they have a problem, but KM has a bigger problem than them, and that KM would be caught. The Crown submitted that this is inconsistent with a benign Khatna procedure occurring.

22. As stated on 10 September 2015, I am satisfied sufficiently that unfavourability and inconsistency has been demonstrated with respect to this topic. As also indicated on 10 September 2015, the extent to which the Crown will be permitted to cross-examine A1, in particular in a manner which involves the playing of recorded conversations which would not otherwise be in evidence, will be the subject of further consideration before the final grant of leave is made.

23. It is sufficient to record my ruling that the Crown has crossed the s.38 threshold with respect to this topic.

Complaint to A1 by C1 and C2 about Khatna

28. The Crown pointed to evidence given by A1 on 3 September 2015 (PT631):

“Q. In terms of now, do you know what it was that happened to C2 on that occasion?

A. Yes.

Q. What was that?

A. Khatna.

Q. Do you know now, with any detail what happened to C2 in the course of that khatna procedure?

A. It's the same like, same khatna procedure where some sort of metal was attached in her private parts and there was some prayers going on at the same time.”

29. The Crown relied, as well, upon the following evidence of A1 (PT633):

“Q. Did C1 ever tell you anything about the procedure that occurred in Wollongong?

A. No.

Q. What about C2, did C2 ever tell you about the procedure?

A. No.

Q. Did she tell you possibly before that something was going to happen to her; I'm talking about C2?

A. No.

Q. What about C1, did C1 mention anything to you about why she was going to Wollongong?

A. No.”

30. Reliance was placed upon the following evidence of A1 (PT639):

“Q. Did C1 ever talk to you about something happening to her private parts with scissors?

A. No.”

31. The Crown submitted that this evidence was unfavourable to the Crown case for the purpose of s.38(1)(a) because it is the Crown case that C1 did complain to A1 on 29 August 2012 during a covertly recorded conversation in a motor vehicle in which the following was said (Exhibit PTK, Tab 34):

“A1: What did you say?

C1: From here cut. I am not sure but she …cut.

A1: There can not [sic] be cut there. She asked you what is cut? Other people do cut. What she asked? There was no cut.

C1: She said….I am not sure….

A1: She said that you had cut? Others do the cut. Okay

C1: Yes I said that. I am not sure about the cut.

A1: She did ask what it is. So, you said you had cut. No, you have no cut. We do not do cut…….. No we do not cut, we can not cut [sic]….Nothing was cut of yours. We don’t do the cut, we can’t cut it here.

C1: 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….

A1: Not with scissors. They do forceps; forceps is used for cleaning purpose to check up.”

32. The Crown pointed, as well, to C2’s statement in her recorded interview of 29 August 2012 that she had told her father about what had happened:

“Q252:   Did Mum say anything to you?

A: No.

Q253: No. Have you talked to anybody else [about the procedure]?

A: No, my Dad.

Q254: Your Dad. What did your Dad say?

A: It’s O.K.

Q255:    When did he say that?

A: I don’t know.”

33. The Crown submitted further that part of the police interview with A1 on 7 September 2012 is pertinent (Exhibit PTK, Tab 3):

“Q160:   O.K. [C2] told us that she had told her Dad and he said, ‘It's O.K.’ What can you tell me about that?

A: Told her Dad what?

Q161: Told her Dad about the cut on her private part.

A I don’t remember.

Q162:   Do you ever recall having a conversation with [C2] about a cut on her private part?

A: Not at all.

Q163:   And do you ever recall a conversation that you had with [C1] about female genital mutilation and the cutting of her private part?

A: Me? No.”

34. The Crown submitted, as well, that A1 had demonstrated unfavourability and inconsistency in the course of a recorded conversation on 31 August 2012 between A1 and Hussein Karimjee (Exhibit PTK, Tab 20). In that conversation, A1 said (page 13):

“… I have already just told that to [C1]. Yesterday, the other day, said, was it not so, that ‘Those people told me’, at that time, I said as this, ‘No, actually, in your case, only check-up had taken place.”

35. A little later, A1 said to Mr Karimjee (page 14):

A1 - “Yes, I said, ‘No, we do not perform that procedure for you; we had just carried out [in a laughing tone] merely the check up.”

Mr Karimjee - “hmm, okay, that’s good.”

36. I am satisfied that the Crown has demonstrated unfavourability and inconsistency with respect to this topic so as to prima facie warrant a grant of leave under s.38.

37. It is not necessary to go further at this point.

The “Africa Story”

38. The Crown relies upon the following evidence given by A1 on 3 September 2015 (PT638):

“Q. When C1 and C2 came back from Africa, did you have any concerns or fears that something might have happened to them there?

A. No, not at all.

Q. Were you suspicious that something might have happened to them there?

A. Does the certificate still stand?

HIS HONOUR

Q. It does?

A. Thank you. Can you ask the question again?

CROWN PROSECUTOR

Q. Were you suspicious that something might have happened to C1 and C2 when they were in Africa?

A. No.

Q. Did you ever talk to A2 about concerns you might have had about something happening to C1 and C2 in Africa?

A. No, I didn't have concerns.”

39. The Crown refers, as well, to the further evidence of A1 (PT641):

“Q. Just going back to your daughters' trips, I think they have been to Africa more than once, is that correct?

A. Yes.

Q. After your daughters returned from Africa in 2011 did you have any suspicions that your mother in law might have had a female genital mutilation type procedure conducted on either of your daughters?

A. No.”

40. The Crown submits that this evidence is inconsistent with assertions made by A1 on earlier occasions. Reliance is placed upon 12 telephone intercept transcripts, four surveillance device transcripts and parts of the police interview with A1 on 7 September 2012.

41. A number of illustrations will suffice for present purposes.

42. In the course of a recorded conversation between A1 and KM at 3.20 pm on 29 August 2012 (Exhibit PTK, Tab 5), KM and A1 are discussing what C1 said had happened on the occasion relevant to this trial. In the course of that conversation, A1 said (pages 7-8):

A1 - “I will tell those people that I am totally against this and I, um, we had gone to Africa and India.”

KM - “Hmm!”

A1 - “In fact, I, we, for the purpose of checking that did not perform this.”

KM - “Hmm hmm!”

A1 - “I called you.”

KM - “Hmm hmm.”

A1 - “Ok?”

KM - “To check that it’s not done, isn’t it?”

A1 - “Yea.”

KM - “Yes. Ok, let’s get going.”

A1 - “And you or to you; if the worst case scenario, if someone comes to ask you, you say, ‘Yes, yes, as far as I can see, there is nothing being done?”

KM - “Ok, let’s get going.”

A1 - “OK?”

KM - “Hmm hmm.”

A1 - “And if it has been done, bad luck; had been performed in Africa.”

KM - Yes, that way. Ok.”

A1 - “Ok?”

KM - “All right, Yes.”

A1 - “Yes, yea.”

KM - “Ok then, thanks.”

A1 - “Yes, yea.”

KM - “For letting me know.”

43. In the course of a recorded conversation between A1 and A2 on the afternoon of 29 August 2012, A1 says to A2 (Exhibit PTK, Tab 34):

“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 being done there. We do to India and Africa and we also do up there.”

44. Later in the same conversation, A1 said to A2:

“… if they ask you, have you done it? Then say yes I think I may have done. I don’t have idea, I don’t know. But I wouldn’t be surprised if it happened as our people do it.”

45. A little later again, in the same conversation, A1 said to A2:

“I said … we had a talk with my wife … I do not know what they do in circumcision. Yes, I do concern. I had talk with my wife and she said that we will do check up. We will call a lady, [KM]. Because she is a registered nurse and she knows … she came and ya … my wife organised it and I said ya … do the check.”

46. The Crown relied upon parts of the police interview with A1 on 7 September 2012 (Exhibit PTK, Tab 3):

“Q47   Do you agree that due to the concerns that you had that they had been mutilated in Africa you had both of your daughters checked out by a person in Australia?

A   Yes.

Q48   O.K. And do you agree that, I think it's the case that you said [C1] was examined, or checked out, two years ago?

A   Yeah. I don’t exactly remember, but it was after a trip from Africa in 2008, 2009.

Q49   O.K.

DETECTIVE SERGEANT STEK

Q50    [10.38] That was [C1] or [C2]?

A   [C1].

Q51   [C1].

DETECTIVE SENIOR CONSTABLE MCDONALD

Q52   And do you agree that during this conversation on Wednesday you had, you, you told us that you had [C2] checked out, or examined, in relation to female genital mutilation four to five months ago, this year, 2012?

A   Yeah. I'm not sure of the dates, but yes, I know it's this year some times.

Q53   O.K. And - - -

A It might have been later I think.

Q54   And do you agree that you, you, you told us that the reason why you got them checked out is because there was, you were suspicious, you, yourself and your wife were suspicious that they may have been mutilated overseas in Africa?

A   Yeah. Yes.

Q55   And do you agree that you, you, you believe that your mother-in-law may have instigated this?

A   Yes.

......

Q91   Are you able to offer any explanation as to why she would come up with that?

A   Um, I can, the only thing I can think is that because of what was happening when she went to Africa and there was some conversation about this. I think [A2] might have explained to her that this is what happens to children here.

Q92   O.K.

A   So she might have confused an examination and a procedure. But definitely I've got no - - -

Q93   O.K.

A   That's the only thing I can think. Otherwise, no, I think [A2] might have explained to her that this is what, might have happened to other kids there, but no.

…..

Q200   From our conversation last Wednesday and you told me that you believed [C1] and [C2] may have had a procedure done in Africa - - -

A   I didn’t believe, we, we were suspicious.

Q201   Suspicious, sorry. You were suspicious that they had a procedure done in Africa. O.K. And I told you that I believed they had a procedure done in Australia.

A   Mmm.”

47. The Crown submitted that evidence of A1 under this heading was unfavourable and was inconsistent with prior accounts given by him either in his police interview or in the covertly recorded conversations.

48. I should observe that Mr Sutherland SC, for A2 and the Accused Vaziri, acknowledged that the “Africa story” was untrue and that there would be no issue at the trial in that respect.

49. I am satisfied that relevant unfavourability and inconsistency is demonstrated by reference to material falling under this heading. I have taken into account the defence position concerning this material in reaching this conclusion.

50. In support of this argument, the Crown sought to rely upon a significant number of other recorded conversations in addition to those to which reference is made in this judgment. In determining the extent of the grant of leave to be granted to the Crown under this heading, I will keep in mind the approach foreshadowed on 10 September 2015 (see [10]-[11] above) and the provisions of s.192 Evidence Act 1995.

The “Checking Story”

51. The Crown referred to evidence given by A1 on 3 September 2015 (PT639):

“Q. Did you ever arrange to have either C1 or C2 checked to see if anything had happened to them?

A. That's after the interview with JIRT, yes.

Q. What about before the interview with JIRT, did you ever arrange to have either C1 or C2 checked to see if anything had happened to their genital area?

A. No.

Q. Did you ever discuss such a topic with A2?

A. No.

Q. Do you know if either of your daughters were examined in Australia for ensuring that nothing might have happened to them in Africa?

A. No.”

52. The Crown referred, as well, to the following evidence of A1 (PT642):

“Q. Did you ever arrange for [KM] to examine either of your daughters?

A. No.

Q. To your knowledge did your wife [A2] ever arrange for [KM] to examine either of your daughters?

A. No.”

53. The Crown submitted that the evidence of A1 set out above is inconsistent with material contained in 12 telephone intercept conversations, three surveillance device conversations and answers given by A1 during his police interview on 7 September 2012.

54. Once again, it will be sufficient to provide illustrations of the suggested inconsistencies.

55. The Crown points again to the recorded telephone conversation between KM and A1 at 3.20 pm on 29 August 2012 (referred to at [42] above).

56. The Crown refers, as well, to the conversation between A1 and A2 recorded by way of surveillance device on 29 August 2012, extracts of which are set out earlier in this judgment (at [43]-[45]).

57. The Crown relies upon the following parts of A1’s police interview of 7 September 2012 (Exhibit PTK, Tab 3), which repeat some portions, relied upon concerning the “Africa story”:

“Q47   Do you agree that due to the concerns that you had that they had been mutilated in Africa you had both of your daughters checked out by a person in Australia?

A   Yes.

Q48   O.K. And do you agree that, I think it's the case that you said [C1] was examined, or checked out, two years ago?

A   Yeah. I don’t exactly remember, but it was after a trip from Africa in 2008, 2009.

Q49   O.K.

DETECTIVE SERGEANT STEK

Q50   [10.38] That was [C1] or [C2]?

A   [C1].

Q51   [C1].

DETECTIVE SENIOR CONSTABLE MCDONALD

Q52   And do you agree that during this conversation on Wednesday you had, you, you told us that you had [C2] checked out, or examined, in relation to female genital mutilation four to five months ago, this year, 2012?

A   Yeah. I'm not sure of the dates, but yes, I know it's this year some times.

Q53   O.K. And - - -

A   It might have been later I think.

Q54   And do you agree that you, you, you told us that the reason why you got them checked out is because there was, you were suspicious, you, yourself and your wife were suspicious that they may have been mutilated overseas in Africa?

A   Yeah. Yes.

Q55   And do you agree that you, you, you believe that your mother-in-law may have instigated this?

A   Yes.

Q56   O.K. Do you agree that the person that you nominated to, who checked out, or sorry, examined your daughters in Australia was a lady by the name of [KM]?

A   Yes.

Q57   And do you agree that you told me that she lives in Campbelltown?

A   Yes.

Q58   Do you agree that you told me that this lady by the name of [KM] is a registered nurse?

A   Yes, she is a midwife. Whether she is registered or not I am not sure really.

Q59   O.K.

A   But I know she has been a nurse ..... and a midwife I think.

Q60   O.K. O.K. And do you agree that you told me that her husband owns a post office?

A   Yes.

Q61   Or her and her husband own a post office. Do you agree that you told me that you said [A2] would have told you if they had been subjected to female genital mutilation?

A   After the, after the checking and examination, yes, she would definitely.

…..

Q69   Have you spoken to [A2], after the, after you saying the children have been examined, have you spoken to [A2] about female genital mutilation or in, in your words here ..... circumcision?

A   Yes. She told me that they were fine.

…..

Q96   O.K. I'll, I'll just make it clear 'cause I'm obviously not medically inclined - - -

A   O.K. You - - -

Q96   - - - but when I say procedure, I mean the actual cutting of her clitoris, or in her words, cutting her private part. When we say examination, that's, that's the words that you're telling before, checking a vagina. Is that correct?

A   Yeah, yeah.

Q97   O.K. Just so we're on the same page. Are we right with that?

A   Yep.

Q98   O.K. So [C1] said that the cutting of her private part occurred in Wollongong. What can you tell me about that?

A   Well, the examination happened in Wollongong, yes.

Q99   O.K. Do you know who was present when the examination happened?

A   Ah, obviously [KM] was there and ah, [A2] was there and my Aunt was there.

MR KARIMJEE

Can you, you're saying were there, do you mean in the actual residence or in the room that the examination took place? Can you clarify.

A   In the residence.

DETECTIVE SENIOR CONSTABLE MCDONALD

Q100   O.K.

A   Yeah.

MR KARIMJEE

So are you referring when you saying who was present, are you referring to actually in the room that witnessed the examination or was present in the - - -

DETECTIVE SENIOR CONSTABLE MCDONALD

Q101   Yes. Who, who witnessed the examination?

A   I wouldn’t know.

Q102   O.K.

A   I wasn’t there.

Q103   When you say your Aunt was there - - -

A   Correct.

Q103   - - - in the residence, what, what's your Aunt's name?

A   Ah, [A3].

Q104   How do I spell that?

A   [A3].

Q105   O.K. Are you aware of anyone else that was in the residence apart from [A2], [A3] - - -

MR KARIMJEE

[KM].

DETECTIVE SENIOR CONSTABLE MCDONALD

Q105   - - - and [KM]?

A   No. I'm not sure because I wasn't there and it's been a while ago so these are the ..... I can list.

Q106   O.K. From your understanding, do you know when this examination happened?

A   It must have, it happened after their holidays, so some times 2009, 'cause there, we went there in December, January, so it must have happened some times around that time after that.

…..

Q127   O.K. Again, just jumping back to [C1] interview, when we spoke to [C1] and when she brought up [C2]. O.K. She indicated that [C2], again I apologise, had her procedure at home, at your home at [xxx] Baulkham Hills. What can you tell me about that?

A   Yes, she had the examination done at my home.

Q128   Do you know who was there at the time?

A   Yes, I know.

Q129   O.K.

A   [KM] was there. Um, in the residence [KM] was there, I think my girls were there at home because it was holiday. My Mum was there and my, yeah, that's it. I think my Mum; obviously [A2] was there, [KM], and the girls.

Q130    O.K. What's your mother's name?

A   [A5]..

Q131   How do you spell that?

A   [A5].

Q132   O.K.

DETECTIVE SERGEANT STEK

Q133   Same last name as your .....

A   Yeah same last name.

Q134   And from your understanding, you, you just mentioned that they were in the residence, do you know if any of those persons witnessed the examination taking place?

A   Yes ..... [A2] was there and [KM], but I don’t know anybody else.

Q135   O.K. You just indicated that it occurred in the holiday - - -

A   Yep.

Q135   - - - it was at a holiday time. Do you remember which holiday it was?

A   ..... it was school holiday ..... I don’t know whether it was the winter holidays or the Easter ones. I'm not sure.

…..

Q159   O.K. What can you tell me about that?

A   ..... I don’t, don’t know because I wasn’t there. I don’t even know where the examination took place.”

58. The Crown submits that relevant inconsistency is demonstrated with respect to this topic in a manner related to the third topic, the “Africa story”.

59. Mr Sutherland SC acknowledged that the “checking story” was not true and that no attempt would be made at trial to advance it as a true account.

60. There is a considerable overlap between the third and fourth topics, the “Africa story” and the “checking story”. In the material relied upon, the two issues travel together. I am satisfied that relevant inconsistency has been demonstrated so as to cross the s.38 threshold. In reaching this view, I have had regard to the defence position concerning material on this topic.

61. As with the third topic, the Crown pointed to a large number of recorded conversations which were said to demonstrate inconsistency. Once again, the approach to be taken at trial with respect to the extent of any grant of leave will be affected by considerations foreshadowed by me on 10 September 2015 (see [10]-[11] above) and the provisions of s.192 Evidence Act 1995.

KM’s Role in the Community

62. The Crown referred to the following evidence of A1 given on 3 September 2015 (PT639):

“Q. Do you know, you've mentioned her name, KM?

A. (Witness nodded).

Q. How do you know her?

A. I know her as a member of the community.

Q. To your knowledge, does she have a particular role in your community?

A. No.”

63. The Crown submitted that this evidence is inconsistent with statements made by A1 in some 16 electronically recorded conversations. The Crown took the Court to a number of transcripts which were said to be examples.

64. In the course of a conversations at 3.04 pm on 29 August 2012 between A1 and the Accused Vaziri (Exhibit PTK, Tab 4), the Crown submits that A1 is aware that KM was actively involved in the procedures under consideration so that A1 expresses an intention to speak to KM about the topic (pages 5, 9).

65. In a conversation between A1 and KM at 3.20 pm on 29 August 2012 (Exhibit PTK, Tab 5), A1 calls KM and discusses with her the fact that C1 has told investigating officials what had happened. In the course of this conversation, the Crown contends that A1 outlines to KM the “Africa story” and the “checking story”, with KM accepting that such an account should be given.

66. During a recorded conversation between A1 and Mr Karimjee at 10.25 am on 1 September 2012 (Exhibit PTK, Tab 21), the following was said (page 2):

A1 - “It is very, very … as far as I do not know, [A2] explained to [KM]. When they spoke. She said that it just very very little part.”

Karimjee: “Yes, OK.”

A1 - “As far as [KM] was concerned, she was very confident. No … no … it can’t be seen or anything you see.”

Karimjee - “Oh, … OK. Then it’s OK.”

A1 - “So, that’s a bit promising.”

67. The Crown submitted that inconsistency was demonstrated between the evidence of A1 at the pretrial hearing and earlier statements made by him in recorded conversations. In particular, the Crown submitted that A1 demonstrated, at an early point in his conversation with the Accused Vaziri, the fact that KM had been involved in these matters and that he considered she should be spoken to promptly in that respect. Thereafter, A1 rang KM and discussed the matter with her. The Crown pointed to later conversations as well which, it was submitted, pointed to A1 having some knowledge that KM performed a role in the community as a circumciser.

68. Mr Bouveng, counsel for KM, submitted that the recorded conversations disclose, at the highest, the fact that KM had performed a role with C1 and C2, but not that she performed a role in the community, as a circumciser or otherwise.

69. I am satisfied that the Crown has demonstrated inconsistency under this heading. The discussions undertaken by A1, very soon after he and A2 had learned that C1 and C2 had spoken to investigating officials, involved an indication of his knowledge of the role of KM with respect to his daughters. An inference is available, at the least, that this knowledge was based upon A1’s pre-existing knowledge of a role played by KM in the Dawoodi Bohra community.

70. It will, of course, be a matter for the jury to determine what findings should be made concerning KM, for the purpose of reaching verdicts. I am satisfied, however, that the s.38 threshold has been passed with respect to this topic.

Credibility

71. The Crown seeks leave to cross-examine A1 under s.38(3) Evidence Act 1995 on matters relevant only to his credibility.

72. In this respect, the Crown relied upon three recorded conversations involving A1. The Court was taken to one of these, by way of example.

73. In a conversation at 4.05 pm on 29 August 2012 involving A1 and A1’s mother (Exhibit PTK, Tab 6), the following was allegedly said (page 2):

A1 - “… mummy we did khatanat.”

A1’s mother - “Ha …”

A1 -    “Problem has been caused because of that.”

A1’s mother - “To [C2].”

A1 - “Both.”

A1’s mother - “Ha …”

A1 - “We will talk later. First just recite something.”

A1’s mother - “Don’t worry. I will recite.”

74. The extract in the preceding paragraph bears upon the first topic, as well as the issue of credibility.

75. I am satisfied that the s.38 threshold has been crossed with respect to credibility. In this regard, I have had regard to the other topics referred to in this judgment, as well as the particular example relied upon by the Crown under this heading.

Conclusion

76. As indicated on 10 September 2015, in the passages extracted at the commencement of this judgment (at [10]-[11]), and for the reasons provided in this judgment, I am satisfied that the Crown has crossed the s.38 threshold so as to prima facie warrant a grant of leave to cross-examine A1, with respect to the topics identified in this judgment.

77. Before there is a formal grant of leave, however, the Court will have regard to the evidence given by A1 in examination-in-chief before the jury, together with identification by the Crown of the extent of any cross-examination to be undertaken (in particular by reference to transcripts of recorded conversations) if a grant of leave is actually made with respect to the nominated topics.

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Decision last updated: 17 November 2015