R v A2; R v KM; R v Vaziri

Supreme Court of NSW|2015-10-21|Before: Johnson J

Judgment

JOHNSON J: At various times on 21, 22, 26 and 28 October 2015 and 2 November 2015, I heard submissions from counsel with respect to a range of directions sought to be given to the jury as part of my summing up.
I indicated rulings on the matters argued during the course of submissions on 22 October 2015 (T1664-1694), on 28 October 2015 (T1862-1863) and on 2 November 2015 (T2032).
What follows constitutes my reasons for rulings made, where reasons have not already been given in the course of the trial.

Complaint

The Crown sought directions that evidence of complaint by C1 and C2 ought be admitted as evidence of the truth of the asserted facts under s.66 Evidence Act 1995 (MFI93 and MFI107). On 28 October 2015, I declined to give these directions (T1862).
The evidence relied upon in this respect comprised: 1. in the case of C1, matters contained in a discussion which took place between C1 and her father, A1, on the afternoon of 29 August 2012 concerning what she had told the investigating officials in the record of interview earlier that day about what the Crown alleged was female genital mutilation; 2. in the case of C2, the matters referred to by C2 in her interview with investigating officials on 29 August 2012 (MFI8).
Submissions were made concerning this issue, during which counsel for the Accused persons resisted the Crown application (T1720-1726).
In my view, there was a fundamental difficulty with the Crown concerning this evidence. The evidence relied upon with respect to C1 is, in fact, her interview with investigating officials on 29 August 2012. This recorded interview forms part of her sworn evidence-in-chief before the jury by way of s.306V Criminal Procedure Act 1986. The audio-recorded conversation in the motor vehicle on the afternoon of 29 August 2012 was also in evidence before the jury (Exhibits AE, AF).
The recorded interview with investigating officials was already in evidence as sworn evidence which was admissible for all purposes.
The sworn evidence of C1 before the jury involved acknowledgment by her that she had discussed the matters contained in Exhibits AE and AF in the motor vehicle with her father. This discussion took place soon after C1 had revealed to investigating officials in her recorded interview, the fact that "khatna" had been performed upon her at a house in Wollongong in the presence of her mother. Again, I do not think that a s.66 direction was appropriate with respect to the conversation in the motor vehicle. To the extent that it constituted a complaint, the fact that it was said was not in doubt given the contemporaneous recording made of the conversation. Further, it was said soon after what was said in the record of interview. It may be said that the conversation in the motor vehicle involved additional matters, including reference to "scissors".
I was not persuaded that any direction utilising s.66 Evidence Act 1995 ought be made with respect to C1.
With respect to C2, the complaint referred to by the Crown was confined to a short part of the recorded interview (pages 18-19, MFI8). At this point, investigators asked C2 if she had "talked to anybody else" (about the alleged female genital mutilation event) and she responded that she had spoken to "my dad" who had said "It's OK" (Q/A247-249, page 19, MFI8).
The recorded interview of C2 forms part of her sworn evidence before the jury by application of s.306V Criminal Procedure Act 1986. There is no more detailed description of what C2 is said to have revealed to her father. In these circumstances, I did not consider that a s.66 direction was appropriate. In the case of C2, the conversation was confined to the record of interview with investigating officials, which was already in evidence. Further, a short and cryptic response was given by C2 which did not reveal any particular acts about which complaint is said to have been made to her father.
It was for these reasons that I declined the Crown application to give any direction concerning the further use of this evidence by way of s.66 Evidence Act 1995.

Murray Direction

Mr Bouveng sought a Murray direction (MFI91). On 28 October 2015, I declined to give such a direction (T1862).
Mr Bouveng submitted that this was a case where C1 and C2 were each essential witnesses to the Crown case so that a warning ought be given in accordance with R v Murray (1987) 11 NSWLR 12.
The Crown submitted that a Murray direction should not be given in this case. It was argued that this case involves a combination of direct and circumstantial evidence, with witnesses supporting the Crown case beyond C1 and C2.
In Ewen v R [2015] NSWCCA 117, Simpson J (as her Honour then was) observed, at [104], that a Murray direction is most commonly used in a case in which the sole evidence of the commission of a crime is that of a single witness, with the direction inviting the jury to scrutinise the evidence of that witness with great care.
I accepted the Crown submission that this is not a case where the evidence of C1 and C2 represents the sole evidence of the commission of an offence. There was a combination of evidence, both direct and circumstantial, upon which the Crown relies, including the telephone intercept and surveillance device evidence.
In these circumstances, I declined to give a Murray direction.

Circumstantial Evidence Direction

Both Mr Sutherland SC and Mr Bouveng submitted that this case was based upon circumstantial evidence, so that the Court should give a circumstantial evidence direction.
Mr Sutherland SC submitted that, in truth, this was a case based solely on circumstantial evidence so that a direction should be given upon that basis which directed the jury to acquit if there was a reasonable hypothesis consistent with innocence on each count.
The Crown submitted that this was a case involving direct and circumstantial evidence, so that directions should not be given upon the basis that the Crown case was wholly circumstantial.
In my view, the Crown case involved a combination of direct evidence and circumstantial evidence. Although some of the direct evidence involved the need to draw relevant inferences, so that the Crown case may be seen as being based partly on circumstantial evidence, this case should not be characterised as one based entirely on circumstantial evidence.
The jury ought be directed with respect to the use of both direct and circumstantial evidence, including the drawing of inferences. However, it was not appropriate in this case to direct the jury as though the case was a purely circumstantial evidence one.
I gave a ruling to this effect on 28 October 2015 (T1862).

Direction under s.165A(2) Evidence Act 1995

Mr Bouveng sought a direction under s.165A(2) Evidence Act 1995 with respect to the evidence of C2 (MFI91). On 28 October 2015, I declined to give such a direction (T1862).
In support of this application, counsel contended that there were factors apart from C2's age, six years at the time of the interview on 29 August 2012, and nine years at the time of giving evidence in September 2015.
Reference was made to part of Exhibit AX, which contains certain details about C2. Exhibit AX states that C2 had been diagnosed with a mild intellectual disability and had difficulties concentrating and had limited attention, but had the capacity to answer questions and give evidence if motivated. Exhibit AX stated, as well, that C2 was currently enrolled in Year 4 at a public school, and that she was in an age-appropriate year at school and was functioning in a normal school environment with additional learning assistance.
Mr Bouveng sought, as part of the proposed s.165A(2) direction (MFI91), that the jury be reminded that C2 "has been diagnosed with a mild intellectual disability and has problems with concentration". I observe that, if any s.165A(2) direction was to be given, it would have been appropriate to refer to the entirety of the matters contained in Exhibit AX.
Mr Bouveng submitted, as well, that the Court should inform the jury, in the proposed s.165A(2) direction, that some of the questions asked of C2 by investigating officials in the interview of 29 August 2012 involved the use of leading questions. I gave a ruling, for the purpose of s.37 Evidence Act 1995, concerning the suggested use of leading questions during the interview of C2 (PT732): R v A2; R v KM; R v Vaziri (No. 21) [2016] NSWSC 24 at [3].
Mr Bouveng sought, as well, as part of the proposed direction, a statement by the Court that there was no opportunity for the Accused KM to properly examine C2 about her assertions. In this respect, I note the discussion which took place, in the absence of the jury, at a point where Mr Bouveng had asked C2 a number of questions in cross-examination (T179-183). Mr Bouveng had indicated that, in his view, there was no real point in proceeding further with cross-examination in light of answers given by C2. Both the Crown Prosecutor and I stated that, if he took that course, there would be no criticism made of him upon the basis that he had not put his instructions to C2.
I keep in mind the ruling made under s.42 Evidence Act 1995 which restricted the use of leading questions, in the first instance, in cross-examination of C1, with leave being left open to Mr Bouveng to ask leading questions in cross-examination after he had utilised, in the first instance, non-leading questions (T111-113). Mr Bouveng cross-examined C1 (T136-143), but did not feel the need to make an application to use leading questions with that witness.
I made a similar ruling with respect to C2, namely that a two-stage approach should be adopted where non-leading questions were used, in the first instance, with leave for counsel to seek to ask leading questions in the light of answers given to non-leading questions (T168-169). The cross-examination of C2 by Mr Bouveng was short (T177-178). Following those questions, there was the indication, to which I have already referred, that there would be no criticism of him for not seeking to ask further questions.
My reasons for the rulings made under ss.37 and 42 Evidence Act 1995 concerning C1 and C2 are contained in R v A2; R v KM; R v Vaziri (No. 21).
It would not have been appropriate, in these circumstances, to give a direction to the jury which included the proposition that there was no opportunity for the Accused KM to properly cross-examine C2 about her assertions. The position expressed by the Crown Prosecutor and myself was that there would be no criticism or other adverse comment (along the lines that there had been non-compliance with the rule in Browne v Dunn (1893) 6 R 67)).
The Crown opposed the giving of a s.165A(2) direction concerning C2. It was submitted that a foundation for such a direction had not been established in this case.
Sections 165 and 165A Evidence Act 1995 are in the following terms: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3). Note. The Commonwealth Act does not include subsection (6). 165A Warnings in relation to children's evidence (1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child, (d) in the case of a criminal proceeding - give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (2) Subsection (1) does not prevent the judge, at the request of a party, from: (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury."
It should be noted that s.165(6) makes clear that a s.165(2) warning should not be given concerning the reliability of a child's evidence, with such a warning to be given only in accordance with s.165A(2) and (3).
Section 165A(1) prohibits a trial Judge from giving a warning in relation to the evidence of a child. Section 165A(2) permits the Court to give a warning if such a direction is requested, and if the Court is satisfied that such a direction is appropriate in the circumstances of the case.
I keep in mind what has been said frequently with respect to the use of s.165 Evidence Act 1995, namely that it does not deal with unreliability of witnesses generally. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts dealing with certain types of evidence, or because there is the danger that the jury may overestimate the probative value of certain evidence: R v Baartman [2000] NSWCCA 298 at [62]; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at 308 [38], 321-323 [95]-[101]; GAR v R (No. 2) [2010] NSWCCA 164 at [97]. In my view, these principles have some application, as well, where a warning under s.165A is sought with respect to a child witness in a trial.
It is to be kept in mind, as well, that the issue to be considered, where application is made under s.165A, is whether the Court should give a warning under the provision. It is not the purpose of the section to require a trial Judge to give judicial support and sanction to defence submissions concerning a child witness, unless a clear foundation has been given for the use of s.165A in the particular case.
As Fullerton J stated in RGM v R [2012] NSWCCA 89 at [97] (with the agreement of McClellan CJ at CL and myself): "A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child's evidence in such a way that it has the appearance of a direction of law."
The account given by C2 in her record of interview with investigating officials on 29 August 2012 was not challenged substantially in the account given by the Accused KM in her own evidence before the jury. One of the questioners used the word "cut" in a question directed to C2, to which the young girl gave an affirmative response. Later on, C2 said that she had been "hurt" in her bottom during this event. KM maintained in her evidence that she had not cut C2.
If there was to be any warning to be given to the jury in this case, it would be confined to a reminder of the age of C2 at relevant times, combined with the contents of Exhibit AX. Reference might be made, as well, to the relatively limited answers given by her in response to questions asked in the presence of the jury.
However, the jury was well aware of all these matters.
In my view, a foundation had not been established for a s.165A(2) warning with respect to C2 in this case. It was not demonstrated that there was a requirement, on top of any submissions that counsel may make, for the Court to give its own independent warning concerning features bearing upon C2.

Good Character

Mr Bouveng sought a direction concerning the use of evidence of good character with respect to his client, KM, who has given evidence in the trial. He submitted that the usual direction should be given inviting the jury to have regard to evidence of good character for two purposes, namely the likelihood of a person of good character committing the offence and also with respect to the credibility of KM as a witness in the trial.
Mr Sutherland SC sought a good character direction with respect to his clients for the first purpose, in view of the fact that neither gave evidence in the trial.
On 28 October 2015, I noted that I would give directions on good character (T1862).

Post-Offence Conduct and Consciousness of Guilt (Lies)

Ultimately, the Crown sought directions to the jury concerning post-offence conduct or consciousness of guilt by reference to lies which were said to have been told by A2 and KM (MFIs 94, 95, 96, 97, 98, 99, 117; T2182-2186).
The Crown pointed to instances where the Accused A2 gave a false story, by way of the "Africa checking" story, to police during records of interview. The Crown pointed, as well, to what were said to have been lies, and the development of the false "Africa checking" story, in telephone intercepts and in conversations recorded by means of surveillance devices.
The Crown submitted that lies had been told, as well, by the Accused KM which should attract a consciousness of guilt direction.
In an earlier judgment, I noted that it would be necessary to formulate directions to be given to the jury concerning lies and consciousness of guilt: R v A2; R v KM; R v Vaziri (No. 7) [2015] NSWSC 1427 at [24].
A clear foundation was laid for the giving of an orthodox consciousness of guilt/post-offence conduct direction to the jury in accordance with established authority with respect to the Accused A2 and the Accused KM.
The Crown accepted a direction concerning consciousness of guilt or post-offence conduct ought not be given concerning the Accused Vaziri (T2184-2186). All alleged lies said to have been told by the Accused Vaziri took place in the offence period 12 August 2012 to 9 October 2012. These alleged lies were relied upon by the Crown as direct evidence of the offences charged against him. As the written directions on the elements of the offences (MFI113) recited at paragraphs 72, 81, 87 and 94: "It is the Crown case that the Accused Vaziri assisted [A2] and [KM] by encouraging them, potential witnesses and other members of the Dawoodi Bohra community to lie to police or to not disclose relevant information to police. Additionally it is the Crown case that the Accused Vaziri was himself involved in putting forward false information to police".
Directions concerning post-offence conduct or consciousness of guilt were given to the jury with respect to A2 and KM.

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