R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491

R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491

Leave was granted to the Crown to cross-examine witness A5 under s.38(1)(a), (b), and (c) Evidence Act 1995, as the witness gave unfavourable and inconsistent evidence in relation to matters directly relevant to the issues at trial, including the use and meaning of the terms 'khatna' and 'checkup', and her knowledge of KM's role. The probative value of her further cross-examination outweighs any potential unfair prejudice under s.137, and the discretionary factors do not justify refusing leave.

Jurisdiction
Australia
Judgment Date
09 October 2015
Procedural Posture
Criminal / Procedural Ruling on S.38 Evidence Act Application
Outcome
Leave granted to Crown to cross-examine A5 under s.38 Evidence Act 1995
Legal Topics
['cross Examination of Crown Witness' 'leave Under S.38 Evidence Act 1995' 'prior Inconsistent Statements' 'unfavourable Witness' 'female Genital Mutilation']
['criminal Law' 'evidence'] ['cross Examination of Crown Witness' 'leave Under S.38 Evidence Act 1995' 'prior Inconsistent Statements' 'unfavourable Witness' 'female Genital Mutilation']

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Procedural Posture

Criminal / Procedural Ruling on S.38 Evidence Act Application

Legal Issues

  1. 1 ['Whether the Crown should be granted leave to cross-examine its own witness (A5) under s.38 Evidence Act 1995' "Whether witness's evidence is unfavourable, inconsistent, or lacking genuine attempt as required by s.38(1)" 'Whether discretionary factors under s.192 and unfair prejudice under s.137 Evidence Act 1995 weigh against granting leave']

Ratio Decidendi

Leave was granted to the Crown to cross-examine witness A5 under s.38(1)(a), (b), and (c) Evidence Act 1995, as the witness gave unfavourable and inconsistent evidence in relation to matters directly relevant to the issues at trial, including the use and meaning of the terms 'khatna' and 'checkup', and her knowledge of KM's role. The probative value of her further cross-examination outweighs any potential unfair prejudice under s.137, and the discretionary factors do not justify refusing leave.

Court Disposition

Leave granted to Crown to cross-examine A5 under s.38 Evidence Act 1995

Orders

  • ["Leave granted under s.38 Evidence Act 1995 for the Crown to cross-examine witness A5 on: (a) events in the bedroom when C1 and C2 were lying on beds; (b) knowledge and use of 'khatna'/'khatanat' concerning girls; (c) evidence regarding use of 'checkup' and KM's role."]