R v A2; R v KM; R v Vaziri

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

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
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."
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."
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.
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.
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.
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.
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.
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
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."
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."
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."
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."
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."
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."
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."
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."
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.
It is not necessary to go further at this point. The "Africa Story"
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."
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."
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.
A number of illustrations will suffice for present purposes.
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."
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."
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."
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."
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."
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.
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.
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.
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"
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."
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."
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.
Once again, it will be sufficient to provide illustrations of the suggested inconsistencies.
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).
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]).
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."
The Crown submits that relevant inconsistency is demonstrated with respect to this topic in a manner related to the third topic, the "Africa story".
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.
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.
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
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."
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.
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).
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.
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."
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.
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.
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.
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
The Crown seeks leave to cross-examine A1 under s.38(3) Evidence Act 1995 on matters relevant only to his credibility.
In this respect, the Crown relied upon three recorded conversations involving A1. The Court was taken to one of these, by way of example.
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."
The extract in the preceding paragraph bears upon the first topic, as well as the issue of credibility.
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.

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Judgment (8 paragraphs)

Cases Cited (14)

Cited By (1)