215 A Crim R 349
El-Haddad v R [2015] NSWCCA 1088 NSWLR 93
R v A2R v KMR v Vaziri (No. 9) [2015] NSWSC 1491
R v GaleR v Duckworth [2012] NSWCCA 174
Judgment (3 paragraphs)
[1]
Judgment (on application by crown for tendency and coincidence directions -t2032)
JOHNSON J: The Crown makes application that evidence already before the jury be used for tendency and coincidence purposes in the trials of KM and A2, and that the jury be so directed.
The Crown served tendency and coincidence notices, for the purposes of ss.97, 98 and 99 Evidence Act 1995, upon the legal representatives for the Accused persons on 22 July 2015.
I have had regard to the Crown submissions on these topics (pretrial MFI34) and draft written directions provided by the Crown (MFIs108, 109, 110 and 111) together with oral submissions made by counsel.
The evidence in question, which is already before the jury, cannot be used for tendency or coincidence purposes unless the respective requirements of ss.97 and 98 are satisfied: s.95 Evidence Act 1995.
Here, several counts are being tried together. Each of KM and A2 are charged with female genital mutilation ("FGM") offences under s.45 Crimes Act 1900 (and alternative counts) against C1 and C2. In the absence of any other direction, the jury would be directed to consider the evidence relevant to one girl without regard to evidence concerning the charges relating to the other girl.
In seeking tendency and/or coincidence directions, the Crown seeks to have the evidence cross-admissible as between the counts for each complainant: El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at 105-106 [40]-[43].
I should observe, once again, that the issues in dispute in this trial, certainly with respect to KM and A2, are relatively narrow. There is no dispute that KM, in the presence of and at the request of A2, did something with a metal instrument to each girl. The Crown says that what was happening was "khatna" (or circumcision) involving a cut or nick to the clitoris (or, at least, to the genital area). The defence assert that what was happening was a form of symbolic "khatna", where no cut or nick resulted. The limited areas of contest have been mentioned in earlier trial judgments: R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491 at [9]-[11].
The principles to be applied on this application are not in doubt, and may be found in decisions including DSJ v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; 215 A Crim R 349; R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487; R v MR [2013] NSWCCA 236 and El-Haddad v R.
It has been observed that there is an overlap between the tendency and coincidence rules, and that there is an awkwardness in separating tendency and coincidence evidence where there is no dispute as to the identity of the alleged offender, but what is in issue is whether the offences occurred: El-Haddad v R at 107 [46].
In this case, not only is there no dispute as to the identity of the Accused persons, KM and A2, but there is no dispute as to what happened on each occasion, except for the critical controversy as to what precisely was done to each girl. This is a somewhat unusual context in which issues of tendency and coincidence arise for consideration.
The Tendency Issue
The tendency sought to be proved against KM is a tendency to act in a particular way, namely:
1. to perform procedures that amount to FGM;
2. to perform such procedures against prepubescent female children;
3. to do so during the New South Wales public school holidays;
4. to do so while the child is laying down on a bed;
5. to do so in a private house, not a clinic or hospital;
6. to do so while other women, related to the child are in the room; and
7. to generally not speak about such procedures in the greater public.
In this trial, topic (a) from this list is the real issue in dispute. As I understand the case of KM (who has given evidence), other listed aspects are not in contest.
The Crown seeks to rely on two areas of evidence in support of a tendency direction against KM:
1. the evidence of each of C1 and C2 concerning the relevant events affecting each girl;
2. a body of less precise evidence which, the Crown contends, discloses the tendency on the part of KM to perform FGM in the Dawoodi Bohra community (see items listed in paragraph 2 of MFI108).
The evidence in the second category (at 13) does not include direct evidence of the performance by KM of "khatna" involving injury to a girl. The Crown relies upon some parts of intercepted telephone conversations and some evidence of KM concerning a girl, A10.
This evidence may be seen as having probative value, but s.97(1)(b) requires that the evidence have significant probative value. If it has, s.101(2) requires that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused person.
In circumstances where this body of evidence is relatively imprecise, and keeping in mind the real issues in dispute in the trial, I am not persuaded that a tendency direction should be given by reference to the body of evidence concerning KM referred to at 13.
I have reached a different view with respect to the evidence of C1 and C2 (at 13). In the practical context of this trial, should the jury be satisfied beyond reasonable doubt concerning FGM or the alternative charge with respect to C1, then that conclusion may be taken into account by the jury for tendency purposes, in reaching a verdict concerning the corresponding count for C2.
Although the reverse approach would also be available to the jury, the reality is that there is a greater body of evidence on the counts concerning C1 than C2.
In this way, the Crown would have the benefit of cross-admissibility of the evidence as between C1 and C2.
I express my satisfaction that the requirements of ss.97(1)(b) and 101 have been met to permit a tendency direction along these lines. I note that Mr Bouveng did not oppose such a direction, which would involve modification of the Crown draft direction (MFI108).
The tendency direction sought by the Crown for A2 (MFI109), involves a similar approach based upon cross-admissibility of the evidence between each of the complainants. The Crown relies upon the factors identified concerning the suggested tendency on the part of KM (set out at [11] above), with appropriate modifications for A2, such as a suggested tendency to engage in FGM against her biological prepubescent female children and to speak to the children about such activities, prior to this occurring.
For the purposes of ss. 97(1)(b) and 101, I am satisfied that a modified version of MFI109 should be used for a tendency direction to the jury with respect to A2. It will be along similar lines to that which I have foreshadowed with respect to KM.
I note that Senior Counsel for A2 did not resist an appropriately worded direction along these lines.
[2]
The Coincidence Issue
I turn to the Crown application for a coincidence direction against KM and A2 (MFIs110 and 111).
The Crown seeks such directions by way of a comparison between the events concerning C1 and C2, accompanied by a submission that there is a particular and peculiar pattern of behaviour such that it is highly improbable that each girl could be giving her account by sheer chance or coincidence. The Crown pointed to similarities along the lines relied upon on the application for tendency directions (see [11] and [21] above).
Counsel for the Accused persons have opposed the giving of a coincidence direction. It was submitted that it was unnecessary and would not, in fact, add anything to the tendency direction which I propose to give.
I bear in mind that a s.98 direction concerns the question of whether it is "improbable that the [two] events occurred coincidentally". In the context of this case, there is no dispute that two general events occurred, involving the relevant participants at the times and places charged. What is in dispute is the precise nature of the event in the form of the procedure carried out on each child, in circumstances which were otherwise very similar.
It is important to keep in mind that s.98 is a provision concerning the drawing of inferences. The statement of Simpson J (McClellan CJ at CL and Fullerton J agreeing) in R v Gale; R v Duckworth at 494 [25] is pertinent. Her Honour said:
"At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
* two or more events occurred; and
* there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
* having regard to those similarities, it is improbable that the two events occurred coincidentally;
* therefore the person in question did a particular act or had a particular state of mind."
It is also important to recognise that this process of reasoning and the drawing of inferences (in this case that the person did the act) is for the tribunal of fact, the jury: R v Gale; R v Duckworth at 494 [26].
It is necessary to keep in mind, and to apply, the steps referred to by Simpson J in R v Gale; R v Duckworth at 495-496 [31]. I have done so in this case.
It is the case that the great bulk of the similarities, in the events concerning C1 and C2, are not in contest. It is the final and critical step or event concerning what was done physically to each child which is in contest.
It is necessary to return to the purpose of coincidence evidence - to permit the jury to undertake an inferential process leading to the question: Is it improbable that the two events occurred coincidentally?
I keep in mind two features at this point:
1. if a coincidence direction is given, it will allow the jury to consider similarities and dissimilarities, including that part of each child's account which supports the Crown case that a cut or nick to the clitoris or genital area occurred - the process is not confined to undisputed similarities;
2. it is not necessary to be satisfied beyond reasonable doubt concerning the allegations about one child or the other before this process is undertaken - it will be a matter for the jury, as the tribunal of fact, to determine what inferences should be drawn concerning the acts alleged to have been carried out by KM and A2.
For the purpose of this ruling, I observe that the accounts of each of C1 and C2 support the Crown case that more was done than some symbolic touching of the genital area. Each account includes the infliction of hurt to the child, with references being made to cutting as well.
It would be open to the jury to consider the similarities and dissimilarities for the purpose of drawing inferences as to what actually was done to each child on each occasion. The contested event in question is the alleged performance of FGM. It would be open to the jury to consider whether the two events occurred coincidentally in this case as part of a benign, symbolic ceremony, or, as the Crown asserts, as part of a circumcision procedure causing a cut or nick to the clitoris, or at least, the genital area.
The evidence would also bear upon the question whether each girl has given credible and reliable evidence concerning what happened to each of them.
In my view, the evidence is such as would permit the jury, acting reasonably, to reach the conclusion (advanced by the Crown) or to draw that inference so that the evidence has significant probative value: R v Gale; R v Duckworth at 495 [27]. I am satisfied, for the purpose of s.101, that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused persons.
This is a case where there is an overlap between the tendency and coincidence rules, of the type which I referred to earlier (at [9]) which arises in particular, where there is no dispute as to the identity of the alleged offender, but what is in issue is whether the offences occurred.
I propose to give coincidence directions to the jury concerning KM and A2. The directions will be in the form of a modified version of MFIs110 and 111.
[3]
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Decision last updated: 18 November 2015