R v A2; R v KM; R v Vaziri

Trial Rulings Concerning s.42 Evidence Act 1995

1. C1 was called as the first witness in the trial. She gave evidence by way of closed-circuit television with her evidence-in-chief being constituted substantially by her recorded interview.
2. The Crown made application under s.42 Evidence Act 1995 seeking to restrict the use of leading questions in cross-examination of each of C1 and C2 (MFI4).
3. Submissions were made by counsel on the s.42 application. At the conclusion of argument, I stated that I would give more detailed reasons for the ruling at a later time. However, for the assistance of counsel and to allow the trial to proceed directly before the jury, I said (T112-113): "I will give more detailed reasons for this ruling at a later time. However, for the assistance of counsel at this time I indicate that with respect to the cross examination by Mr Bouveng on behalf of the accused [KM] that I am satisfied that the facts concerned would be better ascertained if leading questions were not used with respect to the subject matters referred to in paragraph 3 of the Crown's written submissions which relate to what is really the sole issue in dispute in this trial. Those are what happened to [C1] before, during and after the alleged FGM procedure, [C1's] understanding of khatna, how [C1] felt during, before and after the procedure and any conversation that [C1] may have had with any third parties, including relatives, about the alleged FGM procedure. I exclude from that the investigating officials who interviewed her on 29 August 2012. I note in this respect that if Mr Bouveng commences his cross examination with the use of non leading questions that will, I trust, allow the Court to understand what the position of the witness is in response to the facts in issue on the critical issue. I note that this ruling does not stop Mr Bouveng from drawing the witness' attention to a particular question or answer in the interview. That is not a leading question but an introductory question which would then lead to the next question which, for the first part at least, should not be a leading question. I note that this issue may be revisited in the light of the answers given by [C1] to Mr Bouveng in cross examination in response to non leading questions. In particular, if [C1] maintains the account given in the recorded interview, MFI 2, it would be appropriate for Mr Bouveng to have an opportunity to put his client's instructions to [C1] at what would be the last phase of his cross examination. However, whether that position is to be reached will depend upon what the witness says in response to non leading questions. If the position is reached where counsel seek to raise with me that scenario where Mr Bouveng should be permitted to ask leading questions to put instructions, then it should be indicated that there is a further question of law, I will ask the jury to leave and I will deal with this promptly. I note that Mr Sutherland SC has indicated that whether he seeks to cross examine the witness at all will be dependant [sic] upon the cross examination of Mr Bouveng, so I do not at this stage say anything with respect to the possible cross examination by Mr Sutherland SC for the other accused. I hope that what I have said makes sufficiently clear what the position is in the first phase, at least."
4. Following the evidence of C1, in which cross-examination on behalf of the Accused persons did not seek leave under the second-phase approach referred to in my judgment, the Crown called C2 to give evidence. Further submissions were made by counsel concerning the Crown application under s.42 Evidence Act 1995 with respect to C2.
5. Following those submissions, I gave short reasons for granting the Crown s.42 application, and foreshadowed that more detailed reasons would be provided at a later time. The short reasons concerning C2 were as follows (T168-169): "At the conclusion of submissions yesterday on the Crown's application under section 42 of the Evidence Act 1995 that leading questions not be allowed on four topics with respect to the witnesses [C1] and [C2], I expressed at pages 111 to 113 of the transcript a ruling with an indication that I would provide more elaborate reasons for this ruling at a later time. I propose to adopt the same approach as that taken yesterday and as expressed at that point in transcript with respect to the witness [C2] who is now giving evidence. It is not necessary to repeat all that was said in those pages of the transcript, but it can be taken that that will be the approach which I take. I note that in relation to the evidence yesterday of [C1] the point was not reached where Mr Bouveng sought to ask leading questions and thus the second phase, if I could use that term, did not arise. If the second phase was going to arise in the case of [C2], then it would be appropriate that counsel indicate that there is a legal issue, I will invite the jury to withdraw, I hope for a very short period, just to confirm the parameters of what was to happen next. Whether that arises or not depends obviously upon the course of cross examination which will be undertaken up to that point. I express those short reasons for a ruling."
6. Cross-examination of C2 was brief, with leave under the second phase not being sought (T177-185).
7. This judgment contains my detailed reasons for the rulings made on 10, 16 and 17 September 2015.

Relevant Statutory Provisions

1. Section 37 Evidence Act 1995 concerns the use of leading questions in examination-in-chief. The section provides: "37 Leading questions (1) A leading question must not be put to a witness in examination in chief or in re-examination unless: (a) the court gives leave, or (b) the question relates to a matter introductory to the witness's evidence, or (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor, or (d) the question relates to a matter that is not in dispute, or (e) if the witness has specialised knowledge based on the witness's training, study or experience - the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given. (2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties. (3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker."
2. Section 42 is concerned with the restriction on the use of leading questions in cross-examination. Section 42 provides: "42 Leading questions (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and (b) the witness has an interest consistent with an interest of the cross-examiner, and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court's power to control leading questions."
3. The term "leading question" is defined in the Dictionary to the Act in the following way: "leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked."
4. The term "examination in chief" lies within clause 2 of Part 2 of the Dictionary to the Act: "(1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination. (2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (3) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. (4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party."
5. To the extent that s.37(1)(a) involves a grant of leave by the Court, s.192 is pertinent. That provision states: "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."

The Objection to Leading Questions in the Recorded Interviews of C1 and C2 and the Crown's Application for Leave Under s.37 With Respect to Any Leading Questions

1. Counsel for the Accused persons objected to the following parts of the recorded interview with C1, upon the basis that leading questions were asked in examination-in-chief (Exhibit PT11): "Q389 [Investigating official] Well, I heard that it means, um, that it's something that some young girls have, and that it's like a type of cutting to the private part. A [C1]. Yeah, it is. Q390 It is. How do you know that? A. Because it's happened to me. Q391 Because it's happened to you. When did it happen to you? A. When I was the age of seven. … Q603 Yeah, ah, just one question. Are you able to explain exactly what happens --- A. Nuh-uh. Q604 --- in your words. A. No. Well, they give um, a little cut there. No, not very much, because I'm not used to talking about it either, because, um, my mum tells me not to go around telling everyone that much. That's all. Q605 OK. When, when you say, um, they, they give a little cut there, where do, what do you mean by there? A. In your private part."
2. Objection was taken upon the same basis to part of the recorded interview with C2 (Exhibit PT12): "Q194 [Investigating official] We heard that, that that word [khatna] means something that some young girls have, O.K., where they have a cut to their private parts. Tell me what you know about that? A [C2]. I don't know. Q195 You don't know or you don't want to tell me? A. I don't know what that is. Q196 Pardon? A. I don't know what that is. Q197 You don't know what that is. We heard that you had a cut on your private parts. Is that true? A. Yes. Q198 Yeah. When was that? A. I don't know. Q199 You don't know when it was. Where were you when that happened? A. Home. Q200 At home. And who else was at home? A. I don't know."
3. It was submitted that Q389 (in the case of C1) and Q194 and Q197 (in the case of C2), in particular, were leading questions, with a flow-on effect into subsequent questions so as to render them leading questions as well.
4. It was submitted for the Accused persons that the Crown should not be granted leave under s.37(1)(a) to adduce this evidence by way of leading questions. By reference to s.192 of the Act, it was submitted that: 1. the granting of leave to the Crown to "ask" these questions in the recorded interviews of C1 and C2, instead of the questions and answers being deleted from the interviews and being asked in a permissible method by the Crown, will only shorten the length of the hearing by a small extent: s.192(2)(a); 2. a grant of leave as sought by the Crown would be unfair to both the witnesses and to each of the Accused persons where the questions suggested that the gravamen of the offence in s.45 Crimes Act 1900 had occurred to C1 and C2: s.192(2)(b) - reference was made to the ages of C1 (eight years old) and C2 (six years old with a mild intellectual disability) at the time of each interview, with reference also being made to the reports of psychologists, Dr Susan Pulman, Dr Gary Banks and Ms Alison O'Neill (Exhibit PT13), being supportive of the use of non-leading questions in the interviewing of children: s.192(2)(b); 3. the questions asked related to the ultimate (and only) facts in issue in the trial, namely what was the nature of the procedure performed on C1 and C2 by KM - it was submitted that the evidence can easily be adduced in a permissible fashion by the use of non-leading questions by the Crown: s.192(2)(c).
5. The Crown submitted that the questions objected to, when viewed in context, were not leading questions (Pretrial MFI41). Should the Court hold that any of the questions were leading questions, the Crown submitted that leave should be granted under s.37(1)(a) for that evidence to form part of the examination-in-chief of each of C1 and C2.
6. The Crown referred to parts of the interviews of C1 and C2, before and after the questions which drew the objection. It was submitted that the impugned questions must be seen in context in each case, with that process supporting a grant of leave under s.37(1)(a) with respect to each of C1 and C2.
7. For the purposes of s.192(2), the Crown submitted that the evidence was important and that the subject matter of the questions concerning intimate parts of each child was relevant. It was emphasised that the proceedings were against the mother of C1 and C2, with whom they both lived.
8. The Crown submitted that it would not be unfair to a party or either witness to grant leave under s.37(1)(a).

Reasons for s.37 Ruling

1. It may be taken that s.37 Evidence Act 1995 applies to questions asked in a recorded interview which is to be tendered as part of a child's evidence-in-chief by way of ss.306U and 306V Criminal Procedure Act 1986. Although some rules of evidence are relaxed by s.306V(1), s.306V(4) makes clear that the Court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under these provisions. It is notable, however, that such objections do not relate to a question asked in Court by counsel. Those circumstances attract an objection, followed by submissions and a ruling. In that context, of course, an application for leave under s.37 may be considered in the dynamic context of the trial itself while the witness is giving oral evidence.
2. Here, the questions under challenge were asked in the course of an investigatory interview undertaken with each of C1 and C2 more than three years before. Because of the provisions contained in ss.306U and 306V Criminal Procedure Act 1986, the questions and answers in the recorded interviews may become part of the evidence-in-chief of the relevant vulnerable person.
3. This does not mean that the prohibition contained in the Evidence Act 1995, upon the use of leading questions in examination-in-chief, does not apply. Clearly, the provision has application as the contents of the interview become part of the evidence-in-chief of the witness. Other bases of objection might also arise in a particular case. In this case, the only objection taken to the questions referred to at [19] and [20] above was made upon the basis of the use of leading questions.
4. I am satisfied that Q/A389 (in the case of C1) and Q/A194 and 197 (in the case of C2) constitute leading questions within the definition of that term in the Evidence Act 1995.
5. I am not so satisfied with respect to the balance of the questions which are objected to upon the same basis. The other questions under challenge do not, in my view, fall within the terms of the statutory definition.
6. In the case of C1 (Q/A390-391; Q/A603-605), the questions are not leading and it could not be fairly concluded that they are somehow tainted by a type of flow-on effect. Both the words used in questions and answers, and the appearance of C1 in the video-recorded interview, support such a characterisation.
7. A similar conclusion should be reached concerning C2, although she was more tentative in her appearance in the recorded interview.
8. The question then arises as to whether the Crown should have leave under s.37(1)(a) of the Act to (in effect, retrospectively) adduce such evidence by means of a leading question. It has been observed that a ruling concerning the use of leading questions involves the exercise of discretion in the particular case by the trial Judge: Heydon, "Cross on Evidence", 10th Australian edition, paragraphs [17,155]-[17,160].
9. In exercising discretion under s.37(1)(a), in the context of a s.306U recorded interview, it is important to bear in mind the nature of the interview being undertaken, the age of the person being interviewed and to consider the particular question or questions under objection against the background of the interview in its entirety. It should be kept in mind that the interview is part of an investigatory process, although its potential use under ss.306U and 306V is also important.
10. Likewise, it is most important that the interview was video recorded, so that the jury was in a position to see and hear the conversation, and to form a view as to the significance (if any) of any leading question.
11. Having assessed the entirety of the recorded interview with C1, I was satisfied that leave ought be granted to the Crown to adduce evidence in the one leading question which I have identified. At the time of the interview, C1 was about nine years old. The question under challenge lay in the midst of a lengthy recorded conversation with the investigating officials.
12. Fairly read, the recorded conversation involved a developing willingness of C1 to open up to the questioners in a number of respects. The interview took place against the background that C1 had been told by her mother not to discuss the topic of what had happened on the occasion of the alleged circumcision. The interview discloses an increasing willingness of C1 to talk to the investigators, mentioning at one stage that she (C1) felt "safe" (Q/A223). Although the interview progressed some way without C1 readily being prepared to discuss the event under consideration, she did so in a convincing and plausible fashion after the questions under objection. Nearly all the factual matters referred to by her were not disputed.
13. It was also relevant to the exercise of discretion, for the purpose of ss.37 and 192, that further evidence to be adduced by the Crown involved conversations with others which referred to the fact that C1 had mentioned that she had been "cut".
14. In my view, the particular vice which has been identified with the use of leading questions does not arise in any realistic way in this case. Further, to excise a small part of a lengthy interview, and to proceed with the Crown having to ask a non-leading question on one topic out of a long interview, would involve an unrealistic process which would not serve the purpose of adducing relevant and meaningful evidence, in particular from a child by that time aged some 12 years. As observed earlier, the jury was in a position to form its own view concerning the significance (if any) of the leading question, given that a contemporaneous video recording was relied upon by the Crown.
15. I was satisfied that it would not be unfair to any party or the witness to grant leave: s.192(2)(b). The evidence was important to the Crown case: s.192(2)(c). The refusal of leave would likely have extended the hearing: s.192(2)(a).
16. For these reasons, I determined that the use of the leading question (identified above at [30]) ought be permitted by way of a grant of leave under s.37(1)(a) Evidence Act 1995 with respect to C1.
17. In considering the leave issue with respect to C2, I had regard, as well, to the fact that she volunteered later in the interview that she felt "hurting … in my bottom" (Q/A232-233). The jury could assess this, as well, in considering the earlier reference to being "cut".
18. I was satisfied, having regard to ss.37 and 192, that leave ought be granted to the Crown to adduce this evidence from C2. My reasoning for this conclusion was similar to that expressed with respect to C1. This was an objection to certain questions in the course of an investigatory interview with a child, then aged six years. The jury could see and hear the interview, and form their own view concerning the role of the leading questions in the course of a long interview.
19. In reaching these conclusions concerning C1 and C2, I had regard to the evidence of psychologists to which the Court was taken. I considered the opinions of the psychologists having taken into account the entirety of the interview with each child independently.

Crown Objection Under s.42 Evidence 1995 to the Use of Leading Questions in Certain Areas in the Cross-Examination of C1 and C2

1. The Crown submitted that there ought be a limit upon the use of leading questions in the cross-examination of C1 and C2 with respect to four identified topics: 1. what happened to each of them before, during and after the alleged female genital mutilation ("FGM") procedure; 2. the understanding of each child of the term "khatna"; 3. the description of each child as to what she felt during, before and after the procedure; and 4. any conversation that each child may have had with third parties (especially family members) about the FGM procedure.
2. The Crown submitted that there was some evidence that A1, the father of C1 and C2, had sought to influence the children (and, in particular, C1) on the afternoon of the interviews with the children on 29 August 2012. In this respect, the Court was taken to a conversation in a motor vehicle between A1 and C1 on that afternoon which was recorded by way of surveillance device. The Crown relied, as well, upon a recorded conversation between the mother, A2, and C1 and C2 where she discussed what had been asked of each of them in the interview earlier that day, and chided them for discussing what had happened (Exhibit AD, page 8).
3. The Crown relied, as well, upon s.42(2)(d), noting the age of each child and some evidence of mild intellectual disability on the part of C2.
4. The Crown submitted that the Court should be satisfied that the facts concerned would be better ascertained if leading questions were not used on these topics during cross-examination of C1 and C2 by counsel for the Accused persons.
5. Counsel for the Accused persons opposed the making of any order s.42 restricting their capacity to use leading questions in cross-examination. It was submitted that a proper basis had not been demonstrated for such an order.

Reasons for s.42 Ruling

1. In determining this question, I had regard, in particular, to the age of C1 and C2 and the material before the Court concerning the mild intellectual disability of C2: s.42(2)(d).
2. In circumstances where the evidence-in-chief of each of C1 and C2 was to be constituted primarily by their recorded interviews made some three years before, I considered that this was a case where the use of s.42 was appropriate. In this respect, it was relevant that C1 and C2 were living with their parents, A1 and A2, so that additional care was warranted in the ascertainment of facts by means of questions asked in Court on behalf of the Accused persons.
3. It was significant that A2, the mother, had spoken to each of C1 and C2 on the afternoon of 29 August 2012 and said the following concerning the interviews (Exhibit AD, page 5): "You told them everything. I told you not to say, any one. I told you not to say. Now we are in trouble because of this. I told you this is a big secret. This is what she came to find out. Now we are in trouble because of that. We told you my child this is a big secret, never tell anyone."
4. There was evidence, as well, that A2, her husband, A1, and KM had advanced or embraced a false story at different times, in the form of the "Africa checking story".
5. Evidence of this type supported a conclusion that "the facts concerned would be better ascertained if leading questions were not used" (at least in the first instance) in cross-examination.
6. There was a live question as to whether C1 and C2 would fall within s.42(2)(b) and (c), with the use of non-leading questions allowing the Court to consider these aspects further.
7. As was pointed out by Mr Bouveng, counsel for KM, it remained important that he have the ability, depending upon the answers given to him by each of C1 and C2 in answer to non-leading questions, to challenge each witness by use of leading questions so that he could contradict their accounts in a manner that allowed him to put his client's version before the witness, in accordance with the principle in Browne v Dunn (1893) 6 R 67.
8. As indicated in the extracts containing my rulings at [9] and [11] above, I considered that a two-phase approach was appropriate given the subject matter of the questions and the particular factors existing in this case, where each child witness had been living since August 2012 with their parents, one of whom was on trial for the alleged offences said to have been committed against the girls.
9. I was satisfied, for the purpose of s.42(3), that the facts concerned would be better ascertained if leading questions were not used in the cross-examination of each of C1 and C2 initially. Proceeding in this way allowed counsel for the Accused persons to ask questions which elicited a response to relevant matters, with the capacity to revisit the s.42 ruling by way of a second phase of questioning (using leading questions) if the Court considered that appropriate.
10. In the event, neither Mr Bouveng nor Mr Sutherland SC asked questions moving beyond the first phase allowed in my ruling. Neither considered it necessary, in the circumstances of the evidence of each of C1 and C2, to seek to cross-examine by way of leading questions so as to confront each witness with a suggested contrary account.
11. I record my view that the practical outcome of the ruling made by me under s.42, with respect to C1 and C2, meant that facts were better ascertained by counsel for the Accused persons using non-leading questions. The fact that defence counsel did not feel it necessary to revisit the s.42 ruling, by way of a second-phase argument, confirmed my conclusion that the approach permitted counsel to question each witness in a manner that was consistent with a fair opportunity to adduce evidence from each child.

Conclusion

1. It was for the reasons here expressed with respect to the ss.37 and 42 issues, that I made the rulings on those topics set out earlier in this judgment.

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