The Queen v A2; The Queen v Magennis; The Queen v Vaziri

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Keane J.,Bell,Gageler JJ.,Edelman J.
• Judgment Date: 16 October 2019
• Neutral Citation: [2019] HCA 35
• Docket Number: S43/2019, S44/2019 & S45/2019
• Court: High Court

The Queen

Appellant

and

A2

Respondent

The Queen

Appellant

and

Kubra Magennis

Respondent

The Queen

Appellant

and

Shabbir Mohammedbhai Vaziri

Respondent

[2019] HCA 35

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

S43/2019, S44/2019 & S45/2019

HIGH COURT OF AUSTRALIA

Statutes — Construction — Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who “excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person” is liable to imprisonment — Where two respondents charged with having “mutilated the clitoris” of each of complainants — Where other respondent charged with assisting those respondents following commission of those offences — Where defence case that procedure performed on complainants merely ritualistic — Where trial judge directed jury that word “mutilate” in context of female genital mutilation means “to injure to any extent” — Where trial judge directed jury that “clitoris” includes “clitoral hood or prepuce” — Whether “otherwise mutilates” should be given ordinary meaning or take account of context of female genital mutilation — Whether “clitoris” includes clitoral hood or prepuce — Whether trial judge misdirected jury as to meaning of “mutilate” and “clitoris”.

Appeals — Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal against conviction allowed, subject to special provisions of Act, Court of Criminal Appeal “shall … quash the conviction and direct a judgment and verdict of acquittal to be entered” — Where s 8(1) provides that on appeal against conviction, Court of Criminal Appeal may order new trial if it considers that miscarriage of justice has occurred and it can be more adequately remedied by order for new trial than any other order — Where Court of Criminal Appeal allowed appeals against convictions based on construction of s 45(1)(a) of Crimes Act and on other grounds including that verdicts unreasonable or unsupported by evidence — Whether open to Court to quash conviction and decline to make further order — Whether sufficient evidence to warrant order for new trial — Whether matter should be remitted to Court of Criminal Appeal for redetermination of ground alleging that verdicts unreasonable or unsupported by evidence.

Words and phrases — “child abuse”, “clitoris”, “context”, “de minimis injury”, “female genital mutilation”, “injury”, “khatna”, “mischief”, “misdirected the jury”, “mutilation”, “offence provisions”, “otherwise mutilates”, “purposive construction”, “ritualised circumcision”, “sufficient evidence”, “tissue damage”, “umbrella term”.

Crimes Act 1900 (NSW), s 45.

Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW).

Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1).

Representation

D T Kell SC with E S Jones for the appellant in each matter (instructed by Solicitor for Public Prosecutions (NSW))

H K Dhanji SC with D R Randle for the respondents in S43/2019 and S45/2019 (instructed by Armstrong Legal)

T A Game SC with G E L Huxley for the respondent in S44/2019 (instructed by Armstrong Legal)

ORDER

Matter No S43/2019

• 1. Appeal allowed.

• 2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

• 3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

Matter No S44/2019

• 1. Appeal allowed.

• 2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

• 3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

Matter No S45/2019

• 1. Appeal allowed.

• 2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

• 3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

1 Kiefel CJ AND Keane J. Section 45 of the Crimes Act 1900 (NSW) came into effect on 1 May 1995. It was introduced by the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW). The section is headed “Prohibition of female genital mutilation”. At the relevant time, s 45(1) was in these terms:

“A person who:

• (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

• (b) aids, abets, counsels or procures a person to perform any of those acts on another person,

is liable to imprisonment for 7 years.”

2 The respondents A2 and Ms Kubra Magennis were charged upon indictment with having “mutilated the clitoris” of each of C1 and C2 on separate occasions. They were also charged with an alternative count of assault occasioning actual bodily harm 1. The respondent Mr Shabbir Mohammedbhai Vaziri was charged with assisting A2 and Ms Magennis following the commission of those offences 2.

3 A2 and her husband, A1, are members of the Dawoodi Bohra community. The members of this community adhere to Shia Islam. Mr Vaziri is the head cleric and spiritual leader of the community in Sydney. Ms Magennis is a member of the community, and a trained nurse and midwife. The Crown alleged at trial that she performed the practice in question for members of the community.

4 The Crown case was that A2 (the mother of C1 and C2) and Ms Magennis were parties to a joint criminal enterprise to perform a ceremony called “khatna”, which involves causing injury to a young girl's clitoris by cutting or nicking it. The procedure was said to be intended to suppress the development of a girl's sexuality as she attains puberty. The Crown did not suggest that the procedure has a basis in religion but rather suggested that it is cultural in nature.

5 This procedure was allegedly conducted on each of C1 and C2 in the presence of A2 and other family members. With respect to C1, the procedure was allegedly conducted at the home of A1‘s aunt when C1 was aged between six

and eight years of age. C2, the younger of the sisters, was six years old when she was later allegedly subjected to the same treatment

6 The respondents did not dispute that there had been a procedure performed by Ms Magennis on C1 and C2. The defence case was that it was merely ritualistic and did not involve any nick or cut to the clitoris of either complainant. To rebut this aspect of the defence case, the Crown relied on: the accounts given by C1 and C2, in their recorded interviews with police, of feeling pain; expert evidence tendered in relation to the practice of khatna within the community; and conversations between A2, A1 and others, which were intercepted or recorded via listening devices, as to what was involved in the practice.

7 The respondents also argued that even if there was a cut or a nick (the latter presumably being a lesser version of the former) to the clitoris of either complainant, that would not amount to “mutilation” within the meaning of s 45(1)(a). The trial judge in the Supreme Court, Johnson J, made a pre-trial ruling concerning the words “otherwise mutilates” in s 45(1)(a). His Honour subsequently directed the jury in accordance with that ruling in terms that:

“The word ‘mutilate’ in the context of female genital mutilation means to injure to any extent.”

8 His Honour then went on regarding the Crown case to direct that:

“[i]t is not necessary for the Crown to establish that serious injury resulted. In the context of this trial, a nick or cut is capable of constituting mutilation for the purpose of this alleged offence.”

9 A written direction in the same terms was provided to the jury.

10 A2 and Ms Magennis were each found guilty by the jury of two counts of female genital mutilation contrary to s 45(1)(a) and Mr Vaziri was found guilty of two counts of being an accessory to those offences. Johnson J sentenced each of the respondents to an aggregate of 15 months' imprisonment with a non-parole period of 11 months and ordered that the sentences imposed upon A2 and Ms Magennis be served by way of home detention. Mr Vaziri was required to serve his non-parole period by way of full-time imprisonment.

11 On appeal, the Court of Criminal Appeal (Hoeben CJ at CL, Ward JA and Adams J) quashed the respondents' convictions and ordered verdicts of acquittal on all counts 3. Their Honours concluded that the trial judge had misdirected the

jury as to the meaning of “mutilates” 4 and that there had been a miscarriage of justice due to fresh evidence 5. In their Honours' view, the word “mutilates” should be given its ordinary meaning for the purposes of s 45(1)(a). That meaning “connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion” 6

12 Special leave to appeal was granted by Bell, Gageler and Edelman JJ on two grounds. The first is a matter of general importance respecting the operation of s 45(1)(a). It is that the Court of Criminal Appeal erred in construing “otherwise mutilates” as it did. The second relates to the meaning the Court gave to the term “clitoris”, namely that it did not include the clitoral hood or prepuce.

“Otherwise mutilates”

The reasoning of the courts below

13 The essential difference in approach to the meaning of the term “otherwise mutilates” in s 45(1)(a) as between the trial judge and the Court of Criminal Appeal is that, whilst the Court of Criminal Appeal applied the grammatical or literal meaning of the word “mutilates”, the trial judge considered that the meaning to be given to that word should take account of the context in which the word is used. In his Honour's view, the word should be understood as part of the broader umbrella term, “female genital mutilation” (or “FGM”) 7...