R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306

R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306

C2 is competent to give sworn evidence under s.13 Evidence Act 1995. The likelihood of psychological harm to C1 and C2 or their relationship with A2 does not outweigh the desirability of their evidence under s.18 Evidence Act 1995. Both girls are compellable witnesses at trial.

Parties
Prosecution: Regina (Crown); Accused: A2; Accused: KM; Accused: Shabbir Mohammedbhai Vaziri; Witness: C1; Witness: C2
Jurisdiction
Australia
Judgment Date
08 September 2015
Procedural Posture
Criminal / Pre Trial Ruling on Witness Competence and Compellability
Outcome
application by C1 and C2 under s.18 Evidence Act 1995 declined; C1 and C2 remain compellable witnesses at trial
Legal Topics
Competence and Compellability of Witnesses, Female Genital Mutilation, Evidence Act Applications
Criminal Law Competence and Compellability of Witnesses Female Genital Mutilation Evidence Act Applications

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Parties

Regina (Crown)

Prosecution

A2

Accused

KM

Accused

Shabbir Mohammedbhai Vaziri

Accused

C1

Witness

C2

Witness

Procedural Posture

Criminal / Pre Trial Ruling on Witness Competence and Compellability

Legal Issues

  1. 1 Is C2 competent to give sworn evidence under s.13 Evidence Act 1995?
  2. 2 Are C1 and C2 compellable to give evidence against their mother (A2) under s.18 Evidence Act 1995?
  3. 3 If not compellable, can their recorded interviews be admitted under s.65 Evidence Act 1995?

Ratio Decidendi

C2 is competent to give sworn evidence under s.13 Evidence Act 1995. The likelihood of psychological harm to C1 and C2 or their relationship with A2 does not outweigh the desirability of their evidence under s.18 Evidence Act 1995. Both girls are compellable witnesses at trial.

Court Disposition

application by C1 and C2 under s.18 Evidence Act 1995 declined; C1 and C2 remain compellable witnesses at trial

Orders

  • C2 is competent to give sworn evidence at trial of the accused persons (for purpose of s.13 Evidence Act 1995).
  • Objection under s.18 Evidence Act 1995 by C1 and C2 to giving evidence at trial of accused overruled.