A2 v R; Magennis v R; Vaziri v R - [2018] NSWCCA 174 - NSWCCA 2017 case summary — Zoe

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A2 v R; Magennis v R; Vaziri v R

[2018] NSWCCA 174

Court of Criminal Appeal (NSW)|2017-10-25|Before: Hoeben CJ, Ward JA, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-10-25

Before

Hoeben CJ, Ward JA, Adams J

Source

Original judgment source is linked above.

Judgment (206 paragraphs)

[1]

Introduction [1] Non-publication order [10] Background [11] Summary of events [19] Initial disclosures at JIRT interviews [19] C1's interview [21] C2's interview [36] Parents are called to attend interview [45] 2:49pm 29 August 2012 - conversation in car when children collected from school (Ex AC (disc)) (Ex AD (transcript)) (admitted only against A2) [46] 3:04pm 29 August 2012 - telephone conversation between A1 and Vaziri (Ex AA tab 3) (admitted only against Vaziri) [50] 3:20pm 29 August 2012 - telephone conversation between A1 and Magennis (Ex AA tab 4) (admitted only against Magennis) [56] 3:21pm 29 August 2012 - conversation between A1 and complainants and then between A1 and A2, in car on way to JIRT office (Ex AE (disc)) (Ex AF (transcript)) (admitted only against A2) [61] 3:56pm 29 August 2012 - conversations in JIRT office waiting room (Ex AG (disc)) (Ex AH (transcript)) (admitted only against A2); 4:08pm 29 August 2012 - telephone conversation between A2 and A2's mother (Ex AA tab 6) (admitted only against A2) [68] 4:08pm 29 August 2012 - telephone conversation between Magennis and Sheik Zafar (Ex AA tab 5) (admitted only against Magennis) [74] A2 interview with police on 29 August 2012 [76] Communications after the JIRT interview with A1 and A2 [77] 5:50pm 29 August 2012 - telephone conversation between A2 and Magennis (Ex AA tab 7) (admitted only against A2 and Magennis) [77] 6:03pm 29 August 2012 - telephone conversation between A2 and her mother/sister (Ex AA tab 8) (admitted only against A2 and Vaziri) [82] 6:18pm 29 August 2012 - telephone conversation between Vaziri and A1 (Ex AA tab 9) (admitted only against Vaziri) [85] 6:51pm 29 August 2012 - text message from A2 to India (Ex AA tab 10) (admitted only against A2) [86] 7:35pm, 8:25pm, and 8:48pm 29 August 2012 - telephone conversations between Magennis and her daughter Fatima (Ex AA tabs 11, 12, 14) (admitted only against Magennis) [87] 30 August 2012 telephone conversations [91] 8:21am 30 August 2012 - telephone conversation between A2 and A3 (Ex AA tab 15) (admitted only against A2) [91] 8:26am 30 August 2012 - telephone conversation between A2 and A1 (Ex AA tab 16) (admitted only against A2) [95] 8:42am 30 August 2012 - conversation in car between A2 and complainants (Ex AI (disc)) (Ex AJ (transcript)) (admitted only against A2) [96] 4:34pm 30 August 2012 - telephone conversation between Vaziri and A1 (Ex AA tab 18) (admitted only against Vaziri) [97] 5:13pm 30 August 2012 - telephone conversation between Vaziri and Magennis (Ex AA tab 19) (admitted only against Vaziri and Magennis) [98] 8:19pm 30 August 2012 - telephone conversation between A2 and Magennis (Ex AA tab 20) (admitted only against A2 and Magennis) [99] 9:31pm 30 August 2012 - telephone conversation between A2 and her mother (Ex AA tab 24) (admitted only against A2) [109] Subsequent communications [110] 6:17pm 1 September 2012 - telephone conversation between Dawat office in Mumbai and Vaziri (Ex AA tab 26) (admitted only against Vaziri) [110] 6:17am 2 September 2012 - telephone conversation between A2 and her father (Ex AA tab 27) (admitted only against A2) [112] 11:58am 3 September 2012 - text message A3 to A2 (Ex AA tab 28) (admitted only against A2) [113] 3 September 2012 - medical examination of C1 and C2 [114] Conversations on 3-4 September 2012 before and after medical examinations [116] 2:23pm 3 September 2012 - telephone conversation between A2 and A3 (Ex AA tab 29) (admitted against A2) [116] 4:20pm 3 September 2012 - conversation between Vaziri and Hussein Karimjee (Ex AA tab 30) (admitted only against Vaziri) [117] 4:37pm 3 September 2012 - telephone conversation between Magennis and her husband (Ex AA tab 31) (admitted only against Magennis) [123] 6:38pm 3 September 2012 - telephone conversation between Magennis and Fatima (Ex AA tab 32) (admitted only against Magennis) [124] 11:23am 4 September 2012 - telephone conversation between A2 and Magennis (Ex AA tab 34) (admitted only against A2 and Magennis) [125] 2:20pm 4 September 2012 - telephone conversation between Vaziri and Magennis (Ex AA tab 33) (admitted only against Vaziri and Magennis) [126] Conversations on 5-6 September 2012 during course of police investigations [127] 1:21pm 5 September 2012 - conversation between Vaziri and Sheikh Iqbal (Ex AA tab 35) (admitted only against Vaziri) [127] 3:51pm 6 September 2012 - conversation between Vaziri and Karimjee (Ex AA tab 36) (admitted only against Vaziri) [128] 7 September 2012 - A1 police interview [129] 7 September 2012 - A2's ERISP with police [132] Conversations from 10 September 2012 during course of police investigations [137] 9:36am 10 September 2012 - text message A1 to A2 (Ex AA tab 37) (admitted only against A2) [137] 9:38am 10 September 2012 - telephone conversation between A2 and A3 (Ex AA tab 38) (admitted against A2) [138] 4:03pm 10 September 2012 - conversation between Vaziri and Karimjee (Ex AA tab 39) (admitted only against Vaziri) [141] 5:37pm 10 September 2012 - conversation between Vaziri and Karimjee (Ex AA tab 40) (admitted only against Vaziri) [142] 6:09pm 10 September 2012 - Vaziri telephone conversation (Ex AA tab 41) (admitted only against Vaziri) [143] 6:27pm 10 September 2012 - A2 message to India (Ex AA tab 42) (admitted only against A2) [144] 6:42pm 10 September 2012 - Vaziri telephone conversation (Ex AA tab 43) (admitted only against Vaziri) [145] 7:10pm 10 September 2012 - telephone conversation between Vaziri and Karimjee (Ex AA tab 44) (admitted only against Vaziri) [146] 8:38pm 10 September 2012 - conversation between Magennis and A1 (Ex AA tab 45) (admitted only against Magennis) [147] 8:57pm 10 September 2012 - conversation between Vaziri and Karimjee (Ex AA Tab 46) (admitted only against Vaziri) [150] 9:50pm 10 September 2012 - conversation between Vaziri and Karimjee (Ex AA tab 47) (admitted only against Vaziri) [151] 7:02am 11 September 2012 - telephone conversation between A2 and her father (Ex AA tab 48) (admitted only against A2) [152] 11:51am 11 September 2012 - conversation between Vaziri and Karimjee (Ex AA tab 49) (admitted only against Vaziri) [155] 13 September 2012 - Vaziri's ERISP with police [156] 13 September 2012 - Magennis is arrested [161] Subsequent communications [162] 2:53pm 13 September 2012 - conversation between Magennis and A1 (Ex AA tab 50) (admitted only against Magennis) [162] 2:40pm 27 September 2012 - telephone conversation between A2 and her mother (Ex AA tab 53) (admitted only against A2) [163] 6:17pm 2 October 2012 - message from A2's phone (Ex AA tab 54) (admitted only against A2) [165] Trial [166] Complainants' evidence [168] C1 [168] C2 [170] Family witnesses' evidence [175] A1 [175] A3 [187] A5 [194] Medical evidence [207] Dr Susan Marks [208] Professor Gregory Jenkins [230] Professor Sonia Grover [237] Evidence of interpreters of Gujarati and Lisan-al-Dawat languages [248] Dipakkumar Bhatt [249] Siddique Panwala [253] Evidence of Dr X [256] Evidence in relation to FGM community education program [300] Evidence of Magennis [304] Grounds of Appeal [313] Applications for leave to adduce new evidence; Ground 11 - miscarriage of justice occasioned on account of new evidence [316] Appellants' application for leave to adduce new evidence [316] Crown's objections to the grant of leave to adduce new evidence [320] Crown's first objection: evidence not "fresh" [321] Crown's second objection: evidence not relevant [325] Determination of application for leave to adduce new evidence [330] Crown's application for leave to adduce new evidence [333] Ground 11 - submissions of the parties [338] Determination as to ground 11 [358] Ground 1 - statutory construction [360] (i) Meaning of "otherwise mutilates" in s 45(1)(a) of the Crimes Act [361] Relevant statutory provision [361] Pre-trial ruling - Judgment No 2 [362] Appellants' submissions [399] Crown submissions [424] (ii) Summing up as to meaning of "mutilates" [446] (iii)-(iv) Definition of clitoris/summing up [448] Appellants' submissions [458] Crown submissions [461] Determination as to ground 1 [463] Relevant principles [463] Categories of material to which the trial judge had regard [478] Conclusion on issues (i) and (ii) in relation to "mutilates" [521] Final observation on construction of "mutilates" [523] Conclusion on issues (iii) and (iv) in relation to "clitoris" [525] Ground 2 - unreasonable verdicts [529] Legal principles [531] Appellants' submissions [536] Crown submissions [559] Determination as to ground 2 [586] Ground 3 - Dr X [640] Judgment No 3 [643] Challenges to the trial judge's rulings in relation to the evidence of Dr X [650] Relevance objection [651] Crown submissions as to relevance objection [658] Determination as to relevance objection [670] Opinion evidence objection [675] Particular opinions [694] Crown submissions as to opinion evidence objection [699] Determination as to opinion evidence objection [709] Discretionary exclusion [715] Crown submissions as to discretionary exclusion [718] Determination as to ground 3 [724] Ground 4 - evidence of C2 [726] (a) C2's competence to give evidence [727] C2's interview in 2012 [731] Expert evidence [739] Trial judge's examination of C2 on the competence hearing [755] Trial judge's findings - C2's competence to give sworn evidence [761] Appellants' submissions [767] Crown submissions [787] (b) Leading questions in "evidence in chief" [795] Trial judge's ruling [804] Appellants' submissions [810] Crown submissions [812] (c) Disallowance of leading questions in cross-examination of C2 [814] Trial judge's ruling [817] Appellants' submissions [825] Crown submissions [834] (d) "Interests of justice" and viewing recorded video; Miscarriage of justice [836] Appellants' submissions [836] Crown submissions [839] (e) Unreliability warning [840] Appellants' submissions [842] Crown submissions [849] Determination as to ground 4 [850] Ground 5 - consciousness of guilt directions (A2 and Magennis) [904] Appellants' submissions [909] Crown submissions [918] Determination as to ground 5 [923] Ground 6 - coincidence evidence [936] How the issue was raised at trial [937] Trial judge's ruling [941] The coincidence direction to the jury [949] Appellants' submisisons [950] Complaint as to admission of coincidence evidence [950] Complaint as to directions on coincidence evidence [968] Crown submissions [973] Admission of coincidence evidence [975] Directions on coincidence evidence [982] Determination as to ground 6 [984] Ground 7 - tendency evidence [985] How the issue was raised at trial [986] Trial judge's ruling [995] The tendency direction to the jury [996] Appellants' submissions [997] Crown submissions [1011] Determination as to ground 7 [1021] Ground 6 and ground 7(c) [1024] Grounds 7(a) and 7(b) [1041] Ground 8 - FGM community education program [1053] Trial judge's rulings [1058] Appellants' submissions [1065] Crown submissions [1071] Determination as to ground 8 [1078] Ground 9 - miscarriage of justice as a result of presentation of Crown case [1092] The Crown's description of the procedure as a "circumcision" and labelling of Magennis as the "local circumciser" [1093] Appellants' submissions [1093] Crown submissions [1097] The Crown's address on the medical evidence [1103] Appellants' submissions [1103] Crown submissions [1106] Shift in the Crown case relating to the nature of the injury [1109] Appellants' submissions [1109] Crown submissions [1111] The Crown's address on possible motive for carrying out the procedure [1115] Appellants' submissions [1115] Crown submissions [1116] The Crown's characterisation of the defence case as "bizarre" [1118] Appellants' submissions [1118] Crown submissions [1119] The Crown's address in relation to C2's evidence [1121] Appellants' submissions [1121] Crown submissions [1122] The Crown's address in relation to the FGM community education program [1123] Appellants' submissions [1123] Crown submissions [1124] Crown submission in relation to leave to proceed on ground 9 [1125] Determination as to ground 9 [1126] Ground 10 - summing up unbalanced [1138] Appellants' submissions [1139] Crown submissions [1143] Determination as to ground 10 [1165] Sentencing - Vaziri [1174] Judgment No 23 [1175] Judgment No 24 [1180] Challenge to sentence [1189] Determination as to sentencing appeal [1195] Orders [1196]

[2]

JUDGMENT

THE COURT: On 12 November 2015, following a trial in the Supreme Court at Sydney before Johnson J and a jury of eleven, A2 (the mother of the two complainants - who, when referred to individually in these reasons, will be referred to as C1 and C2) and Kubra Magennis were both found guilty of two counts of female genital mutilation contrary to s 45(1)(a) of the Crimes Act 1900 (NSW) and Shabbir Vaziri was found guilty of two counts of being an accessory to those offences.
The offences of female genital mutilation found to have been committed by A2 and Magennis related to separate ceremonies which took place involving the respective complainants, when each child was aged about seven. The Crown case was that A2 and Magennis were part of a joint criminal enterprise to perform a ceremony known as "khatna" on each of the complainants, which involved Magennis cutting (or nicking) the clitoris of each complainant in the presence of A2 and other family members. It was not the Crown case that these were religious ceremonies (although there was evidence that during the ceremonies prayers from the Koran were recited by the complainants' grandmother (A5)). Rather, it was the Crown case that the ceremonies were cultural in nature, being part of the practices followed by an ethno-religious community known as the Dawoodi Bohra community, of which each of the appellants is a member.
C1 was aged between six and eight years old when the procedure or ceremony was performed on her. C2 was six years old. Although there was some confusion, deriving from A2's statements to the police, as to the order in which the ceremonies were performed and where they were performed, C1's initial disclosure to police clearly puts her ceremony as having taken place first, which would be consistent with the age difference (about two years) between the two children; and A2's subsequent evidence as to the place where C1's ceremony was performed was consistent with C1's recollection - namely, that it occurred at the house of A1's aunt (A3) in Wollongong.
The conduct giving rise to Vaziri's accessorial liability comprised attempts by Vaziri, the head cleric and spiritual leader of the Dawoodi Bohra community in Sydney, to encourage other Dawoodi Bohra community members to present a false picture to investigators of the community's attitude towards and/or practice in relation to female genital mutilation or female circumcision (namely, to tell the police they did not believe in or practise female genital mutilation) and the concoction of a false account (the "Africa checking story" - see [5] below) directed by Vaziri to be given by A1 (A2's husband and the father of the complainants) and A2 to the police to explain any injury that might, on examination, be found to have been occasioned to the genitalia of either of the complainants as a result of the procedure carried out during the ceremonies. A1 was not present at either of the ceremonies.
The "Africa checking story" (which A1 gave to the police but which had been abandoned by the time of the trial) was that the children had travelled to Africa in late 2011 and that, on their return, A1 and A2 were concerned that they might have been subjected to female genital mutilation so they engaged Magennis, a registered nurse and midwife, to "check" their genitals. At trial, the defence case was that the ceremony performed on the complainants was only a "symbolic khatna" ceremony, with a surgical instrument being placed on the vulva (not the clitoris) of the complainants and with there being no cutting involved (that symbolic ceremony being described as the "skin sniffing the steel").
It was the Crown case, based on evidence obtained from authorised telephone intercepts and listening devices, that there was a conspiracy between A2 and Magennis to cover up their criminal actions and to avoid prosecution; that Vaziri had assisted them to do so; and that the conspiracy extended up to the sect's leaders in India and involved both A1 and the family's solicitor (Hussein Karimjee). A1 and Karimjee were both charged with perverting the course of justice in relation to their alleged involvement in the alleged conspiracy. The charges against A1 were later withdrawn. However, the charges were not withdrawn against Karimjee and, on 15 May 2017, he pleaded guilty to perverting the course of justice.
Each of the appellants was sentenced on 18 March 2016 to an aggregate sentence of 15 months' imprisonment with a non-parole period of 11 months (R v A2; R v Magennis; R v Vaziri (No. 23) [2016] NSWSC 282 ("Judgment No 23")). The matter was adjourned, and the sentences stayed, for the purpose of the appellants being assessed for their suitability for home detention.
On 9 June 2016, following a hearing on 20 May 2016 at which further material was tendered (over the objection of Vaziri) and further submissions made as to the suitability of Vaziri for home detention, Johnson J ordered that the sentences imposed on A2 and Magennis be served by way of home detention (R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 ("Judgment No 24"). However, his Honour concluded with respect to Vaziri that full-time imprisonment was the only suitable sentencing option, with the result that Vaziri's non-parole period of 11 months was to be served by way of full-time custody. By the time of the hearing of the present appeals, Vaziri was on bail (bail having been granted pending his appeal by Garling J on 13 September 2016 - R v Vaziri [2016] NSWSC 1283).
Each of A2, Magennis, and Vaziri has appealed against his or her conviction. Vaziri also seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence (on the basis that there is a justifiable sense of grievance based on the parity principle). The conviction appeals, and Vaziri's application for leave to appeal against sentence, were heard together on 23-25 October 2017.

[4]

Background

As to the appellants, as already noted, A2 is the mother of the complainants and Vaziri is the head cleric and spiritual leader of the Dawoodi Bohra community in Sydney. They were jointly represented in these proceedings by Hament Dhanji SC and David Randle of Counsel. Magennis, the registered nurse and midwife who performed the said ceremonies, was separately represented in these proceedings by Tim Game SC and Georgia Huxley of Counsel.
The complainants' family is originally from Africa, and A2's parents still live there (hence, presumably, the perceived plausibility of the Africa checking story). Prior to her arrival in Australia, Magennis had been part of a Dawoodi Bohra community in the United Kingdom and before that she lived in Africa. She is a friend or acquaintance of A5 (the complainants' grandmother).
It is not disputed that Dawoodi Bohra community followers adhere to Shi'a Islam. Nor does it appear to be in dispute that the community is an hierarchical one, its sect leaders being based in India (see the evidence of Vaziri in this respect); although the evidence of Dr X that the community is a "static" one was the subject of challenge, as was her evidence generally as to the practice of khatna in the Dawoodi Bohra community. The spiritual leader of the Dawoodi Bohra communities worldwide is variously known as Syedna, Maula, Aka Moula, Moulana, and the Dai Mutlaq. He is based in India.
The Crown case was that Dawoodi Bohra community members observe a practice of female genital mutilation known as khatna, which involves causing injury to a young girl's clitoral area by nicking or cutting the skin, and that, by damaging this area of very dense nerve tissue, the procedure is intended to suppress the development of the girl's sexuality as she attains puberty, by interfering with her ability to attain sexual pleasure. The indictment identified the clitoris as the particular part of each complainant's body that was mutilated. There is a dispute as to the meaning of "clitoris" for the purpose of s 45(1)(a) of the Crimes Act and a dispute as to whether the trial judge wrongly directed the jury in that regard (namely, as to whether "clitoris" includes the "prepuce" - i.e., the fold of skin covering the clitoris or "clitoral hood"). The alternative lesser counts in the indictment related to assaults occasioning actual bodily harm.
As adverted to above, the defence case at trial did not dispute that, in respect of each of the complainants, there had been a procedure in which Magennis had touched the genitals (though the defence case was that the particular part that was touched was the vulva, not the clitoris) of each of C1 and C2 with steel forceps in the presence of A2. Nor was it disputed that Vaziri had assisted in covering up their actions. However, it was the defence case that only a "symbolic khatna" procedure had been performed on C1 and C2 and that this did not involve any nick or cut to the clitoris of either complainant and did not amount to mutilation. Magennis' explanation for any pain experienced by C1 during the procedure was that Magennis is a diabetic and her hand may have been shaking during the procedure. (The appellants further argue that even if there was a cut or nick it did not amount to mutilation.)
The Crown relied on the accounts given by the complainants, in their recorded interviews with police, of feeling pain and on the expert evidence of Dr X as to the practice of khatna within the Dawoodi Bohra community. In closing submissions at trial (trial transcript, T 2017.49-2018.7), the Crown emphasised the importance of Dr X's evidence as follows: Dr X's evidence is extremely important and the reason why her evidence is so important is that it is a bridge or a platform which links her knowledge of khatna as practised by the Dawoodi Bohra community with what happened to [C1 and C2]. It is using her evidence to inform you as what is involved with that, armed with that information, you can then look at what [C1 and C2] say, and perhaps be very informed about what is involved in the process.
The Crown notes that there was no independent evidence of a purely symbolic practice of khatna being practised in the Dawoodi Bohra community and that Dr X's evidence was that, apart from the rare cases of girls born without a clitoris, the practice of khatna always involved cutting; and that the Dawoodi Bohra community was a "static" one.
The Crown adduced evidence (relevant when considering what was said by various of the persons involved in the telephone intercepts and listening device recordings) from two interpreters that khatna means circumcision. The Crown emphasises the importance of the timing of the various telephone calls and the intercepted conversations set against the then unfolding police investigation. Accordingly, the following is a broadly chronological summary of events, interposing the relevant intercepted conversations. It is necessary to set it out in some detail, given the unsafe verdict ground of appeal (ground 2).

[6]

C1's interview

C1's interview commenced at 9:50am and concluded at 11:42am. C1 was eight years old at the time. The transcript of the interview became MFI 3.
At the commencement of her interview, C1 was asked various questions as to her understanding of truth and of lies (from Q 34-41). Then, after questions about her family, feelings, school and what she did in the last school holidays (including twice being asked questions introduced by the interviewer saying that she had heard that C1 went to an adult's house "for something" in the school holidays (see Q 342; 346)), C1 was shown a diagram of a girl's body and was asked to identify various parts of the body to which the interviewer pointed, and then asked whether anything had been done to her there. In the course of those questions, C1 correctly identified (as "your private part") the genital area (Q 368). Asked whether anyone had done anything to her there, she responded "No" (Q 369). She also identified the bottom and responded "Mmhmm" when asked if anybody had done anything to her bottom (Q 371-373).
There was then the following exchange (from Q 377): Q. OK. I heard that someone did something to your private part. Do you know anything about that? A. No. Q. No? Do you know what, now, probably my pronunciation isn't going to be very good 'cause this isn't an English word, but do you know what khatana is? A. Khatana? Um, no. Q. No? A. But ah, no, I don't think so. I might, I might, but I'm not sure. Q. When you say you might, but you're not sure, what do you mean? What makes you think that you might know? A. Because I might know, because um, maybe I've heard of it when I - um, but I can't remember it, maybe. Q. Where do you think you might have heard it? A. Maybe at my cultural school. Q. Umhmm, do you have any idea what it means? A. Nuh-uh.
The interviewer then said (Q 383-4): Q. Well I heard that it means, um, that it's something that some young girls have, and it's like a type of cutting to the private part. A. Yeah, it is. Q. It is. How do you know that? A. Because it's happened to me.
Pausing there, although the word "cutting" was first introduced by the interviewer, as was the concept of "cutting to the private part", it was C1 who volunteered that this had happened to her and she did so in answer to a question as to how she knew that "khatana" meant "a type of cutting to the private part".
When asked, C1 said that it happened to her when she was "the age of seven" (Q 385). Asked to tell the interviewer more about that, C1 said "I don't really want to talk about it" (Q 386). She said she did not know why; and said, "I don't feel like it" (Q 387).
In answer to further questions from the interviewer, C1 said she was in Wollongong when "[she] had it done" (Q 388); she was not sure whereabouts in Wollongong she was (Q 391); her mum (A2) and her nanna (A5) were there (Q 392); and she thought it was her nanna's sister's house (Q 403), so that person (A3) was also there (the import of her answer to Q 402). Asked whether anyone else was there, she said: "Not that I can remember" (Q 414). She could not remember "who it was that did the khatana for [her]" (Q 415).
Asked what she could remember from start to finish, C1 started with saying, "I was nervous about it, but after it I was OK. And, and um, I had to drink water after it, a lot of water, and I had to have a shower as well" (Q 416).
C1 then described being told to close her eyes and imagine a place she liked and said that, when she had said she liked the gardens, she was told to imagine that she was a princess in a garden (Q 417). She described her dress that her mum had sewn (Q 418-419) in some detail; said that she was on a bed (Q 421); that the person who did it was someone (other than A2, A3 or A5), whose name she could not remember (Q 425-426); then remembered that someone else was there who lived with A3 (A6) (Q 428). She said that before she closed her eyes she saw "all the people around me" (Q 444), who, she said, were "all there to just calm me down" (Q 445).
Slightly earlier, there was the following exchange (from Q 438): Q. So you said that the person who did it had told you to close your eyes and to think about somewhere nice, and you were thinking of the gardens. A. Yeah, yeah. Q. And then what happened? A. And then she did it, so, and she told me to think of that so I wouldn't really feel it that much, but I did feel it a little bit. Q. So what did you feel when she did it? A. It hurt. Q. It hurt. Where did it hurt? A. Um, in the private part. Q. Umhmm, and then what happened? A. Ah, when it was finished, um, I had to have a drink, and then I had to have a shower.
C1 said the drink was lemonade (Q 454) and that she had it in the bed (Q 455); that she was scared of going into the shower because she thought it would hurt her but "then I found out it didn't hurt at all" (in context, clearly a reference to the shower not the procedure that preceded it) (Q 455); and that after that she got dressed and went to the house of the lady "who did it for me", that she thought they went there for lunch (her mum and everyone else who was in the room); and they then went home (see Q 454-465).
C1 was able to give a description of A3's house in Wollongong (see Q 468-470), but not of the house of the lady who had done the procedure, where she said they had gone afterwards (Q 472).
At Q 476, C1 said she did not know what it (i.e., the procedure) was called, but said: A. No, but I know it's happened to me before. Q. OK. And did you know why it happened to you? A. Because it's a part of our culture, and every girl, that has to happen to every girl. Q. OK. And does it happen, um, how old are you when it happens? A. Seven. It has to be seven or so. Q. OK. A. I think it has to be. (Q 476-479)
C1 said it was hard to describe the person who did it for her (Q 480), but she was able to give some description (Q 481-490) and said that the last time she saw the woman was "when she had to do that thing to my sister" (Q 496), which had happened at her own home (Q 519) and, she thought, some time that year (because C2 was turning seven that year (Q 502-503)) with A2 and her aunt (A4) present (Q 508). C1 said the lady's grandson was at the house but downstairs with her (C1) watching television (Q 508ff) and gave a description of the car trip on that occasion to meet the woman at a mosque in Auburn and then to return to C1's house (Q 540ff). (Again, the disclosure that the same thing had happened to her sister (C2) was unprompted.)
C1 said that A2 had told her that it was going to happen before it happened (Q 590-592), but was unable to recall what her mother had told her was going to happen (Q 593). At the conclusion of the interview there was the following exchange (Q 597-599): Q. Yeah, ah, just one question. Are you able to explain exactly what happens … A Nuh-uh Q. … 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. Q. 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.

[7]

C2's interview

C2's interview commenced at 12:26pm on the same day and was conducted by the same members of the JIRT. (The transcript of the interview became MFI 8). C2 was six years old at the time of the interview.
Before turning to the disclosures made in this interview, it is relevant to note that C2 has been diagnosed with a mild intellectual disability which causes her to have difficulty in concentration and to have a limited attention span (see report of Dr Susan Pulman dated 16 April 2015 at 11). Her competence to give evidence (and to give sworn evidence) both at the time of the trial and when she was first interviewed is the subject of ground 4 of the grounds of appeal. The Crown maintains that she had the capacity to answer questions and give evidence, if motivated, and notes that C2 was in an age-appropriate class and functioned in a normal state school, albeit with the benefit of additional learning support.
C2's interview commenced with questions as to her name, her parents' names and her address. She was not able to provide her last name (Q 5); she gave her mother's name only as "mummy" (Q 76); and she did not know where she lived (Q 73). Questioned as to what is a lie, she shrugged her shoulders and said she did not know (Q 34-35); she gave a similar response when asked what is the truth (Q 36). When given an example of an incorrect answer to a simple question (how she had travelled to school that day) she identified that as a lie; but then shrugged when asked what the truth would be (Q 39-41). She readily characterised a lie as a bad thing and the truth as a good thing but was not able to say why a lie was a bad thing or what would happen if she told a lie (Q 42-43).
C2 was unable to identify "the private part" on the body sketch she was given (Q 166-176). The sketch, tendered as Exhibit C, shows that the words "tummy" and "knee" have been written with an arrow pointing to those parts of the body. Asked if anybody had done anything to her tummy, C2 said no. Asked if anybody had done anything to her knee, C2 shook her head (Q 166-169).
C2 was asked if a lady had come to her home to do something special for her and was then asked whether she knew what khatna was. She shook her head (Q 187). Asked if she had heard that word (khatna) before, C2 said no (Q 188). That led to the following exchange (from Q 189-194): Q. We heard that, that that word 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. I don't know. … Q. ...We heard that you had had a cut on your private parts. Is that true? A. Yes. Q. Yeah. When was that? A. I don't know. Q. You don't know when it was. Where were you when that happened? A. Home.
Pausing there, the affirmative response to Q 192 ("We heard that you…") is capable of being characterised as the kind of risk that the expert psychologist (Dr Banks) gave about affirmative responses to leading questions (see [747]-[748] below). However, it is relevant to note that this answer was followed by a description (albeit basic) of where it happened and that it was not on a school day and, most relevantly, by C2's description of how she felt (in answer to a non-leading question - see below).
Questioned further, C2 said that it happened in her mum's room and then clarified that it was both her mum's and her dad's room (Q 198-199); that she was lying down on cushions (that she thought were white); and that it was not a school day (Q 204-211). There was then the following exchange (Q 227-228): Q. …So what did you feel when it happened? A. Hurting. Q. Hurting. Where did it hurt? A. In my bottom. Q. In your bottom. And was anything said when it happened? A. No.
Asked who else was home, C2 said "I don't want to tell you" (Q 196-197). She did not know when it happened (Q 193). She did not know who did it but it was a woman (Q 217-218). She did not know what the woman looked like or what her name was (Q 219-220). She said she knew the woman was coming that day, but she did not know how she knew that (Q 221-222). She did not want to talk about what happened (Q 224). She did not know if anybody said anything to her before it happened (Q 233). She shook her head when asked again if anybody said anything to her after it happened (Q 234). She did not know what she saw when it happened (Q 235). She did not know what she was wearing (Q 236). She did not know what happened afterwards (Q 237). There was nothing else she could remember about what happened (Q 243). She said she had told her mum about what happened, but she did not know what she had said to her mum (Q 245). Her mum had not said anything to her (Q 246). She said that she had told her dad and he had said "It's OK" (Q 248). She said she had spoken to her little sister and her big sister, but did not know what she had said to them (Q 254-256, see also Q 259).
Issues in relation to C2's evidence will be considered in more detail in relation to ground 4. Suffice it for present purposes to note that there were a number of occasions during C2's interview where she gave a "don't know" answer and, when then questioned as to whether it was that she did not know or whether it was instead that she did not want to tell, C2 said that she did not want to tell (see for example Q 103/104; 136/137; 195/196). On watching the recorded interview it can be observed that C2 frequently shrugged her shoulders, fiddled with her shoes, and was distracted (such as when she started drawing and was talking about the drawings). However, some answers she gave readily, such as her answer that it had happened "at home", and as noted, the answer that there was "hurting" in her "bottom" was not in response to a leading question.

[10]

3:04pm 29 August 2012 - telephone conversation between A1 and Vaziri (Ex AA tab 3) (admitted only against Vaziri)

Not long after the complainants were collected from school, there was a telephone conversation between A1 and Vaziri (at 3:04pm). A1 told Vaziri that the police had gone to the school and that C1 had talked to them about "circumcision". He said that C1 had told them "everything that circumcision-kharanat has happened here" and that A2 had received a phone call from the police asking him and A2 to come and speak with the police as a matter of urgency. A1 asked Vaziri what he should say to the police when questioned. Vaziri told A1 that he could not admit that "I have got done". Vaziri repeated that A1 could not admit that.
Vaziri then asked if A1 had been to India recently. A1 said that he had been to India for the birthday celebration of the Syedna in March 2011. Vaziri said that A1 could tell the police that the family had travelled to India for the birthday celebration and had left the children at their neighbour's place and that they did not know what had happened to them there. A1 suggested that instead of India they could say that they had travelled to Africa for a visit and it could have happened there. (This was the genesis of the Africa checking story.)
A1 and Vaziri then spoke about Magennis and whether she might have had any "questions or answers" in her past.
Vaziri told A1 that if he admitted that it had been done "there will be trouble". Vaziri suggested that the police would arrange a medical check and told A1 that if the result was that it had been performed A1 was to say that he did not know anything about it but thought it was very wrong. (Pausing here, this is inconsistent with an understanding that only a symbolic khatna procedure would have been performed, and is consistent with the custom of khatna in the Dawoodi Bohra community involving the performance of more than a symbolic khatna procedure. Moreover, it is inconsistent with Vaziri's later account to the police that he had not heard of khatna or female circumcision. That said, neither Vaziri nor A1 was present at the ceremonies in question and so neither had first-hand knowledge of what was done.)
A1 and Vaziri discussed C1's age and the fact that she had already disclosed what had happened to her and had told her mother about what had happened. A1 told Vaziri that he would ask C1 "properly" what she had disclosed. Vaziri asked A1 if the investigators would act on what a child had said ("would go on that kid's thing"). A1 said that they would. (Pausing here, it is relevant to note that A1 is a registered medical practitioner. Hence, his statement that investigators would act on a child's complaint may be seen as consistent with an understanding, as a medical practitioner, of mandatory reporting obligations of, among other things, child sexual abuse.) A1 said that he would first speak to Magennis.
It was the Crown case that this conversation demonstrated the role of the local Imam (Vaziri) as the head of the local community to whom congregants turned for advice on important matters, emphasising that A1 had sought advice on what to tell the police in the imminent police interview. The Crown also argued that the fact that the original iteration of the Africa checking story was a visit to India indicates the close connection to the head of the sect in India.

[11]

3:20pm 29 August 2012 - telephone conversation between A1 and Magennis (Ex AA tab 4) (admitted only against Magennis)

Also before attending the JIRT office, A1 had a telephone conversation with Magennis, in which he told Magennis "There has been a problem" and that a social worker and the "police people" had visited C1's school and C1 had "told all the truth". Magennis' immediate response was "I'm in problem". A1 said C1 was asked "who was the lady" and Magennis said "Oh no" and asked if C1 had given her name. A1 said "No". A1 said that they had also asked C2 but that C2 would not understand "even half". (This is consistent with A1's understanding of C2's intellectual disability.)
A1 told Magennis that A2 had received a phone call from the police and that they had to attend an interview. Magennis asked A1 if he was going to provide her name to the police. A1 said that he would not. Magennis said: "You warn me". A1 told her that he had discussed that with Vaziri and said that Vaziri had told him not to admit anything. A1 said that Vaziri had asked if Magennis had spoken to anyone about the procedure or not. Magennis said that she had never spoken to anybody about it, not even her husband.
Magennis asked what C1 had told them and then said "That just, I just examined her?" A1 said he did not have that information. A1 told her that C1 had disclosed that something had been done to her with instruments. Magennis said "Yea, but, we can just say, 'We had a check on her and that was it'". She suggested that they should say, "We didn't do anything", and then said, "But there is no scar or anything there" (Pausing here, it is submitted for Magennis that the statement that there was "no scar" there was exculpatory (and supported by the medical evidence)). However, while the statement that there is no scar would, on one view, be consistent with a "symbolic khatna" procedure, it would more logically be seen as premised on the possibility of there being a scar in some such procedures, particularly having regard to Magennis' later statements that the way she did it there would be no scar - see [106] below.
A1 said that he would tell police that they did not perform circumcision but that people from the "old school" did; that they went to Africa where it was possibly done, so they called Magennis to check the complainants, to make sure that nothing had been done to them. Magennis said "Okay, I'm, I am happy to, for you to go that way".
A1 said that he would tell police that he was "totally against this". A1 told Magennis to tell anyone, should they ask, that she checked the complainants but as far as she could see nothing was done.

[12]

3:21pm 29 August 2012 - conversation between A1 and complainants and then between A1 and A2, in car on way to JIRT office (Ex AE (disc)) (Ex AF (transcript)) (admitted only against A2)

After the above conversations, A1 and A2 travelled in A1's car to the JIRT office at Parramatta, dropping the children off at a friend's house on the way. There was a listening device in the car which recorded A1 and A2's conversation with the children on the way to the friend's house. The conversation commenced at 3:21pm.
A1 asked the children what the lady had asked them. C1 told A1 that "from here cut. I am not sure but she …cut". A1 told C1 twice that there was "no cut". A1 said "No you have no cut. We do not cut", "no we do not cut, we can not cut", "Nothing was cut of yours. We don't do the cut, we can't cut it here". C1 then said that "yes, once they asked for scissors… I saw scissor… They do something with scissors? She asked me don't we do with scissors". A1 told C1 that it was not done with scissors and that forceps were used for cleaning purposes "to check up". (The transcript of the JIRT interview with C1 makes no reference to scissors, so this was clearly a recollection of C1 unprompted by any question as to scissors by the interviewer.)
At the trial, C1 agreed that this was a correct reflection of the conversation she had with her father that afternoon (T 135.43-45) and that the procedure she was talking about was what happened (T 135.47-49). (Pausing here, this conversation occurs before A1 has clarified with A2 what was done in the ceremony or in ceremonies of that kind - see [72] below. Moreover, there is no suggestion that A1 was present during the ceremony, so his adamance that C1 was not cut cannot have been based on A1's direct knowledge of what had occurred. It gives rise to the obvious inference that A1 was attempting to dissuade C1 from the account she had earlier given to the police.)
C1 told A1 what she had told the interviewer about who was present. "I said mummy, grandmamma and then". C1 said that she had told them that "and then it happened to sister".
After the children were dropped off, A1 told A2 that he had discussed the matter with Magennis, who was worried that A1 and A2 would "dob" her in to police. A2 asked why they would have to mention her name and A1 said that C1 had already mentioned it (she had not). A1 reminded A2 that they could not "tell anything wrong".
A2 asked A1 what they should say to police. A1 replied "we can say that, yes we called this lady for check up to make sure that they haven't had anything done. Say this way, that we called to check them if anything is being done, because they go to Africa and is been done there. We go to India and Africa and we always do up there".
A2 asked what she should say when asked what the result of the check-up was. A1 told her to say that "she is all fine". A1 told A2 that the police would ask many questions, for example who her friends were and which mosque she went to. A1 said that whilst they were in "problem", Magennis was in bigger trouble and that the police were going to catch her.

[13]

3:56pm 29 August 2012 - conversation in JIRT office waiting room (Ex AG (disc)) (Ex AH (transcript)) (admitted only against A2); 4:08 pm 29 August 2012 - telephone conversation between A2 and A2's mother (Ex AA tab 6) (admitted only against A2)

At 3:56pm, A1 and A2 entered the waiting room at the JIRT office at Parramatta. Police recorded the conversations between A1 and A2 while they waited to be interviewed by police.
Shortly after arriving, A1 and A2 were left alone together in the waiting room. A1 telephoned his mother (A5) and asked her to recite a prayer for him. (A telephone intercept recording and a transcript of this conversation were also in evidence: Ex AR, Ex AS.) A1 told A5 that they had done "khatna" and "there is some problem in that regard". Police then entered the waiting room and invited A1 to participate in a separate interview. (This belies any suggestion that A1 was not familiar with the word khatna, though it does not establish what he understood it meant.) (A1's police interview was not electronically recorded.)
While A2 was in the waiting room on her own, she telephoned her mother in Kenya at 4:08pm. (This call was captured both on the listening device in the JIRT office waiting room (Ex AH) and by telephone intercept (Ex AA tab 6)). The transcript of the listening device recording in the waiting room then records that A2 asked her mother to pray for them because "Girls khatna … in that regard now it become Government matters here". The telephone intercept transcript records that A2 told her mother "Get our daughters circum- circumcision, circumcised don't we? About that, to us, do you see, has now become a government matter over here, yes" and that "caused to perform for our daughters, didn't? For the seven years old". The telephone intercept transcript then records that A2 told her mother that "Government questions have cropped up; have called me and A1"; A2's mother asked why was it not done secretly, and A2 replied "Yes but I do not have the information what reports would have reached them". (This conversation evidences A2's knowledge of khatna, and indicates that she understood khatna to have the meaning of circumcision.)
A1 returned to the waiting room and told A2 what had happened in his interview. He told A2 what he had just told police, including that: he did not know if C2's circumcision had happened overseas; he did not know what they do in circumcision; he was concerned and had spoken with A2, and that she had suggested that they do a check-up; they then called Magennis because she was a registered nurse; A2 organised a check-up; and that as far as he knew everything was fine and the procedure had not been done. (The statement that, as far as he knew, the procedure had not been done can only, in context, be a reference to a procedure involving more than symbolic khatna, because logically a check-up could not have ascertained if symbolic khatna was performed.)
A1 told A2 that the police had asked him if he knew what happened in circumcision and that he had told them that he did not know. There was then the following exchange between A1 and A2: A1: In us do they cut skin? A2: um… A1: or do they cut the whole clitoris? A2: No they just do a little bit…just little… (There is debate as to whether that conversation - i.e., "in us do they cut skin" - should be understood as being a reference to what was done in A1/A2's family - i.e., to the complainants - or in the Dawoodi Bohra community of which A1/A2 were members but, significantly, it shows A1's understanding that khatna might involve cutting the whole clitoris.)
A1 told A2 that she could expect to be asked if she had organised the procedure. A1 told A2 to say that they were "concerned that they are going there … they do it there".

[21]

7:35pm, 8:25pm, and 8:48pm 29 August 2012 - telephone conversations between Magennis and her daughter Fatima (Ex AA tabs 11, 12, 14) (admitted only against Magennis)

There were three telephone calls between Magennis and her adult daughter, Fatima, on 29 August 2012. The first was at 7:35pm. Magennis told Fatima that she had received a phone call from "that one" advising that they were investigating something with respect to what had been performed upon a female child and they would get to the bottom of it. Fatima told Magennis that she should tell her husband as this was very serious. Fatima asked who would have told police and Magennis said that they did not know. Magennis raised the possibility of phones being tapped. Magennis asked her daughter to call A2 and find out what was happening, and to speak in Gujarati when she did so.
There was a second telephone call between Magennis and Fatima later that same night at 8:25pm. Fatima urged Magennis to tell her husband about the investigation and her role; and urged Magennis to telephone A2 "and speak to them directly".
There was then a third telephone call between Magennis and Fatima that night at 8:48pm. Fatima told her mother that she had spoken with A1 about the police investigation and what he had told police. Magennis and her daughter spoke about the fact that someone must have reported it to police and discussed the possibility of finding out who it was, Magennis saying: "by paying for that we can get traced as to who has done the favour".
Fatima said in the course of those conversations, "It's not the first time that you have done" and Magennis said "Exactly, yeah". (For Magennis it is noted that this is in the context of discussing who alerted the authorities to the case. Magennis submits that this was not the subject of a tendency notice. It is argued that this does not necessarily constitute an admission to cutting of the clitorises of the complainants, and that the other procedures referred to may well have been ritualistic.)

[27]

8:19pm 30 August 2012 - telephone conversation between A2 and Magennis (Ex AA tab 20) (admitted only against A2 and Magennis)

There was then a telephone call between A2 and Magennis on 30 August 2012 at 8:19pm, in which A2 told Magennis that they understood that she would be more worried than they were and that was why she called. Magennis said she could not understand why the police "picked up" on C1. A2 said she thought that someone had made a complaint. Magennis suggested that the police would be more interested in A1 and A2 as the parents, not herself.
Magennis said that she could not sleep the previous night. She said to A2 that there "is only one woman whom I denied and I told her I will not do to your daughter" and she had to take the daughter to India to have it done there. She told A2 that while she suspected this other woman of having reported her she had doubts because "she is not that literacy to contact this kind of department and make complaint". (Pausing there, this is consistent with Magennis having had a role in conducting ceremonies of a similar kind for others in the community, of relevance given the complaint here made by Magennis as to references to her as "the circumciser" but, as noted by the appellants, there was no tendency notice in relation to this evidence.)
Magennis said she did not know why or by whom they would have been reported but said that whoever did report the matter "must know that these involved Maula [head priest] our Jamat [community]". A2 said that whoever reported them "do not have faith. They do not have love for Maula".
Magennis asked A2 what the police investigators asked her in the interview. A2 told her that she had been informed by police that they knew it had happened and they were inquiring about it. Magennis asked A2 who she had spoken with about "this matter". A2 replied that she had only spoken to family members. A2 and Magennis spoke further about who could have reported them. Magennis asked A2 if she had taught C1 not to say anything about it. A2 confirmed she had (consistent with the Crown case as to the secrecy of the procedure and C1's statements at the JIRT interview). Magennis counselled A2 that she must teach C1 to respond to any inquiries with "I do not know. Call my mum".
Magennis asked A2 if she had any enemies. A2 replied that there was no-one obvious but "you never know". A2 told Magennis that C1 had not mentioned her name to police as she could not remember it. Magennis told A2 that the police would not give up; she knew this because she had worked with police before.
A2 told Magennis that the police had asked them what her surname was but they told police that, whilst they knew her, they did not know her surname. A2 said that they did not provide to police any details about her identity. She said that they had told police that they met her casually at church and she was a friend. As they knew her to be a registered nurse they asked her to check their daughters so that they did not need to go to a doctor.
Magennis told A2 that she was so worried that she had called Sheikh Jafarbai, who was the secretary of Sehzada Khusebhaisab. Magennis said that Bhaisab (perhaps a reference to Vaziri) was naïve about the laws here "and he doesn't want to know anything about it. He just wants to close the eyes and thinks it is going to go away". A2 agreed.
A1 told Magennis that the children were going to be examined at Westmead and asked "Is there any way they know about it that it happened?" and Magennis said "No .. No.. Because the way I do no one knows even little bit". She also said that A2 would not even recognise that it happened. She then said "No one knows even anything happened here. If they asked. You can say kids are playing on swings, they play in the garden. Graze can happen if they fall".
(It is submitted for Magennis that the statement that the way she does it means that there is no way they would know it happened is exculpatory in that it indicates that she knows, without having to do a further examination, that there is no way of telling whether a procedure was performed. It is submitted that this suggests that there was no cut made to the clitoris and that the procedure was ritualistic. That, however, does not explain the reference to a graze.)
Magennis also argues that the willingness to adopt the Africa checking story might be consistent with a belief that usually more is involved in the khatna procedure but that her method is purely ritualistic.

[44]

7 September 2012 - A2's ERISP with police

A2 participated in an electronically recorded interview with police (the recording of which was played at the trial in the Crown case) at 11:40am on 7 September 2012. During the interview A2 stated that she was aware of concerns that her daughters had been subjected to female circumcision. She said that her immediate thought, on hearing the allegation from the police on 29 August 2012, was that C1 and C2 had been confused about the examination they had had ("the fact that I had them examined").
A2 confirmed her knowledge that female genital mutilation was illegal in Australia. She stated that she was aware that there were different types of circumcision procedures in various cultures. However, she said that she had a limited understanding of the different types of female genital mutilation as she had only heard about the topic in newspapers and from others talking about it. She stated that she was familiar with the term khatanat; that it was something that was talked about privately amongst Dawoodi Bohra women; but that the procedure definitely was not performed in NSW. She did not adopt what she had previously stated in the 29 August 2012 interview in respect of the khatna procedure (that she was aware that some of her family and friends had had the procedure performed on them in Australia) (see [76] above).
A2 asserted that C1 and C2 had not been circumcised but said that the complainants had asked her questions about the topic, particularly in January 2012 when they were on holidays in Africa and another female child was going to have female genital mutilation performed. She said that on their return she had spoken to her children about female genital mutilation: "they were talking a lot about it when we came back".
She explained that many people within her community had asked if she was going to circumcise her children, but her answer had always been no (squarely inconsistent with her conversations with her sister (at [84] above) and A3 (at [91]ff above)). Given the age of her children she believed that there was a risk they would be circumcised without her knowledge in Africa. She said that one time in Nairobi she was talking to a friend who suggested that she should have her daughters checked. After a trip to Africa in 2008 she arranged for C1 to be checked by Magennis. At a later stage Magennis also examined C2. She stated that the examination only involved Magennis looking at C1's and C2's genitals.
C1's examination was said to have occurred at A3's house and C2's at her own house. During each examination, female family members were present in the room: during C1's examination, A3 was present, and during C2's examination, A4 (a paternal aunt of the complainants) and A5 were present. A2 stated that awareness of more official ways to have her children examined for circumcision meant that she would not call upon Magennis for that purpose in the future.

[59]

13 September 2012 - Vaziri's ERISP with police

Vaziri participated in an interview with the police on 13 September 2012, after which he was charged. His record of interview was played at trial as part of the Crown case. During the interview he said he did not know what khatanat was. He said that he had never heard of females being circumcised until that very moment and was not aware of female circumcision occurring within his community. He denied any knowledge of a debate occurring within the community about the practice of female genital mutilation and said he had not spoken to anyone in his community about the topic.
Vaziri said that he had been provided with a brochure four days earlier, which stated that female genital mutilation was not legal in Australia. He said that the legalities of female genital mutilation did not concern him, as his community did not practise female circumcision.
Vaziri confirmed his knowledge that A2 and A1 had been charged the week prior with committing female genital mutilation on their children and stated that they had approached him after being arrested in order to obtain a "blessing" from the 52nd Dai Mutlaq. He conceded that this meant that he had heard of female genital mutilation prior to walking into the interview room. He said that he never provided advice to A1 and A2 and that he assisted with their request for blessings from the 52nd Dai Mutlaq.
Vaziri said that he had never given advice to community members about how to deal with the police in these situations, because he did not know anything about female genital mutilation. He questioned why the police would come if it was not practised in their community. He said that in his 30 years as a religious person in both India and Australia he had never come across the topic of female genital mutilation.
Throughout the interview Vaziri denied any knowledge of female genital mutilation within the community. He stated "it should be condemned"; "We totally condemn it"; and said that he was completely against female genital mutilation and that if he ever found out about it happening in his community he would report it to the police. Vaziri said that he was the highest Dawoodi Bohra authority in Sydney, but was not in a position to authorise any ritual involving female genital mutilation, and explained that the Koran dictates that Muslims must abide by the laws of the land in which they live.

[66]

C2's JIRT interview was also read as evidence in chief at the trial. She also gave evidence at the trial, at which time she was nine years' old. In her evidence in chief at trial, C2 responded "no" to the question whether she remembered speaking to the police at school some years ago (T 156.11-156.13); she denied that she had watched an interview on the day of her evidence (T 156.18-156.19); she did not remember seeing herself on the video answering some questions with "a police lady" (T 156.21-156.23); she then agreed that she had just earlier that day watched the recorded interview with the police in court (T 156.25-156.26).
The Crown asked further questions in evidence in chief: C2 could not remember looking at the diagram of the girl and telling the police lady where her body parts were (T 175.20-175.23); shown the diagram, she did not remember doing some work on the diagram with the police lady at the school (T 175.25-175.31); she did not remember talking to the police and the other lady about the various parts of the body in the interview (T 176.16-176.21); and, when asked to have a look at the document and say whether she could see it in front of her, she gave no verbal reply (T 176.23-176.25). (The appellants refer to this exchange as reinforcing the contention that C2 did not grasp what was going on and was not competent to give evidence about a particular fact.) C2 stated that she did not write her name on the diagram. However, she confirmed that her name appeared on it.
In cross-examination, C2: did not know who she saw in the DVD she had just watched (the DVD of her police interview) and did not know who she saw or recognised in the DVD (T 177.34-177.46) (though when pressed she said she recognised herself (T 178.1)); could remember speaking to the ladies in the DVD but could not remember how long ago she had spoken to them; could not remember being asked questions in the DVD about something that happened in her mum and dad's bedroom (T 178.10-178.13); did not remember anything happening in her mum and dad's bedroom (T 178.15-178.16); did not remember anything happening in her mum and dad's bedroom where she was lying on a cushion (T 178.18-178.20); and did not remember anything happening in her mum and dad's bedroom where she was lying on a cushion and the lady touched her (T 178.22-178.24).
When asked, "When you say "no", [C2], do you mean no, you don't remember, or no, you don't know, or no, you don't want to say?" (T 178.26-178.27), C2 responded "I don't want to say" (T 178.28), but when asked why (she did not want to say), she said "I don't know" (T 178.33-178.34). (The Crown points to C1's evidence that she had been told not to speak about the procedure and submits that it was open to be inferred that C2 would have received the same direction that the procedure was not to be spoken about.)
C2 was able to state the date of her birthday (and that she would be turning 10 on her next birthday). She acknowledged that the interviewer had got her date of birth incorrect in the interview.

[67]

A1 gave evidence that his wife, A2, had received a telephone call on 29 August 2012 requesting that he go with her to the JIRT office in Parramatta and that, by the time he went to the JIRT office, he understood that his daughters had undergone a "khatna ceremony" (T 1127.48). He said that A2 explained to him that this involved "placing a forceps in genitalia and some Koranic verses prayed at the same time". (This is on one view inconsistent with his questioning of A2 in the JIRT office (see [72] above).) He gave evidence that A2 told him that A5 and A4 and were present for C2's procedure (T 1137.38-T 1137.50) and that it was Magennis' role to place the forceps on the child's genitalia (T 1138.7). A1 said he did not ask A2 any questions about that. He did not ask her where the forceps were obtained nor the purpose of the ritual.
A1 said that, whilst waiting in the lobby at the JIRT office, he spoke to A2 about the khatna procedure generally in the Dawoodi Bohra community and that A2 told him that "there is some sort of skin which is cut off from the genitalia" (T 1129.5-1129.7). A1 did not know the size of the piece of skin that was removed, nor did he know from where it was cut (T 1132.37-1132.40). A1 said that when he asked A2 about the practice of khatna in the Dawoodi Bohra community it was a general question; he denied that he was asking about what was presently done in NSW (T 1133.33-1134.5). He said that he had spoken to Vaziri before going to the JIRT office, with "the main purpose… to get blessings" (T 1129.23).
A1 denied that he had any knowledge of the khatna procedure performed on C1 or C2 at the time of the procedures and said that he only found out on the day that he had been called to the JIRT office. A1 denied that either C1 or C2 had spoken to him about the procedure performed upon them (T 1138.35-1138.45). A1 also denied that C1 had ever spoken to him "about something happening to her private parts with scissors" (T1139.15). (This is clearly false given the conversation in the car on 29 August 2012 - see [62] above.)
A1 denied that he had ever held suspicions that something may have happened to C1 and C2 in Africa. He denied that he had ever spoken to A2 about these concerns (T 1138.48-1139.3). He denied that he had discussed with A2 that the complainants should be checked (T 1139.16-1139.23). Thus he denied the Africa checking story that he had earlier given to police.
A1 also denied that, to his knowledge, Magennis had a particular role in the community (T 1139.34).
A1 agreed that he had discussed the Africa checking story with A2 and Vaziri; and that he had been a party to fabricating the Africa checking story (T 1147-1149). He said that this was because of a concern that they "were being called by DOCS" (T 1148.3). He agreed that he had continued to put forward the Africa checking story in the weeks following his daughters' JIRT interviews and had repeated it in his interview with police on 7 September 2012. He said that this was because he did not have an opportunity to disavow the Africa checking story in the course of the interview (T 1152.25-1152.33). However, A1 knew that he did not have to speak with police and had the assistance of a solicitor present to give him legal advice.
A1 agreed that, as a medical practitioner, he understood the importance of an accurate history given by a patient to their doctor. He agreed that he had lied when giving the Africa checking story to Dr Marks as part of the complainants' medical history (T 1157.31-1158.5).
The Crown was granted permission to cross-examine A1 on a limited number of bases.
On the voir dire on 3 September 2015, A1 had said that khatna was "a female ritual where they touch some sort of a metal object on the private parts and some prayers are done at the same time" (pre-trial transcript, PT 623.50); and that he was not exactly sure where the metal came into contact with the complainant (PT 624.13); and that A2 gave him this description on 29 August 2012, after they had been telephoned by the JIRT, but while they were still at home (PT 624.22-624.30). On 13 October 2015, A1 told the Court that A2 had told him that it involved "placing a forceps in genitalia and some Koranic verses prayed at the same time" (T 1128.12); and that A2 gave him this description after they received the call from the JIRT on 29 August 2012. A1 also said that, while they were sitting at the JIRT office later that day, A2 told him that in khatna "there is some sort of skin which is cut off from the genitalia" (T 1129.5-112.9.7).
A1 was cross-examined by the Crown (at T 1182.34-1195.35) as to the different versions he had given with respect to his understanding, based on what A2 had told him, of what happened in khatna. A1 insisted that his answer at T 1128.12 was a truthful answer about what A2 had explained to him. A1 agreed (at T 1189.45-1189.50) that he had lied in his interview with police on 7 September 2012 when he said "I have got no clue about these things" (see [130] above).
A1 was cross-examined (from T 1196.10) as to the recorded conversation that he had with the appellant A2 in the JIRT office waiting room on 29 August 2012, in which he asked A2, "in us do they cut skin or do they cut whole clitoris?" A1 said that he was using the word "us" to mean the Dawoodi Bohra community and that this conversation was a general conversation about traditional khatna, not a conversation about what he understood had been performed on his daughters (T 1198.20-1200.35).
A1 gave evidence that he had not spoken about the procedure with C1 (T 1138.35). He said that C1 had never talked to him about something happening to her private part with scissors (T 1139.13-1139.15) (evidence falsified by the telephone intercept of the conversation with C1 in the car on 29 August 2012: see [62] above).

[68]

A3 (A1's aunt, and the sister of A5) gave evidence that she lived in Wollongong and was a member of the Dawoodi Bohra community in Sydney (T 1019.20-1019.28). She said that she knew Magennis as a member of the same community and as a friend (T 1022.31-1023.2). A3 said that it was possible that Magennis had visited her house at Wollongong between October 2009 and August 2012 (T 1023.50-1024.1).
A3's evidence was that she had previously understood the term "khatna" to relate only to boys but had learnt through the court proceedings that it referred to females as well (T 1024.20-1024.3). She understood khatna to mean circumcision (T 1024.32). With respect to females, A3 understood the term to mean "some sort of ritual, just symbolic ritual or something". A3 said she knew it to be a cultural ritual performed on girls (T 1025.10-1025.15).
A3 confirmed that there was an occasion when C1 was brought to her house and A2, A5, and Magennis were present (T 1025.32-1026.1). A3's evidence was that A2 said she wanted to conduct a symbolic khatna (T 1026.46-1026.47). A3 said, "Still I was not sure what they were up to but she told me it". A3 said that she was not interested in what was happening in that regard. A3 said that she did not take an interest in that aspect of the conversation and was only concerned with the lunch.
A3 again said that she did not understand what was happening but that they spoke about a "symbolic khatna" (T 1027.6-1027.14). She said that they all went into her bedroom upstairs but A6 remained downstairs preparing lunch. C1 was "meant to lie down on the bed" and then "we were just doing bit of prayer here and there and then I was in and out of the room" (T 1028.47-1029.1). She denied watching the procedure. She heard Magennis telling C1 words to the effect "it won't hurt you. I'm just going to touch you" (T 1063).
She said C1 was wearing a dress but A3 could not remember if there was any clothing on the bottom half of her body. A5 was praying. A3 said she stayed in the room for about two minutes as she was "more worried about the preparation of the lunch". She said C1 appeared "quite calm" (1029.9-1030.10). A3 said that the bed C1 was lying on was her own bed and that there was no blood there after the procedure (T 1110-1111).
A3 said that the Africa checking story was made up because when the charges were laid, there was panic (at T 1058.45): … we have to give this excuse. Because of the charges, there was a lot of panicking and all that sort of thing. It was a shock to everybody's system, you see and in that context this was being said. But now the truth is there, about symbolic khatna, so why all this fuss? I don't understand.
The Crown obtained leave to cross-examine A3 with respect to what occurred in her bedroom that day, and the topic of khatna (see R v A2; R v KM; R v Vaziri (No. 11) [2015] NSWSC 1541). It was put to her that, at the time of her telephone conversation with A2 at 8:21 am on 30 August 2012 (see [91] above) she understood the topic of the conversation "as what it was, khatna, not symbolic khatna, isn't that the case?" (T 1060.34-1060.25). A3 again said that she was not interested in observing the procedure performed on C1 and did not know what was involved in khatna (T 1062.7-1062.17).

[69]

A5 (the mother of A1, mother-in-law of A2, paternal grandmother of C1 and C2, and sister of A3) was a member of the Dawoodi Bohra community and had been a friend of Magennis since 2009 (T 875.43-875.47). A5 participated in a Record of Interview with police on 19 September 2012. A5 gave evidence at trial on 8 October 2015.
In examination in chief, A5 was asked about a visit to A3's house (at T 876-900). A5 confirmed that she visited A3's house between October 2009 and August 2012. She confirmed that on one occasion in particular C1, A2 and Magennis were present, along with A6 and A3. A5 knew that Magennis was a midwife. On this particular occasion, A5 was in a room with A3, A2, Magennis and C1 (A6 was down in the kitchen). The others told her to pray so she prayed. C1 was on the bed but A5 did not notice anything happening to her because she was focussed on the recitation of prayers. Her prayers lasted about 10 to 15 minutes and she did not pay attention to other things happening in the room. A5 said that they were gathered in A3's bedroom with C1 "to do some check-up so they told me to pray so I prayed this". A5 did not understand what the purpose of the "check-up" was, nor did she ask for any details.
A5 was then asked (at T 900-912) about another occasion, a "special occasion for C2", at the house of A1 and A2. A5 had attended A1 and A2's house on many occasions. She recalled one particular occasion when A4, A2, C1, C2, Magennis and Magennis' grandchild (a young boy known at trial as "Q") were present. On the drive to A2's house that day she was told by A2 that the visit was for lunch and for some "check-up". When they arrived they went into a sitting room and then upstairs to A2's bedroom. C2 was on the bed. The others told A5 to read and recite prayers.
She did not see anything done to C2 because she was praying and there was some distance between them. She said that Magennis and A2 had their backs to her and she did not see Magennis do anything to C2 (T 904). She recited a particular prayer to ensure that the "check-up" was successful. When A4 asked her what had happened upstairs, A5 told A4 that it was a "check-up".
A5 was questioned about her understanding of the term "khatanat" (T 912). She said "I know it is circumcision in gents"; confirming that in English it was called circumcision and in Gujarati it was called khatana. She said she did not know what the procedure was and never knew the word khatna was used for women as well (T 912).
The Crown obtained leave to cross-examine A5 in a limited way (see R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491).
A5 said that khatna was a symbolic procedure (T 997). She said she did not see what happened, did not know about any injury, and did not know exactly what happened in the khatna procedure (T 999.15-1000.25).
The recorded telephone conversation on 29 August 2012 at 4:05pm between A5 and A1 (Exhibits AR and AS; see [69] above) was played to A5. A1 had told A5 there was a problem because they had done khatna to the complainants, and A5 had asked him if it was to do with C2.
It was put to A5 that in this recorded conversation she used the term khatana in the context of females, yet she had previously given evidence (see [198] above) that she only recognised the term khatana in the context of males. It was put to her that her previous evidence was untruthful. A5 maintained that she did not understand the term khatana when used in the context of females (T 951.5-952.47). However, she accepted that in the phone conversation with A1 she understood the use of the word khatana (T 951.13).
A5 was taken to a second conversation recorded by telephone intercept the next morning, 30 August 2012, at 9:38am (Exhibits AT and AU) between herself and A1. She agreed that she was speaking frankly to A1 and that the second call was about khatana as well (T 964.12-964.26). A1 had told her that the police had gone to C1 and C2's school and interviewed them about khatana and that the complainants had told the police about it. In this conversation A1 recounted that he had told the police that as a community they did not practise khatana but he knew this was a lie. A5 acknowledged this and said "Ha ha" (meaning "Yes, yes") (T 968.3-968.7). In cross-examination, A5 said that she could not remember the conversation with A1. A5 agreed that whatever was recorded in the conversation would be true but she could not remember the conversation as it had taken place some years before (T 967.10-968.46).
A5 was also cross-examined by the Crown about a later part of the same conversation with A1. They discussed the Africa checking story and A1 corrected A5. A5 had said that C1 and C2 had been subjected to the procedure in Africa (as opposed to A1 and the appellant A2 holding concerns that it might have happened in Africa). It was put to A5 that she had got the lie wrong and that A1 was correcting her on it. A5 said that she agreed with whatever was on the recording (T 971.5-972.4).
A5 was further cross-examined that she knew that what she was talking about with A1 was illegal because she had asked A1, "is anyone tapping your phone?" A5 said that she had "heard that phones are tapped so I may have been worried because of that" (T 996.35-997.31).
A5 said that she might not have seen anything happen to the complainants because she was reciting the Koran and that the khatana procedure was "symbolic" (T 997.37-997.50). When it was put to A5 that she had never used the word "symbolic" to describe the procedure in her evidence, always having previously referred to it as a "check-up", A5 responded that her answer was a "slip of the tongue" (T 998.18-998.24).

[71]

Dr Susan Marks

Dr Marks, a staff specialist in medicine at the Children's Hospital at Westmead who has been attached to the Child Protection Unit at that hospital since 2008, conducted medical examinations of both complainants on 3 September 2012 in the presence of both A1 and A2.
Before turning to Dr Marks' findings, it is relevant to note Dr Marks' evidence as to the structure of female genitalia. By reference to a photograph (Ex D) of adult female external genitalia, Dr Marks explained what was meant by the clitoral hood and the clitoral glans (T 1427.15-1427.21): namely, that the clitoral hood is a fold of skin that surrounds and protects the clitoral head (T 1430.16-1430.20). Dr Marks' evidence was that the hood over the clitoral head is not part of something else - it is the clitoral hood (T 1502.23-26). In re-examination she said that clitoral anatomy includes its hood "because they are closely physically related to each other. But they are separate in that the clitoral hood is skin and the clitoris is different - it's actually different tissue. They are closely physically related to each other. They are right next to each other, but they are not the same" (T 1502.36-1502.40).
Dr Marks' evidence was that any cut or nick to the external female genital region would cause injury to and loss of skin cells at the site of the cut (T 1449.10-1449.12). (The appellants point out that in Dr Marks' evidence she noted that loss of skin cells could result from scratching one's arm - see T 1449.20-25.)
As to scarring, Dr Marks said that if there was a superficial cut to the skin of the clitoral hood then that could heal completely, it could heal leaving a scar, or it could heal with abnormal scarring (T 1431.1-1431.3). She said that most people heal very well and that in that area of the body things tend to heal very quickly because there is excellent blood supply (T 1431.4-1431.6; T 1436.14-1436.20). She said that, as a result, there could be no long-term evidence that a cut had occurred or there could be no scarring (T 1431.8-1431.13).
Dr Marks expressed the opinion that the examination of C1 would be expected to be normal because the genital region heals very quickly and she also said "[i]t is very common for the genital examination findings to be normal following past injury to the genital region" (T 1440.30-1440.37). In cross-examination she disagreed with the proposition that a cut to the prepuce or the clitoral head would leave a scar (T 1485.1-1485.10).
As to pain, Dr Marks' evidence was that the genital region "is one of the very sensitive areas of skin in the body, so yes, I would expect that any cut to the skin of the genital region would be painful" (T 1430.36-1430.39). She said that the genital region of pre-pubertal children is very sensitive (T 1435.29-1435.34); that the duration of the pain would depend on the nature of the cut but it "would be painful at the time it happened and possibly painful for a short while thereafter, but … it's typically painful whenever they pass urine while it is healing over the next few days" (T 1430.41-1430.45). Dr Marks explained that the clitoral head was made up of dense nerve tissue primarily and there was also a dermis of vascular tissue which has a blood supply (T 1431.25-1431.26). She said that a cut to the clitoral head would be painful and that it would be quite painful for a period of time immediately after (T 1434.19-1434.31).
Asked about how a cut to the clitoral head would affect sexual function, Dr Marks said that the actual effects of the cut and the experience of having the cut "could potentially have future effects on things like future sexual functioning" (T 1435.18-1435.22); and that if the nerve tissue of the clitoral head was cut that could lead to a loss of sensation, reduced sensation or altered sensation including hypersensitivity (T 1445.10-1445.14) and it might have an impact on future sexual functioning (T 1445.23-1445.30).
As to bleeding, Dr Marks gave evidence that she would expect a cut to the clitoris to bleed (T 1449.30-1449.31). She said that bleeding would depend on how big the cut was and how deep it was (T 1449.30-1449.34).
Dr Marks was asked to comment on how much blood might result from an excision of the tip of the clitoris (T 1472.43-1472.45). She said that it would depend on how much tissue was excised and how deep the cut was and that there would be blood but not necessarily a lot of blood (T 1472.46-1472.50). She said that the removal of a small amount of tissue from the tip of the prepuce would result in a small amount of bleeding (T 1473.13-1473.16).
In cross-examination Dr Marks said she had never seen a cut clitoris bleeding (T 1485.19-1485.20). She would have seen bleeding from the skin of the genital region on many occasions (T 1485.25-1485.27). She said if the size of a pea was cut from the clitoral glans then there would be a significant amount of bleeding (T 1486.14-1486.17).
Dr Marks' evidence was that the general physical examination of C1 was unremarkable: report dated 13 September 2012 (MFI 10) at [6]. Dr Marks found no evidence of any scarring on C1's genitals and said the external genitalia appeared normal (at [7] of the report). In evidence, she said (T 1427.15-1427.21): There was no evidence of any scarring and the external genitalia appeared normal. In particular, the clitoral hood - and another word for that is prepuce - appeared normal and the anterior part of the clitoral body was visible as the ridge underneath the skin of the clitoral hood. However, the clitoral head, and another word for that is glans, was not clearly visualised..
As to C2, Dr Marks made very similar findings (see T 1442.36-1442.43; T 1443.20-23).
Dr Marks said she looked for the clitoral head or glans in C1 but could not see it (T 1427.25). Dr Marks said that in C1, normal clitoral hood tissue was present (T 1430.25-1430.26).
In her report, Dr Marks had said that it was possible that C1 had had Type 1 FGM (as described by the World Health Organization) performed on her (T 1433.26-1433.28). She said this was because Type 1 FGM also includes the total or partial removal of the prepuce, the fold of skin surrounding the clitoris (T 1433.41-1433.48). She said "it is possible that there could have been removal of a very small part of one of those structures" (T 1433.48-1433.50). She said that Type 4 FGM (as defined by the World Health Organization) includes pricking, piercing, incising, scraping and cauterising the genital area (T 1434.4-1434.6).
In her examination in chief with respect to C1, Dr Marks said "there could have been pricking, piercing or incising, the genital area. There could have been a cut to the clitoral hood, there could have been a cut to the clitoral head and there could have been removal of part of the clitoral head" (T 1440.11-1440.14). She said she could not exclude that a small amount of tissue had been removed or that there was a cut to C1 (T 1437.11-1437.15). She said the clitoral hood had not been excised (T 1437.17-1437.18).
Dr Marks interpreted her findings in light of the history that C1 had given "that she had had a cut that had hurt" (T 1433.10-1433.13). In summary, Dr Marks' opinion was that C1 could have had a cut to the clitoral hood that had healed and not left a scar, or she could have had a cut to the clitoral head itself that did not result in any appreciable change (T 1433.13-1433.17). Dr Marks said that it was also possible that a "small amount of tissue could have been removed from either of those structures" and considered (based on what C1 said and what Dr Marks could see) that it was possible that there had been Type 1 or Type 4 FGM based on the World Health Organization definition (and that the latter type of mutilation includes a nick or a cut) (T 1433.19-1433.28). Dr Marks said that a cut to the clitoral head would involve cutting nerve tissue with disruption to the nerve endings in the clitoral head (T 1434.37-1434.43).
Dr Marks' evidence was that the examination findings alone neither confirmed nor denied the allegation of female genital mutilation (report in relation to C1 dated 13 September 2012, [10]). Dr Marks said that the examination would be expected to be normal if there had been a cut to the genital region at some time in the past, because the genital region heals rapidly and very well, typically without leaving a scar, and that it was very common for the genital examination findings to be normal following past injury to the genital region (report in relation to C1 dated 13 September 2012, [10]).
Based on her examination of C2 and the same history given by A1 and A2 in relation to their concerns as to the travel to Africa, and in the context of C1's reported disclosure (that she had had a "little cut to her private parts" and that this had also happened to her sister C2 in the recent school holidays) and C2's reported disclosure that something had been done to her and "that it hurt her in the bottom", Dr Marks considered that C2 also could have been subjected to a possible female genital mutilation procedure which involved pricking, piercing, or incising the genital area, a cut to the clitoral hood, a cut to the clitoral head or a partial removal of the clitoral head (T 1444.40-1444.44). Dr Marks said that C2 had not had a significant part of her clitoris removed but she could have had a small amount of tissue removed (T 1444.47-1444.50) and that if she had had a cut to the clitoral head that would involve cutting nerve tissue (T 1445.1-1445.4). As with C1, on examination of C2 it was not possible to see the clitoral head (T 1443.11-1443.22).
Later in her evidence in chief, Dr Marks said that her findings indicated that the possible female genital mutilation procedures that could have occurred included: pricking, piercing or incising the genital area, a cut to the prepuce or clitoral head, or removal of part of the clitoral head (T 1446.18-29). (We interpose here that the appellants note that there was no mention of the possibility of removal of the prepuce.) Again, Dr Marks said that her findings alone neither confirmed nor denied the allegations that had been made with respect to female genital mutilation.
As to the inability to visualise the clitoral glans (head), Dr Marks said that the tightness of the clitoral hood has an impact on the ability to visualise the clitoral glans (T 1472.17-1472.20), explaining that (at T 1472.23-1472.32): The best way I can think of to explain it is … it's actually if you compare it to a little boy. So the - a little boy who has not been circumcised and has a foreskin, the foreskin can come right down over and completely - I am talking about a very young child, and completely cover the penis so that you can't see it. If you were to forcibly pull back the foreskin, then you might be able to see it, but sometimes you really can't see it unless you pull back. So in a little girl, the structures are smaller and the head of the clitoris is smaller, but it has the - the skin that is over it is attached to it quite firmly, and can make it difficult to see and the only way then would be to forcibly pull that skin back.
Dr Marks said this could be a possible reason why she could not clearly visualise the clitoral glans on C1 or C2 (T 1472.34-1472.37). She agreed with Professor Grover in this respect that this was a possible reason why she could not visual the head of the glans (T 1486.34-1486.46). However, Dr Marks excluded the possibility that the reason she could not visualise either C1 or C2's clitoral heads or glans was because of a condition called lichen sclerosis (T 1450.15-1450.20, see also Professor Jenkins at T 1408.36-1408.38), one of the possibilities to which Professor Grover referred. Dr Marks also said that neither C1 nor C2 had labial fusion (T 1450.49-1451.1; see also Professor Jenkins T 1408.20-1408.21), another possibility to which Professor Grover had referred.
In cross-examination Dr Marks accepted that it was possible that there was no injury whatsoever to C1 or C2 (T 1474.29-1474.30). She could not exclude the possibility of a ceremonial procedure (T 1474.48-1475.2). She agreed she found nothing abnormal in her physical examination (T 1483.1-5).

[72]

Professor Gregory Jenkins

Professor Gregory Jenkins, a specialist obstetrician and gynaecologist with active visiting medical appointments at Auburn, Westmead and Norwest Private Hospitals and a founding member and lead obstetrician at the female genital mutilation clinic at Auburn Hospital (the first clinic of its kind in New South Wales), was called by the Crown to give evidence. Professor Jenkins had been provided with the JIRT interviews of C1 and C2 and the medical records of C1 and C2, as well as the various medical reports from Dr Marks and Professor Grover.
Professor Jenkins said that, although he was not an anatomist, as a gynaecologist he considered the prepuce and the clitoris to be separate structures (T 1399.46-47).
Professor Jenkins commented on Dr Marks' finding that "the glans (head of the clitoris) was not clearly visible in examination". Professor Jenkins said that there were two possible explanations why the glans or the head of the clitoris may not be clearly visualised: it may be a normal anatomical variant (T 1398.40) - i.e., due to the age of the complainants this might be a normal variant among girls of that age (T 1408.29-1408.30) - or it may have been that there was some distortion of the anatomy which had occurred because some type of female genital mutilation procedure had been performed (T 1398.38-1398.43). Professor Jenkins agreed with Professor Grover that one potential difficulty that might explain why the tip of the clitoral head could not be seen was because of the tightness of the clitoral hood (T 1408.4-1408.10).
Professor Jenkins had never examined pre-pubertal girls who had undergone female genital mutilation, but had examined women who had undergone such procedures (T 1398.45-1398.50). He had examined approximately 5-10 women who had undergone a procedure that involved cutting off the tip of the prepuce or the tip of the clitoris (T 1399.1-1399.5). He said that any overt change in their anatomy was "broadly speaking, not obvious at all" (T 1399.13). He said that "it would only have been with very careful inspection that one would have noticed that there was an anatomical abnormality present"; he said that with very careful inspection scar tissue could be seen in those areas (T 1399.20-1399.28). Professor Jenkins said that if a female had been subjected to the removal of the tip of the clitoris or tip of the prepuce (classified as a Type 1 female genital mutilation procedure) this would "[n]ot necessarily (be) easily visible, if only a small area of tissue had been excised" (T 1401.14-1401.15). His experience in examining pre-pubertal girls was very limited (T 1400.31).
Professor Jenkins considered that Dr Marks' observation that she could not clearly visualise the glans did not support or exclude the happening of female genital mutilation (T 1401.21-1401.22). (That was also Dr Marks' conclusion.)
Professor Jenkins said that the prepuce and clitoris are "richly innervated" and the clitoris "has a much more rich nerve supply than the prepuce" (T 1402.42-1402.48). He said that direct injury to the clitoris would be more painful than an injury to the prepuce (T 1403.2-1403.3). Professor Jenkins said that he would anticipate that cutting the tip of the clitoris off would result in pain (T 1409.1-1409.3). He said the pain would be longer than transient and last for more than a few minutes (T 1409.21-1409.23).
Professor Jenkins said that he had seen a number of girls with accidental injury to their genitalia and "injuries to the clitoris tend to bleed much more profusely than injuries to the structures surrounding the clitoris" (T 1402.33-1402.35). He said that injuries to the prepuce tend to bleed less than direct injuries to the clitoris (T 1402.39-1402.40). Cutting the tip of the clitoris off would result in noticeable bleeding (T 1409.5-1409.6). He said direct injury would bleed quite heavily and the prepuce would bleed less but still noticeably (T 1410.16-1410.27).

[73]

Professor Sonia Grover

Professor Sonia Grover, the director of the Department of Paediatric and Adolescent Gynaecology at the Royal Children's Hospital, head of a gynaecology unit at the Mercy Hospital for Women, and head of the Family Planning Unit at the Austin Hospital, was called in the defence case. Professor Grover had been provided with a copy of Dr Marks' reports regarding C1 and C2.
Professor Grover gave her expert report without having been provided with either C1 or C2's JIRT interviews, relying on the summaries of the interviews in Dr Marks' reports (T 215.20-215.23). Professor Grover said she may have read the word "khatana" but said that it was not an expression that "carries much significance to me" (T 202.49-203.1). Professor Grover did not have "any distinct information" with respect to the Dawoodi Bohra community (T 203.12).
Professor Grover was provided with the following background information by the solicitors acting for the defence when requesting her expert opinion: the child was laid on a bed with her lower body bared and legs apart; Magennis put on latex gloves; Magennis held a pair of forceps in her left hand; she touched the forceps to the child's vulva; her hands were shaking and she accidentally pinched the vulva with the forceps; the skin was not cut; and Magennis immediately stopped (T 214.35-214.50).
Professor Grover agreed in cross-examination that the word clitoris was a global term which included structures such as: the clitoral ridge; the clitoral hood; the shaft of the clitoris; the clitoral glans; and the prepuce (T 202.6-202.18).
As to Dr Marks' observation that she could not "clearly visualise" the tip of the clitoris, Professor Grover said that one had to be quite careful about what conclusions were drawn because "in a little girl this is a sensitive area, so to do this you might have to peel the skin back a little bit and that's sensitive territory, girls are going to pull their legs together, it's not something that you like to do, so it can be uncomfortable to do, so that might limit your capacity to have a careful look and see the tip. A relatively common finding in little girls is a condition called labial adhesions and what happens in little girls is that their hormone levels are obviously very low and the skin can stick from one side to the other" (T 195.6-195.15).
Professor Grover gave three possibilities for the inability to visualise the clitoris: labial adhesions; a condition called lichen sclerosis; and, third, that the tip of the clitoris may not be seen because it had been removed.
As to the first possibility, Professor Grover said that whilst the literature might suggest that labial adhesions were present in 3% of "little girls", from her own experience she believed it was present in 47% to 48%. Professor Grover said that labial adhesions were therefore a "relatively common finding in almost 50% of little girls and that could potentially obscure seeing the clitoral tip" (T 195.15-195.25). Professor Grover said that in the girls that she had recently examined in the last few weeks before the trial she could not see the tip of the clitoris in at least a third of them. She believed that it was not an infrequent finding (T 195.27-195.30). (Dr Marks did not see any evidence of labial fusion or labial adhesions on examination.)
As to the second possibility, Professor Grover simply noted that a condition called lichen sclerosis could also contribute to the tip of the clitoris not being seen (T 195.32-195.36). (Dr Marks said that when she examined C1 and C2 she did not see any evidence of lichen sclerosis.)
As to the third possibility, Professor Grover was asked to describe the medical consequences of a removal of the tip of clitoris (T 195.41-195.48). Professor Grover said she expected that a cut to the clitoral head, unless it was very superficial, would cause bleeding (T 197.29-197.34). A nick or a cut to the clitoral head, "if it was minimal as anything then it hardly counts as trauma but you could not have much and you wouldn't see anything if you've actually done that, but then it's hard to prove anything has happened" (T 197.36-197.39). Professor Grover said that removing the tip of the clitoral glans would result in pain (T 196.6). She said that the genital area is a sensitive area and there would be some pain when urinating in the days following the procedure (T 196.39-196.44). Professor Grover agreed that a cut or nick to the clitoris would heal rapidly, within seven days (T 210.15-210.17).
Professor Grover gave her opinion that, given her instructions that the complainants did not complain of pain or problems days afterwards, that "whatever was done was a minor procedure. It is possible that pricking was done" (T 219.12-219.19). Professor Grover said that "[i]f it was cutting it had to have been very superficial" (T 219.22). Professor Grover conceded that she did not inquire as to what type of forceps had been used in the procedure (T 220.33-220.36). (She also said that she would not use forceps to examine a young child's genital region if the child was awake (T 225.21-225.23).) Professor Grover agreed that she had not conducted an examination of either child.
Professor Grover agreed that if the child had her eyes closed during the procedure, she may not see the small drop of blood which could have been there (T 219.24-219.28). Professor Grover also agreed that, depending on the size of what has been done, it was possible to do minor things to many body parts and not see scars, "so people's scarring is not just the severity of the injury but the skin's response and so there's variations" (T 232.10-232.16).

[75]

Dipakkumar Bhatt

Mr Bhatt was born in the state of Gujarat in India (T 460.16-460.17). He spoke Gujarati as his native language (T 460.19-460.20). He received recognition as a Gujarati interpreter and translator in 2012 (T 461.43-461.45). He had been working as an interpreter in the Hindi language since 1999 (T 461.47-461.48). He translated and transcribed the conversations on the telephone interception material from Gujarati to English (T 462.16-462.25).
Mr Bhatt said that the language used by the Dawoodi Bohra community is Lisan al-Dawat (T 464.20-464.22), also known as the language of beckoning or prayer; that the grammar and syntax of Lisan al-Dawat is based on Gujarati; and that historically the languages were very close and undeniably similar. He said that, apart from its roots in Gujarati, Lisan al-Dawat includes words derived from Arabic, Persian and Urdu. He could understand the language because it is derived from Gujarati and it has some Arabic as well as Urdu and Persian words (T 464.49-465.7). He said he understood the words used in the telephone conversations (T 465.9-465.19).
Mr Bhatt said that in preparing the translations of the recorded conversations he became familiar with the usage of words from Arabic, Persian and Urdu that were borrowed by the language and that he became familiar with the various voices of the speakers.
As to the words "khatna" and "khatanat": Mr Bhatt said these were different words: khatna, a noun with a dictionary meaning of circumcision (T 466.35-466.38); khatanat (an Arabic word), a verb in the past tense meaning "circumcised" (T 466.39-466.40). He said that khatanat had a female gender (T 466.43), which was indicated by the last letter "t". Mr Bhatt also said, "I'm not an Arabic interpreter so I cannot tell you a lot of details about that ("khatanat") because I learnt this from an Arabic interpreter" (T 467.14-467.16; see also T 469.27-470.31). He said that these words were Arabic in origin (T 466.37-466.40) and that, whilst they had been adopted into Lisan al-Dawat, they had not been adopted into Gujarati (T 471.4-471.13).

[77]

Evidence of Dr X

Dr X, whose evidence is the subject of ground 3 of the grounds of appeal, is a retired professor who had taught at the Indian Institute of Technology in Mumbai for 36 years in the areas of psychology and women's studies. Dr X was born into the Dawoodi Bohra community in India and remains a part of the community (T 544.35-544.42). She has a PhD in psychology. Her other qualifications are set out in her examination in chief at T 538.46-542.19; T 544.25-546.50; T 547.30-549.35. She said that her understanding of the Dawoodi Bohra community comes from being a member of that community in India and in particular, in Mumbai (T 554.6-554.9). She left India to study overseas in the United States when she was 22 or 23 (T 620.21-620.41) but later returned to India and now lives in Mumbai.
Dr X gave evidence that she became interested in women's issues in India in around the early 1980s and maintained that interest until her retirement in 2010 (T 548.33-548.38). She became interested in the Dawoodi Bohra culture and in particular women in that community (T 555.14-555.16). She started researching cultural aspects of women in Dawoodi Bohra culture and would research particular cultural activities and festivals (T 555.18-556.29; 560.3-560.37). She said her participation in the community changed after doing the research because she observed much more carefully what went on around her (T 560.25-560.26) and she started to look at things systematically (T 560.32-560.33).
Dr X has published numerous academic treatises on the role of women in Shi'a Islam (which includes the Dawoodi Bohra community). Her articles and papers include "Women in Indian Society: A Reader" (published 1988); "Urban Women in Contemporary India: A Reader" (2007); "Women and the Dawoodi Bohra Reform Movement: An Overview with a Case History" (1994); "Gender and Moharam Rituals in an Isma'ili Sect of South Asian Muslims" (2005); "The Practice of Female Circumcision among Bohra Muslims" (1991); and "All for Izzat - the Practice of Female Circumcision among Dawoodi Bohra Women" (MFI 33), the last dealing with the topic of female circumcision among the Dawoodi Bohra community. The "All for Izzat" article was published in 1991 in a journal (Manushi) in India (T 563.4-563.17). Dr X said that Manushi is a journal targeted at women activists and women academics (T 565.1-565.10). The article was not peer reviewed (T 563.4-563.8). Dr X's study, research and experience of the Dawoodi Bohra community only related to women (T 565.12-565.14).
Dr X gave evidence as to the structure of the Dawoodi Bohra community throughout the world (T 565.33-566.18). Dr X's evidence was that the headquarters of the Dawoodi Bohra faith are situated in Mumbai (T 565.49). The head of the faith, or spiritual leader, known variously as Aka Maula, Syedna or Maulana, also lives in Mumbai and there are representatives of the spiritual leader throughout the world (T 565.41-566.18). Dr X said she was familiar with the term khatna and understood that it meant circumcision (T 566.48-567.2). She said that khatna was a gender neutral word (T 567.5-567.6). Her knowledge about female circumcision in the Dawoodi Bohra community was from the following sources (T 567.15-567.26): [m]y knowledge about female circumcision in my community comes from the fact that I have been circumcised, that there have been some writing on it also, and the fact that I did research on it and I interviewed 50 women and one or two women who actually circumcise, the circumciser, and we talk in our community occasionally, very rarely about these matters when something comes up or among friends. It is a very rare thing, but we do sometimes have occasion to talk, so my knowledge comes from that and my knowledge comes from when I started this paper, I had to do a lot of reading on FGM which was of a very different nature from this, I realise, so it also comes from secondary data of other people writing on it, FGM in particular.
Dr X said khatna was performed on her in Mumbai when she was between five and seven years old (T 567.28-567.33). Her mother took her to a home in the Bohra mohalla, an enclave where people from the same community live (T 567.44-567.46). She did not know whose house she went to and she was not told what was going to happen to her (T 568.4-568.11). When she arrived at the house her mother removed her underpants and she lay down on her back and spread her legs (T 568.27-568.29). Her mother held her leg and the other lady "just went down between my legs and what - well, whatever she did, the cut she made, it was very painful" (T 568.34-568.35). She said that the lady put some powder on it and her mother told her that everything would be OK (T 568.36-568.38). She cried all the way home (T 568.41-568.42). She said it stayed painful for a day or two (T 569.22-569.26). She said she felt the pain on her clitoris (T 569.29). Her mum was holding her leg and an arm (T 569.42-569.43). Nobody told her anything after the procedure (T 569.45-569.47). Dr X said that she now knows this procedure was female circumcision (T 570.3-570.9). She said that that is female circumcision as she understood was practised by the Dawoodi Bohra community and she also knows from others that this is the way "we" do it (T 570.11-570.13). She was not aware if the woman who performed it had any particular role in the community (T 570.15-570.17).
Dr X did not remember the exact period she started the research for her 1991 article (T 572.45-573.1). She said that she used a standard methodology in that there was a questionnaire that she had for the 50 women and she added some of her own experience and secondary data (T 573.13-573.19). The secondary data she used included a newspaper article written on Dawoodi Bohra women by an Indian journalist (T 573.29-573.31). Dr X said the women did not fill in a questionnaire but (after starting the topic of khatna) she asked each of the women a standard set of questions and recorded their answers (T 574.14-574.24). The women she questioned for her article were all members of the Dawoodi Bohra community living predominantly in Mumbai (T 574.39-574.44). The women she spoke to were all fairly mature (T 575.15-575.17).
Dr X also visited the house where she had been circumcised (T 575.33-575.35). She interviewed a woman who was at the same house but did not know if was the same lady who had circumcised her (T 576.5-576.10). The information the lady told her was included in the article under the heading "Profile of a woman who does female circumcision" (T 576.24-576.30). That lady was about 75 years old, had been trained by her grandmother's sister and said that it was in her family (T 576.40-576.48); she had taught her daughters-in-law how to do it (T 577.11-577.12). The woman told her that you had to get permission from the clergy to do it (T 577.14-577.21). Dr X did not know the exact process required to get that permission (T 577.36-577.40). The woman was paid about 70-100 rupees for the procedure (T 578.16-578.19).
Dr X said the woman told her the procedure and described the tools to her (T 578.42-578.43). Asked what the woman said about the procedure, Dr X said "It was very similar to what I have - what they did to me basically" (T 578.46). Dr X said the woman told her that she has a box with a razor, pieces of cloth, paper which is used to wrap the "foreskin" which is thrown away, a small box of indigenous medicine, and a powder mixed with silk thread and ash to heal the wound and one inch pieces of cloth to put on the cut in cases of bleeding (T 578.46-579.1). Dr X said that "I think she described the whole thing to me about what they did. So that would mean that cutting a little skin from the genital area, in that little place and putting …" (T 579.11-579.13). Dr X said they do not have a specific word for the part of the genitalia and the woman did not really show her the specific part (T 579.22-579.23).
She said the procedure involves the mother helping her to get the girl on her back and open her legs (T 579.1-579.3); and that the procedure is very quick (T 579.7), depending on whether the girl is agitated.
Dr X also said that she now knows, from her own knowledge, the specific part that is cut in the procedure (T 579.25-579.27). As to the source of her knowledge, she said "I would rely on my own experience [i.e. her own circumcision] much more than [what the circumciser told me] - because I can't recall what she told me now. So it's my experience that probably is dominating what was actually cut" (T 580.29-580.32). Asked what was cut, Dr X said "The tip of the clitoris, but it's the tip of the prepuce. Even I don't know the tip of the area over there. You want to call it the "prepuce", "clitoris", I don't know which one it is because I am myself not totally familiar with all the technical terminology of this area of the human body" (T 580.36-580.40). Dr X did not know what would happen to the woman if she did not get permission and she did not know if a person would be able to do it without permission from the clergy (T 580.42-580.49).
The size of the tissue removed was, she said, the size of a lentil (T 581.8). No anaesthetic was used (T 581.10-581.11).
Dr X did not know how many cases the woman circumciser had where there had been bleeding (T 581.16-581.21). Dr X said that after the procedure the woman recommended that the genital area be washed with warm water and antiseptic and the girl be given coconut water to help in the discharge of urine (T 581.25-581.28).
Dr X did not remember who told her that afterwards the girl is told not to mention what happened to her to anyone (T 581.37-581.43). She did not think she discussed with the woman circumciser whether the girls are told what is done to them or the reasons for it (T 582.4-582.6).
Dr X asked the 50 women she interviewed the reasons for the procedure; and some of the responses indicated that it was obligatory and required in the shariat, and that it is the path of a good Bohra woman (T 582.8-582.20). She said that another reason was that it is tradition, a customary practice, and done to curb the girl's sexuality (T 582.20-582.26). Dr X said it was commonly performed on girls aged six to seven, but she could not remember if this was a question that she asked the women; rather, it was common knowledge (T 582.30-582.37). She said that the 50 women she interviewed told her that it is done when the girl is aged between six and seven because that is the age the girl does not understand everything and she is innocent (T 582.39-582.45).
Dr X said that from her own experience she did not know what role the clergy played in sanctioning or requiring khatna to be performed and from the "little research" she had done, "the name gets mentioned" (T 583.44-583.47).
Dr X said that, generally speaking, the mother takes the daughter to the "local circumciser" for the procedure, but Dr X could not recall asking the 50 women specifically who takes the daughter (T 584.35-584.40).
Dr X gave evidence that the woman circumciser with whom she spoke had spoken to her about ritualistic khatna, which was performed on the 1 in 100 girls who are born circumcised (T 585.30-585.33). She said this procedure involved placing a cut betel nut leaf on the spot where the cut is made and then removed (T 585.35-585.37). Other than this, Dr X had never come across any other ritualistic form of khatna (T 586.10-586.12).
Dr X said she knew which area was cut on her when she became an adult, and that she knows from others which area was cut because they have told her exactly what is cut and where it is cut (T 586.34-586.39). She said that the others told her it was painful (T 586.41-586.42). She then gave evidence as to the effect the procedure had on her and on others (T 587.3-587.19). Dr X's evidence was that as an adult, if she touched her clitoris it was sometimes painful which she thought was probably due to the circumcision (T 587.14-587.15). Dr X said that her clitoris was "painful in parts… the skin had to be sort of covered, something, in order not to be painful" (T 602.36-602.38).
Dr X gave evidence that the women she spoke to did not mention khatna of their own volition, but that they actually spoke quite freely about it (T 588.1-588.5). She said that, generally speaking, the topic of khatna is very rarely discussed among Dawoodi Bohra women (T 588.7-588.11). Dr X said they do not talk about it unless it is absolutely necessary (T 588.16).
Asked whether, based on her experience, study and training of the Dawoodi Bohra community, the practice of khatna has changed over time (T 588.33-588.34), Dr X said "I think the procedure has not changed" (T 588.35) and that "To the best of my knowledge it has not changed, but I cannot be totally sure about it either, but I don't think it has changed" (T 596.31-596.33). Asked if she had an opinion about the nature of the khatna procedure in the Dawoodi Bohra community in different countries, Dr X said "I would imagine that being a member of the Dawoodi Bohra community, things remain the same - well, no matter which part of the world you are in because we have a certain structure about things" (T 597.14-597.16). Dr X said that this is because the Dawoodi Bohra have representatives wherever the community is and these representatives receive information from headquarters in Mumbai (T 597.20-597.23). She said that if the khatna procedure changed everybody in the community would know about it (T 598.3-598.5) and that this would come from women of the clergy class (T 598.8). She said that she has not come to know about any change in the khatna procedure over the years from the time she wrote her article in 1991 to the present time (T 598.14-598.17). In her opinion, the procedure had remained the same (T 598.42-598.44). The "sameness" applied to the age of the girl and the part of the genitalia that is cut (T 598.46-498.50). She did not think there was any option about what could be cut (T 599.2-599.4).
Dr X said that generally in the community she would not really know who performs khatna on the girls but she thought she mentioned somewhere that khatna was performed by Mullanis, women who had some semi-religious knowledge, midwives, or any woman who had experience (T 601.25-601.29). Dr X said bleeding is rare but that "I don't know in how many cases there is bleeding" (T 602.11-602.15). She did not remember if she had bled (T 602.17-602.19).
Dr X gave evidence that the Gujarati word for genitalia is "gaan" but that there is no word to differentiate between the clitoris, labia majora or labia minora (T 603.27-603.34).
Asked whether she had ever heard of a ritualistic khatna being performed in the Dawoodi Bohra community which involved placing a metal object against a female child's vulva while prayers are said, Dr X said: "I don't know whether it's practised or not. I can only say that this particular circumciser mentioned it to me in a conversation. What is happening out there right now in terms of these things, I don't know" (T 603.47-604.2). She said she had not heard of such a thing except from the circumciser (T 604.4-604.7).
In her article "All for Izzat", Dr X had described the procedure as one where "the foreskin, the size of a yellow mung bean, is excised". In cross-examination, Dr X said that the circumciser did not use the word "foreskin" and that she must have used the word "skin" (T 636.49-636.50). Dr X thought she used the term "foreskin" to mean "the top of something, top of the toppest, you know, something like that. It's a piece of skin" (T 637.1-637.2).
In cross-examination, Dr X accepted that she did not have formal qualifications in anthropology (T 622.47-623.12). She agreed that the entirety of her publications on Bohra women amount to about 12 in her total career (T 623.37-623.38). She said that these related to Bohra women in India (T 623.43-623.45). She had not studied Bohra women in Pakistan or Kenya or Tanzania (T 623.47-624.1), nor in Canada, the United States or Australia (T 624.3-624.5). She accepted that there were Bohra communities across the world (T 624.7-624.9). She had not had anything to do with the Bohra community in Australia (T 624.19-624.21).
Dr X described the publication Manushi as a semi-academic journal (T 624.43). She said Manushi does not have a peer review system nor was it a peer reviewed journal (T 625.12-625.17). She doubted that her article was sent to a person for review (T 625.25-625.35). Questioned about her methodology for the research she conducted for the article (T 625.48-629.27), Dr X accepted that the article was not perfect and that there were mistakes in it (T 630.36-630.39).
Dr X had not returned to this topic after writing the article (T 626.24). She did not still have the set of questions she asked (T 627.9-627.11). She said the research occurred maybe a year or so before 1991 (T 627.40-627.45). The 50 women were all in Mumbai (T 627.50). She could not recall all the details of her methodology but she visited the homes of women and asked if they were willing to speak on the topic (T 628.9-628.14). She could not remember the total women she spoke to but said that probably 50 women were willing to talk to her on the subject (T 628.16-628.19). She gave evidence in cross-examination that she filled out the questionnaire and she could not recall if she filled it out as she was talking to these women, but said that she must have because that was how she did all her research (T 633.1-633.10).
Dr X could not recall if the women described their own experience of khatna and, even if they did, she did not include it in her paper (T 633.41-633.45). She did not know now what each woman said happened to them (T 633.47-633.49). Asked that "in terms of the actual procedure, what is done as far as khatna is concerned, your article relies on your memory and your conversation with the circumciser primarily, doesn't it?" (T 634.5-634.7), she said "[a]nd the 50 women, and my knowledge which comes from just talking to - for example, when I've written 'other Muslim sects do not practise it', it has come from talking to women of other sects. So it's more than 50 women" (T 634.8-634.10).
She said that the information about the nature of the procedure in her article came from her own experience, the conversation she had with the circumciser, and from talking to other Bohra women - friends her age (T 634.38-634.43). She agreed that her friends would have had khatna performed on them in the 1950s (T 634.49-635.1).
Dr X maintained her opinion that the procedure had not changed (T 629.11-629.27). She had never witnessed a khatna ceremony other than her own (T 629.34-629.35). She had not taken her own daughters for the procedure (T 629.40-629.41). She had not seen members of her extended family circumcised (T 629.43-629.47).
She agreed that the procedure happened to her in 1950 or 1951 (T 630.6-630.7). She said that no doctor had examined her in that area for the purpose of seeing what sort of damage was done to her by the khatna (T 630.9-630.19). Cross-examined on her account of the circumcision performed on her (T 631.1-632.17), Dr X could not say exactly what part was cut other than it was "between her legs" and in a "localised place" (T 631.28-631.32). She did not see whether the person who performed the procedure on her cut anything but she said that whatever it was, "it was sharp, it was in a very specific place and it was painful" (T 638.40-638.41). She could not recall if she was in pain in the next two or three days (T 638.46-638.48).
Dr X said that she spoke to the woman circumciser just once (T 635.13-635.14). She said that she usually took notes when she went to do her research and she assumed that she took notes in this instance (T 635.16-635.18). She agreed that the description under the sub-heading, "Profile of a woman who does female circumcision" in her 1991 article was in fact a description only of that woman (T 635.49-636.1).
Dr X said that the questions she asked the 50 women with whom she spoke did not cover which part of the anatomy was cut (T 677.10-677.22). Dr X said that there is only one word in Gujarati to describe the whole female genitalia, which is "gaan" (T 637.8-637.10). She said that when she said the foreskin is excised that she meant that it was cut off (T 637.40-637.46).
Cross-examined on her understanding of the reasons why khatna is performed (T 639.12-639.46), Dr X said that it was her own personal belief that it is done to curb female sexuality (T 639.44-639.46). Cross-examined on the purpose for performing a symbolic procedure by placing a cut betel nut leaf on the clitoris of girls who were born already circumcised if the reason was to curb sexual desire (T 640.3-641.7), Dr X said "[i]t might be some kind of ritual which has a symbolic meaning which I don't know about" (T 641.1-641.4). She said she probably did not ask the circumciser she interviewed about the meaning of such a procedure (T 641.6-641.7).
Dr X said that some of the 50 women she spoke to for her 1991 article indicated that they did not have khatna performed on their daughters. The 1991 article stated that "about 10 percent have given up circumcising their daughters". Cross-examined on this figure (T 641.21-641.34), Dr X thought that it was referring to 10% of the women in the community as a whole (T 641.30-641.34). She agreed that this was in 1991 (T 641.36-641.37).
Dr X said that she had not had anything to do with the topic since 1991 (T 652.14). She was cross-examined about an article that suggested that female circumcision occurred in hospitals in Mumbai (T 652.16-653.49). She was also cross-examined about the consequences of not being circumcised (T 657.7-658.49).
Dr X was not aware of any systematic study on khatna within the Dawoodi Bohra communities since 1991 (T 656.17-656.19).
Cross-examined on her use of the word "sunna" in her "All for Izzat" article (T 664.31-666.26), Dr X agreed that she used the word "sunna" to describe the nature of the practice in the Dawoodi Bohra community in India. She said that she thought her understanding of the Arabic word "sunna" was a mistake at the time (T 664.35-664.37). She agreed that in her article she described circumcision or "sunna" as "removal of the clitoral prepuce, the outer layer of the skin over the clitoris, sometimes called the hood; the glans and the body of the clitoris remain intact" (T 666.13-666.16).
Dr X agreed that there was an anatomical difference between the prepuce and the clitoris (T 670.26-670.30). She said that she realised now that when she wrote the article she was "not totally clear about these two structures and even the names of these structures, and I thought the prepuce was all just one thing, clitoris, okay" (T 671.1-671.3). She agreed that she did not know the difference at the time she wrote her article (T 671.18-671.19). She said that she took them to be one and the same thing (T 671.23-671.24). She said "I really still don't know which part of it is cut, the prepuce or the tip of the clitoris, but something is cut" (T 672.3-672.4).
Asked in cross-examination whether she knew which physical part of her genital anatomy was actually cut, Dr X said (T 672.21-24): I will not say that I do not know. I do know which part of the female genitalia is cut. It is that particular thing. The only thing is whether it is the tip of the clitoris or the tip of the prepuce. It is the tip of that thing. I mean I do know that other parts have not been cut. It's not like I don't know.
Dr X said that she had not seen her clitoris and did not know what it was that was cut, but she knows where it was cut (T 672.26-672.29). She said "the prepuce and clitoris is so close that I wouldn't know which one was cut" (T 672.33-672.34). She was shown a diagram on which she marked out where she said she had been physically cut (T 673.4) (Defence Exhibit 5). She agreed that the circle depicted the part of the anatomy where she believed she had been cut (T 674.2-674.5). The part that she has circled (called the "Anterior labial commissure") sits above the prepuce, which itself is above the glans of the clitoris (Defence Exhibit 5). Dr X agreed that the police had communicated with her asking whether she had made a mistake (T 674.7-674.10) and that her response was that her own understanding of the details of the female anatomy was inadequate (T 674.20-674.21). She agreed that the part she marked was by reference to her own perception of where she felt the pain (T 674.23-674.25).
Cross-examined about her use of the word "foreskin" in her article when giving an account of what the woman who discussed the excising had told her, Dr X said "when I meant "foreskin", I meant the tip of the clitoris" (T 682.30-682.33). She said she used the word "foreskin" to mean "something on the top which is cut. There is skin all around the area that is not cut, but what is right on top is cut. That is how I used the word 'foreskin'" (T 682.35-682.40). She agreed that she was meaning to convey, given her now more extensive understanding of the difference in the female anatomy, that it was part of what she would now describe as the prepuce which is cut off (T 682.43-682.46). Dr X said that she used the word "excise" to mean that something is "cut" (T 684.21-684.24), and used it to connote "cut off" (T 684.44-684.45).
Emails and conversations between the Officer in Charge, Detective Eugene Stek, and Dr X were in evidence (Ex 6). In these emails, Dr X had told Det Stek that she had not done any research since 1991 and had nothing "new to add" to her "All for Izzat" report (T 706.18-706.30); she initially indicated that she did not want to assist but he persuaded her to (T 707.13-707.19). Det Stek informed her that the prepuce and the clitoris were different and asked whether it was a "technical error" in her article that she referred to removal of the prepuce or tip of the clitoris (T 708.16-708.30); Dr X responded that she was not familiar with medical jargon or the structure of some of the body parts and that she understood that only the tip of the clitoris is removed (T 806.4-806.13). Det Stek emailed Dr X, stating that the area she had nominated on the diagram was not the tip of the clitoris and asking whether there was an area where she nominated where the cut was; he wrote, "I know Denise has already gone over this with you but if it is the case that you wish to change the area that was cut, as you have marked in your statement, let me know and I can arrange a further statement" (T 806.35-806.45). Dr X responded, "I have looked at the pictures and read the report and all this medical and anatomical description confuses me. Can I stick to a layperson's understanding of this anatomical structure? Isn't the tip of the clitoris the same as the small amount of tissue from the clitoral head?" (T 807.12-807.16). Det Stek responded "no, the clitoral head is the area marked 'clitoris' on addendum 1 on Dr Marks' statement… The concern the prosecutor raised was that you have marked the top of the prepuce of the clitoris but the clitoris is the area that is hypersensitive, so therefore they were requesting a short supplementary statement that I can draft for you outlining that change" (T 807.22-807.31). Dr X had responded, "Eugene, since I am myself not sure what was nicked, you could prepare what you mention and I will do the needful" (T 807.49-807.50) - by which Dr X says that she meant that "whatever the doctor has told him and whatever he thinks I really should mark and that's what I meant, that whatever it is that you think has been cut from what Dr Marks has informed you I will do it because I'm not clear about it" (T 808.5-808.10).
Dr X agreed that she had signed an updated statement (T 809.8-809.9). She agreed that she had responded to an email from Det Stek requesting further information in which she had said, "I am afraid the prosecutor has turned me into an expert on FGM which really I am not. I have no access to religious texts of the Bohras and therefore know next to nothing about it. Also, I do not know anything about the African scenario for the Bohras living there. I can send you what little I know and can react to" (T 811.8-811.14). Dr X agreed that this reflected her own perception of herself as an expert on FGM and that she had not read the religious texts of the Bohras, so her knowledge was limited to that extent (T 811.15-811.21).

[78]

Evidence in relation to FGM community education program

This evidence comprised both evidence of the community education program (which involved presentations and workshops with health and allied health professionals), given by Ms Vivienne Strong (former Manager of the New South Wales Education Program on FGM) and Ms Linda George (the Community Education and Development Officer of the same program); and evidence of Magennis' registration in NSW as a nurse. The evidence was admitted over the appellants' objection on the grounds of relevance (see R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427 ("Judgment No 7") in relation to the campaign and R v A2; R v Magennis; R v Vaziri (No. 15) [2015] NSWSC 1545 ("Judgment No 15") in relation to Magennis' registration as a nurse).
Magennis was registered as a nurse and midwife from 28 February 1995 to 6 March 1997, 9 October 1997 to 5 November 1998, 23 February 1999 to 4 March 2004 and 3 May 2004 to 7 June 2007 (Judgment No 7 at [8]); and there was evidence that suggested that Magennis had worked at Liverpool Hospital between 2000 and 2004 (Judgment No 7 at [9]).
Ms George gave evidence that she had provided data concerning the attendees at seminars, and she confirmed that those records did not reveal Magennis' name (T 830.26-830.27).
Ms Strong gave evidence that the brochure that was provided to health professionals indicated that no one could perform female genital mutilation even for cultural reasons and that a person cannot consent to female genital mutilation (T 728.30-729.21). "FGM" was described to include "damage to the female genital area in other ways" (T 725.27-725.28). The brochure also referred to the possibility that "other types of injury to female genitalia can also be considered assault and wounding and are offences…" (T 726.6-726.9). Ms Strong said that the program was rolled out between 1997 and 2006 through Auburn Hospital and possibly Westmead and Blacktown Hospitals, but definitely Auburn Hospital (T 770.24-770.28). There was evidence that the mosque at Auburn had been "targeted" due to suspicions as to the practice within the community (see the complaint made as to this in ground 9 below).

[79]

Evidence of Magennis

Magennis gave evidence at the trial over a number of days. She was born in Kenya into the Dawoodi Bohra community (T 1519.25-1519.32). She remained in Kenya until she moved to England with her first husband. In England she was certified as a midwife. Her evidence was that, while she was living in England, she was contacted by the local Imam's wife who asked her whether she was aware of the khatna ceremony that was performed within the community (T 1534.46-1535.6). She explained that it involved a skin nick. Magennis said she was asked to perform khatna for the Dawoodi Bohra families living in England because she was a midwife and considered to be intelligent. She said that she refused because she knew that khatna would be stressful and painful for a child (T 1535.3-1535.6).
Magennis' evidence at the trial was that she understood khatna to be a "ceremony of touching the edge of the genital area of the skin allowing the skin to sniff the steel" (T 1533.3-1533.5). She said that she gained this understanding from her paternal grandmother, who told her about it on a trip back to Kenya after Magennis' daughter, Fatima, had been born. Her grandmother provided her with this information after Magennis had spoken with the Imam's wife.
Magennis said that she performed the khatna ceremony, as described to her by her grandmother, on her daughter. She described it as a "symbolic forceps ceremony", stating that forceps were made of steel, so she thought that they could appropriately be used (T 1533.50-1534.11).
Magennis moved to Australia in the 1970s and became acquainted with A2 and her family through the Dawoodi Bohra community and attendance at the mosque. Her evidence was that A2 asked her on a number of occasions whether she would perform khatna on her daughters, C1 and C2; and said that, although she initially refused the request, she eventually agreed to perform the ceremonies (T 1537.9-1538.14).
Magennis said that C1's ceremony occurred at A3's house. Magennis said that while lunch was being prepared, A2 asked "could we do the ceremony with the forceps?"; that she agreed; and that the women went upstairs to A3's bedroom (T 1538.1-1538.19).
Her evidence was that, once upstairs, she washed her hands, put on gloves and retrieved a pair of autoclaved forceps from A2. She said that C1 was lying on the bed with her legs apart; and that she then used the forceps, which had round edges, to touch the edge of C1's labia majora on the outside for approximately two to three seconds (T 1539.15-1539.16). She said that C1 was very anxious and told A2 that she had been hurt during the procedure (T 1540.1-1540.7). Magennis said that she is an insulin-dependent diabetic and that she performed the procedure when she had not eaten lunch and she believed she was "going through a hypo" (T 1540.4-1540.5). She stated that she might have touched C1 "a little harder on one side because [her] hands were trembling" (T 1540.5-1540.6). She said that while the procedure occurred, the other women were saying prayers. She was not paid any money for performing the ceremony (T 1542.11-1542.12).
Magennis said that C2's ceremony was performed at A2's house in a bedroom and A5 was present (T 1543.7-1543.14). She said that when she entered the bedroom she went to the ensuite bathroom to wash her hands and put on gloves; and that she retrieved forceps that had already been autoclaved from the bedside table (T 1543.22-1543.24). She said that while C2 was lying down with her legs apart, she "touched her couple of seconds" on the top part of the edge of her labia majora (T 1543.27-28; 1544.17-1544.18). Magennis turned her back for a moment and C2 had already put her clothes back on and run downstairs to watch a video.
Magennis stated that the ceremony needed to be performed on C1 and C2 because it was an "age-old ritual that's been carried out amongst the Bohra women" (T 1544.46), although she was not aware of the reasons for the ceremony.
Magennis said that when she found out that the Department of Community Services were investigating what had happened to C1 and C2 she was horrified. She thought she may have done something illegal in exposing and touching C1 and C2's genitalia (T 1546.6-1546.9).

[80]

Grounds of Appeal

The respective grounds of appeal in relation to the conviction appeals are the same for each of the appellants, as follows: Ground 1: The trial judge erred in his directions to the jury in relation to the meaning of terms "otherwise mutilates" and "clitoris" in s 45(1)(a) of the Crimes Act 1900. Ground 2: The verdict of the jury is unreasonable and cannot be supported having regard to the evidence. Ground 3: His Honour erred in admitting the evidence of Dr X. Ground 4: (a) His Honour erred in ruling C2 competent to give evidence. (b) His Honour erred in granting leave to ask leading questions pursuant to s 37 of the Evidence Act. (c) His Honour erred in disallowing cross-examination of C2 on certain subject areas under s 42 of the Evidence Act. (d) The admission of the evidence of C2 caused the appellants' trial to miscarry. (e) His Honour erred in failing to give a warning that the evidence of C1 and C2 might be unreliable. Ground 5: His Honour erred in his directions on the subject of consciousness of guilt. Ground 6: His Honour erred in ruling that the evidence regarding the charges with respect to each complainant were admissible as coincidence evidence in relation to the other complainant. Ground 7: (a) His Honour erred in ruling that the evidence regarding the charge with respect to C2 was admissible as tendency evidence in relation to the charge with respect to C1. (b) His Honour erred in his directions to the jury on the subject of tendency evidence. (c) His Honour erred in his directions to the jury on the subject of coincidence evidence. Ground 8: His Honour erred in admitting the evidence regarding the FGM education campaign. Ground 9: The trial miscarried as a result of the manner in which the Crown case was presented to the jury. Ground 10: A miscarriage of justice was occasioned as a result of the summing up to jury failing to adequately balance the respective cases of the Crown and the defence. Ground 11: A miscarriage of justice was occasioned on account of evidence now available to the appellants.
As presaged by ground 11 of the grounds of appeal, at the hearing of the appeals there was an application by the appellants for leave to adduce new evidence, namely expert evidence of a further physical examination of each of C1 and C2 carried out on 8 January 2016 after the conviction of the appellants on 12 November 2015.
The Crown opposed the grant of such leave but sought leave, if leave were to be granted to the appellants to tender that new evidence, to tender its own further expert evidence in reply. Given the significance of the new evidence - in particular, that it reveals that the tip of the clitoris (which could not previously be visualised) can now be seen in both complainants - it is convenient to deal first with the applications for leave to adduce new evidence before turning to the balance of the issues raised in these proceedings.

[82]

Appellants' application for leave to adduce new evidence

The new expert evidence comprises: a report dated 27 January 2016 in respect of each of the complainants by Professor Grover, the gynaecologist who was called to give evidence in the defence case at trial; as well as a statement dated 25 January 2016 in respect of each of the complainants by Dr Jennifer Smith, a paediatrician and the medical director of the Victorian Forensic Pediatric Medical Service; and a further expert report from Professor Grover, being a report dated 3 April 2017. Each of Professor Grover and Dr Smith acknowledged having read, and agreed to be bound by, the Expert Witness Code of Conduct.
The significance attributed to the new evidence by the appellants is that it is said to demonstrate that the appellants should not have been convicted of the offence contrary to s 45 of the Crimes Act because the 8 January 2016 examination shows that there is no damage to the clitoris of either C1 or C2. As such, it is submitted that it is unnecessary for it to be established that the evidence is fresh (see Lawless v The Queen (1979) 142 CLR 659 at 675-676; [1979] HCA 49).
In any event, it is submitted for Magennis that the evidence is fresh evidence, on the basis that it is evidence that she could not have discovered exercising reasonable diligence (see Gallagher v The Queen (1986) 160 CLR 392 at 395; [1986] HCA 26 ("Gallagher"); Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [706]-[714]), a distinction being drawn by Mr Game between Magennis' position and that of A2 in this regard given that, unlike A2, Magennis has no family relationship with C1 and C2 (appeal transcript, AT 56.47-57.1). (In response, the Crown points to the lack of evidence of any attempts or requests made by Magennis to obtain that permission from A2, or any other efforts made by her to obtain the evidence.)
Reliance is placed by the appellants on the proposition in Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35 ("Ratten") to the effect that "great latitude" should be extended to an accused when determining whether the evidence could have been discovered by reasonable diligence; and on the statement in Gallagher that "the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial" (at 395 per Gibbs CJ). It is submitted that the evidence in question is credible, cogent and plausible (as required for fresh evidence to be admissible - see Ratten at 519 per Barwick CJ; Gallagher at 395-396 per Gibbs CJ and 414 per Dawson J; Mickelberg v The Queen (1989) 167 CLR 259 at 301; [1989] HCA 35).

[84]

Crown's first objection: evidence not "fresh"

As to the objection that this was not fresh evidence based on the likelihood (or possibility) that the evidence could have been discovered with reasonable diligence at an earlier stage, there is some force to the Crown's argument to the effect that, if pubertal development has resulted in the tip of the clitoris now being visible where it was not visible before, then for this development to have occurred in both complainants only in the six months after the conclusion of the trial seems unlikely (particularly given the age difference between the two complainants - two years; it may be noted in this respect that Professor Grover herself observed that the exact timing of pubertal changes is highly variable). The response to this, from the appellants, was to raise an issue in effect as to where the onus lay to establish whether there had been a change in the ability to see the tip of the clitoris prior to the end of the trial (AT 62.17-62.27): GAME: What the answer to question 1 [in Professor Grover's 3 April 2017 report] shows is that one can't be kind of - we can't say that you definitely wouldn't have been able to see these things at the time of trial. What we can say that it's a developmental thing and it does move along the spectrum. But we do say this, if it could have been found before then the prosecution case was in fact, and I don't mean to be critical, but was in fact presented on a misleading basis. So that it actually - it works both ways because if it could have been seen then the prosecution would have been in a position to establish what the true circumstances were and it would have taken away that whole part of the case which I do emphatically say was by far the most potent part of their case. The idea that part of the clitoral head had actually been removed. … [emphasis added]
Reference was also made to the circumstances of conducting such an examination, in effect to submit that it is "no small thing" to be conducting such an examination. In this regard, Mr Dhanji (counsel for the appellants A2 and Vaziri) pointed to the evidence of Professor Grover (at T 241) about the undesirability of examining children. In response, the Crown points out that there is no evidence from A2 that she did not want to have the children examined because of such concerns and the Crown notes that Professor Grover's evidence on this issue was general evidence, not evidence directed to the position of the complainants (AT 156-157).
In any event, whether or not what is now able to be seen on examination of the children might have been able to be seen at some point during the course of, but before the end of, the trial had they been examined at that stage does not change the fact that the examinations conducted in January 2016 have now established that at least one explanation for the lack of visibility of the tip of the clitoris that was left with the jury (namely that it had been removed) has now been established to be incorrect (as the Crown concedes). That takes away the force of the Crown's first objection to the admission of the new evidence.
In addition, in relation to the third question answered in Professor Grover's 3 April 2017 report (whether an inability to retract the clitoral hood or prepuce would affect what could be done to the clitoral head or clitoral glans) the Crown submits that that question could have been put to Professor Grover at trial and hence, again, that this is not fresh evidence.

[85]

Crown's second objection: evidence not relevant

The relevance objection relates mainly to the third report of Professor Grover (dated 3 April 2017) and largely to the first question posed for answer by Professor Grover in that report, which asked whether, if the children had been examined at an earlier time, the results of the examinations would have been the same and whether there was any advantage of delaying any examination. (There was also an objection to what is identified as a misquotation in the 27 January 2016 report, where Professor Grover refers to a "documented finding" by Dr Marks that the "head of the glans was not able to be clearly visualised" - the Crown pointing out that the evidence of Dr Marks (see MFI 82 p 5 and MFI 83 p 6) was that "the clitoral head (glans) was not clearly visualised", but it was accepted that this was a "very small point".)
The Crown notes that the complainants were first examined in 2012 and that the examinations on which reliance is now sought to be placed occurred six weeks after the trial finished. The Crown notes that there was no evidence as to why another examination was not conducted between 2012 and the trial. Thus the submission is that Professor Grover's answer to the first question in the 3 April 2017 report is not relevant: it cannot be used to establish that the evidence is fresh in that with the exercise of reasonable diligence it could not have been discovered earlier (AT 153); and that the answer is speculative because the period of time postulated in the question is one of six months.
Objection is also taken to Professor Grover's evidence as to the second factor that can influence examination findings, namely, the degree of fear, anxiety or understanding of the person on examination (this objection being on the basis that the evidence falls outside Professor Grover's expertise and lacks foundation, as well as on the ground of relevance). The Crown points to Dr Marks' evidence that the complainants were cooperative at the time of her examination of them (AT 153.41-153.42). The same complaint is made as to the reference by Professor Grover to the complainants' cognitive and emotional maturation.
In relation to the opinion expressed by Professor Grover in answer to the second question in the 3 April 2017 report (whether the observations she made at the examinations of the complainants in 2016 change or modify the opinion she expressed at the trial regarding the possible reasons why Dr Marks could not clearly visualise the clitoral glans in ether child), Professor Grover in effect restated her opinion expressed at the trial that it is relatively common to be unable to see the clitoral tip/glans due to labial adhesions and that the inability to see the clitoral tip/glans was not in itself evidence that skin trauma to the clitoral hood or clitoral glans had occurred; and said that her opinion "was confirmed by my subsequent clinical findings, where there was complete resolution of the labial fusion/adhesions and no evidence of skin scarring or trauma". The Crown says that this new evidence does not take things "very far at all" in terms of the global Crown case (AT 154.25).
The Crown emphasises in this regard that Dr Marks did not see any evidence of labial adhesions, though accepting that there could be tightness of the clitoral hood that could affect the ability clearly to visualise the clitoral tip. The Crown submits that the statements that it is common to be unable to see the clitoral glans and that the inability to see it was not in itself evidence that skin trauma to the hood or glans had occurred, were not in controversy between the experts. Hence, the evidence is said to add little to the overall case. (Further, the Crown points out that insofar as Professor Grover confirmed the opinion expressed at trial, she had also there accepted that the original examination did not preclude some small amount of skin tissue having been excised.)

[87]

Crown's application for leave to adduce new evidence

The evidence sought to be adduced by the Crown in the event that the new evidence were to be (as it now is) admitted was an expert report dated 23 October 2017 by Dr Marks. Objection was in turn taken by Mr Game to the admission of that report - first, on the basis of non-compliance with the timetable set for the filing of evidence in these proceedings and, second, in relation to certain paragraphs of the report ([11] and [12]), in effect on the basis that the question there posed of, and considered by, Dr Marks involves a misstatement of the evidence at the trial (AT 59-61). (Mr Dhanji confirmed that the position of A2 and Vaziri was the same as that of Magennis in relation to the evidentiary material.)
As to the first basis of the objection, an affidavit was handed up which went to the procedural steps that had occurred, having regard to the timetable for the filing of any evidence in response to the new evidence on which the appellants seek to rely (affidavit of John Leslie Sutton affirmed 23 October 2017). Apart from noting that the Crown did not file its further expert evidence within the time required, nothing relevantly turns on this complaint. No particular prejudice was identified if the Crown were to be permitted now to rely on Dr Marks' 23 October 2017 report. If the further expert evidence of the appellants is put (as it was) on the basis that it establishes that there was a miscarriage of justice because what was left to the jury contemplated one possibility as being that the tip of the clitoris (which the experts could not then see) had been removed, then the Crown should have the opportunity to respond to that further expert evidence notwithstanding the delay in filing that evidence (particularly in circumstances where there is no complaint as to prejudice by reason of the delay).
As to the second basis for the objection, the complaint was as to the instructions that were given to Dr Marks in relation to the matters addressed at [11] and [12]. The Crown tendered a letter dated 17 October 2017 from the solicitor for public prosecutions to Dr Marks, in which certain questions were posed by reference to the transcript: the first question in respect of C1 (referring to T 1433); the second question in respect of C1 (at T 1437); and the question as to C2 (at T 1444). The question Dr Marks was asked was whether she would give the evidence that she could not exclude that a small amount of tissue could have been removed (and therefore a Type 1 or possibly a Type 4 female genital mutilation had occurred) when she could not rely upon not being able to see the tip of the clitoral glans to form that opinion. Dr Marks adhered to that evidence (Dr Marks' 23 October 2017 report, [12]).
Mr Game submits that little weight should be given to the evidence at [11]-[12] of the 23 October 2017 report, having regard to Dr Marks' evidence at the trial. It is submitted by Mr Game (AT 60-61) that the reference at [11] of Dr Marks' report to excision should in context be read as a reference to a small amount of tissue in each case and (in light of the subsequent evidence at trial at T 1448; T 1449, where the reference to cutting or nicking means the possibility of removal of skin cells), the answer given as to a small amount of tissue could simply mean the removal of skin cells. Further, he notes that the question is posed as a possibility (a "may"). Mr Game refers also to the evidence at T 1433 and 1437 with respect to C1, as well as at T 1440, which he says refers to three possibilities but does not include the possibility of loss of tissue from the clitoral hood (i.e., the prepuce); and to the evidence in relation to C2 at T 1446 to the same effect. His argument is that what is put at T 1433, T 1437, and T 1444 (that being the evidence on which the questions posed to Dr Marks on 17 October 2017 were based) in neither case reflects Dr Marks' ultimate position at T 1440 and T 1446. Hence, the objection to [11] and [12] of the further expert report.
In circumstances where leave has been granted to the appellants to rely on the further expert evidence of Professor Grover and Dr Smith on the basis that this evidence points to a potential miscarriage of justice, leave should be granted to the Crown to adduce the further evidence of Dr Marks. The complaints made by the appellants as to the content of [11] and [12] are matters that can be dealt with in assessing the weight of that evidence.

[88]

Ground 11 - submissions of the parties

Turning then to the import of the new evidence and, in particular, as to whether, on account of that evidence, a miscarriage of justice has occurred, the appellants point to the statement of Gibbs CJ in Gallagher (at 399) that as a "practical guide" the Court will grant a new trial if the jury might have reached a different verdict if the evidence had been available at the trial (see also Ratten at 520 per Barwick CJ). The appellants submit that the evidence demonstrates that a miscarriage of justice has occurred.
The evidence at the trial on the issue as to the visibility of the tip of the clitoris has been summarised above. Relevantly, Dr Marks gave evidence that the clitoral head (or glans) was not clearly visualised in either C1 or C2 on her examination (T 1427.20-1427.21; T 1443.14-1443.15). Dr Marks had looked for the clitoral head but could not see it (T 1427.25; T 1443.17-1443.18). Dr Marks said that the clitoral head is usually covered by the clitoral hood (or prepuce) (T 1429.28-1429.30) and that the clitoral hood is (T 1433.2-1433.6): …quite closely attached to the clitoral head, so you can look and you can separate the outer lips to see it best, you can, but you can't be - to actually move the clitoral hood so as to try and see better, that would be painful, so that is not something that you can do, but [C1] was cooperative. It was possible to look at her.
Dr Marks said that the tightness of the clitoral hood impacts the ability to visualise the clitoral glans in small girls (T 1472.17-1472.33).
Professor Jenkins' evidence was that a possible explanation for being unable to visualise the glans was that it was a normal anatomical variant (T 1398.38-1398.43) - clarified in cross-examination as meaning that one possible explanation for the inability to see the glans was developmental (T 1407.20-1407.22). Professor Jenkins agreed with Professor Grover that one explanation for the inability to see the tip of the clitoris in a prepubescent girl is that the skin is tight and it might simply be that it is difficult to examine (T 1408.4-1408.10).
Thus one possible explanation for the inability to visualise the clitoral head or glans was that the complainants were pre-pubescent (i.e., it was a developmental issue). Another possible explanation given for the inability to see the clitoral tip or glans was if there were labial adhesions or fusions (see Professor Grover's evidence at trial (T 195.15-195.25)), though Dr Marks' evidence was that she saw no labial adhesions.
The Crown at trial maintained that the Crown did not need to establish excision to make out the charge of mutilation but left open to the jury the possibility that there had been a removal of the clitoral glans on the basis of the evidence of Dr Marks that she could not clearly visualise the clitoral glans (and supported by the evidence of Dr X as to the "static" nature of the practice of khatna and that it always involved a cutting).
In the summing up, the jury were told that charge was one of mutilating the clitoris not excising the clitoris (SU 8). However, the appellants place emphasis on the fact that his Honour went on to say: … the Crown does not need to prove that something was cut off. If something was cut off, you may think that would demonstrate or make out a mutilation. If there is a nick or cut, that would be sufficient in law to constitute a mutilation.
The appellants submit that this suggested that the jury could convict if they were satisfied that the tip of the clitoris was removed.
Thus the appellants submit that a basis upon which the jury could have convicted the appellants (and one which was left open by the directions, notwithstanding that the indictment alleged mutilation not excision), was if the jury were satisfied that the tip of the clitoris was removed on the basis of Dr Marks' evidence that she could not visualise the head of the clitoris.
The evidence of what was observed on examination of each of the complainants by Professor Grover, with Dr Smith present, on 8 January 2016 makes clear that the tip of the clitoral glans was by then clearly visible on examination of each of the complainants.
As to her examination findings of C1, Professor Grover said (report dated 27 January 2016 in relation to C1, [7]-[8]): Genital examination revealed normal external genitalia. … The tip of the clitoral glans was clearly visible. The clitoral hood could be only partly retracted. There was no evidence of any scarring or irregularities of the visible central part of the clitoral glans. The inability to fully retract the skin of the clitoral hood was consistent with some persistence of minor labial adhesions. These findings are consistent with the pubertal stage.
Professor Grover's opinion was that ([10]): The examination findings did not demonstrate any evidence of any scarring or previous trauma to the central, visible aspect of the clitoral glans, or to the clitoral hood. The finding of a clitoral hood that could not be fully retracted is consistent with some minor adhesions or agglutination [and] is a normal finding and is commonly associated with relatively poor oestrogen at this stage of puberty.
Dr Smith confirmed in relation to C1 that the "clitoral glans tip was visualised. No scarring or alteration in pigmentation was noted in the region of the clitoris or clitoral hood" (Dr Smith's 25 January 2016 report in relation to C1 at [5]).
As to C2, Professor Grover again reported that the entire clitoral tip was "clearly visible" on examination (report dated 27 January 2016 in relation to C2, [8]). She stated that the "clitoral hood could be easily and fully retracted. There was no evidence of any scarring or irregularities of any part of the clitoral glans or the clitoral hood" ([8]). Dr Smith confirmed in relation to C2 that "[t]he clitoral glans was well visualised with full retraction of the clitoral hood" (Dr Smith's 25 January 2016 report in relation to C2 at [5]).
Accordingly, the evidence now available shows that one basis upon which the jury may have convicted each of the appellants (namely, on the basis that the tip of the clitoral glans was removed) is incorrect.
As to the further report of Dr Marks dated 23 October 2017, the Crown submits that the passages in the letter of instructions to Dr Marks are an accurate reflection of her evidence on the question whether a small amount of tissue could have been excised from the clitoral head. Dr Marks, having rephrased the question put to her, said that she would give the same evidence again on that point. The Crown submits that ultimately Dr Marks' evidence at trial was that she could not exclude the possibility of a small amount of tissue having been removed; and that Dr Marks is adhering to that evidence (AT 155.7-155.8). The Crown accepts that the force of that answer before the jury may have had much less weight had the tip of the clitoris been visible but says that the new evidence does not involve a substantive or gross change in the Crown case. Further, insofar as complaint is made that the question put to Dr Marks was a leading question, the Crown notes that Dr Marks is an expert and hence the force of such a complaint is much reduced.
The Crown submits that there has been no miscarriage of justice occasioned as a result of the discovery that the tip of the clitoris is now visible in both complainants. The Crown submits that the reference in closing submissions to the jury in relation to the removal of the glans would have been assessed by the jury in light of the medical evidence and his Honour's summing up. The Crown emphasises that the Crown case at trial was that a small amount of tissue may have been removed from the clitoris including either from the glans or the head or the hood of the prepuce, a case that the Crown says is unaffected by the new evidence. While the Crown accepts that the possibility of removal of the glans (the clitoral head) is now "closed out", the Crown says that what is not closed out is removal of some tissue from the tip of the clitoris (AT 148.8-148.9).
The Crown points out that the doctors were in agreement that the examination results did not establish one way or another whether the female genital mutilation procedure had been performed. The Crown submits that a significant omission in Professor Grover's new evidence is that Professor Grover does not state that the 2016 examination proves that it was not possible that there was a small amount of tissue excised from the glands (AT 158.4-158.8). The Crown says that this means that it cannot be concluded that, had the new evidence been before the jury, the jury would have entertained a reasonable doubt about the guilt of the accused. The Crown emphasises that the Crown case was that there had been some injury of the clitoris to some extent that included a nick, a cut or the removal of a small amount of tissue. It is submitted that the new evidence does not in any meaningful sense affect the cogency of the Crown case, in circumstances where Professor Grover adheres to her opinion at trial and there is no evidence that her sighting of the glans or clitoral head contradicts Dr Marks' opinion or her own evidence at trial (AT 158.10-158.18).
Thus the Crown's position is that the new evidence is not fresh evidence but that, regardless of how it is characterised, its absence at trial did not cause a miscarriage (indeed, the Crown submits its absence at trial was only significant in relation to the question raised by ground 9 of the grounds of appeal (AT 154.26)). The Crown submits that the new evidence does not make the Crown case so different to that originally presented that the Court would exercise its discretion under s 8 of the Criminal Appeal Act to decline to order a retrial (AT 159.4-159.7). It submits that a retrial would not involve advancing a case on a radically different basis to the one that was originally advanced; that there would be a narrowing of the existing case on the retrial not the running of a different or in any sense inconsistent case. The Crown submits that there was clear and compelling evidence from a range of sources, including the appellants themselves, that amply supported the verdict.
The appellants maintain that if this ground succeeds the Court should quash the conviction and exercise its discretion not to order a retrial.

[93]

Pre-trial ruling - Judgment No 2

In a detailed pre-trial ruling following a hearing on the voir dire (Judgment No 2), the trial judge accepted the Crown's submission that "any physical injury to any extent to the female genital organs, which is done for non-medical reasons" can amount to mutilation for the purposes of s 45 of the Crimes Act and that a "nick or cut to the genitalia for the purposes of FGM [female genital mutilation]" was capable of falling within the concept of mutilation in s 45 (at [110]; [258]); and that the jury should be directed accordingly. (Paragraph references in this section of the reasons refer to Judgment No 2.) His Honour rejected the appellants' contention that "mutilates" in s 45 means "to cut off, destroy, or alter radically a part of the body" (at [111], [258]).
His Honour considered that the ordinary meaning of the word "mutilates" was not to be found by reference solely to dictionary definitions of that term (see [242]) but should take into account the context in which the word appears (including the fact that the word "mutilation" forms part of a concept described as "FGM", at [243]) and the purpose or object of the provision (at [242]). His Honour considered that the word "mutilates" in s 45(1) should be understood "as part of a formula of words (FGM) which itself has now taken on its own dictionary meaning", noting that the term FGM has been described in various ways (at [243]); including as a collective name and as an umbrella term.
In reaching his conclusion as to the meaning of "mutilate", his Honour had regard to the principles of statutory interpretation and relevant provisions of the Interpretation Act 1987 (NSW) as well as a range of material.
His Honour noted, first, that both the long title of the 1994 Act which introduced s 45 of the Crimes Act (the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW) (the 1994 Amendment Act)) and the heading of s 45 referred to "prohibition of female genital mutilation" (a term not used within the body of s 45 itself) (at [142]).
His Honour noted that the long title may be referred to as an aid to construction (at [143]) and that although the heading of the section is not part of the statute (see s 35(2) of the Interpretation Act), the heading of s 45 was available as extrinsic material (s 35(5) of the Interpretation Act) (at [144]). His Honour considered "the words 'prohibition of female genital mutilation' as used in the long title and the heading, to have particular significance in the context of this case" (at [145]).
His Honour next referred to dictionary definitions of the terms "mutilate", "female genital mutilation" and "female circumcision" to which his Honour's attention had been drawn (at [152]-[160]).
The dictionary definitions of "mutilate" to which his Honour referred were as follows (at [152]-[154]): The verb "mutilate" is defined in the Macquarie Dictionary (6th Edn) as: "1. to remove a limb or other important part from (a person or animal, the body, etc.) 2. castrate. 3. to injure, disfigure, or make imperfect by removing or irreparably damaging parts. [Latin mutilates, past participle, cut off, maimed]." "Mutilate" is defined in the Australian Oxford Dictionary, Oxford University Press (1999) as: "1. a. deprive (a person or animal) of a limb or organ. b. destroy the use of (a limb or organ). 2. render (a book etc.) imperfect by excision or some act of destruction." "Mutilate" is defined in the Shorter Oxford English Dictionary (Volume II) 3rd Edn (1991 reprint) as: "1. to deprive (a person or animal) of a limb or organ of the body; to cut off or otherwise destroy the use of (a limb or organ) 2. to render (a thing eg a record etc.) imperfect by cutting off or destroying a part"
His Honour said (at [155]): As the word "maim" was mentioned (in an historical sense at least) in the Macquarie Dictionary definition of "mutilate", the Crown referred to the definition of "maim" in the Macquarie Dictionary which states: "1. to deprive of the use of some bodily member; mutilate; cripple. 2. to impair; make essentially defective. Noun - 3. Rare an injury or defect."
His Honour also noted (at [158]-[161]) that the term "female genital mutilation" had itself acquired a dictionary meaning in the Macquarie Dictionary and the Oxford English Dictionary, which definitions (found in the online versions of those dictionaries) accorded with the view that "FGM" or female genital mutilation "had become a term of art or catch-all term, describing a range of conduct extending from, at the lower end, cutting (including a nick) to, at the more extreme end, infibulation and clitoridectomy".
In that regard, his Honour considered that a focus on a traditional (dictionary) meaning of "mutilates" provided limited assistance only in determining the meaning of the word in its present statutory context (at [163]).
His Honour also said he derived little assistance from consideration of the word in other cases in different contexts in Australia or the United States (at [164]).
His Honour next turned to extrinsic material (from [175]), being satisfied that there was a proper foundation to consider extrinsic material (see s 34 of the Interpretation Act), principally because: there was debate as to whether the "narrow dictionary meaning" of "mutilates" should be adopted, there was ambiguity concerning the term "mutilates", and there were competing submissions as to whether an absurd or unreasonable result would occur if a particular construction was adopted (at [175]). His Honour noted that "ambiguity" was not limited to lexical or verbal ambiguity and syntactic or grammatical ambiguity but extended to circumstances in which the meaning, for whatever reason, was doubtful (R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 at [55] per Spigelman CJ) (see [175]).
His Honour had regard to the 1994 Family Law Council Discussion Paper and Report on Female Genital Mutilation ("Family Law Council Report"), which he noted were relied upon heavily during the second reading debates on the 1994 Amendment Act (at [177]-[186]); as well as the Explanatory Note to the 1994 Amendment Act (at [187]); the Second Reading Speech for the Bill to the 1994 Amendment Act (at [188]-[193]); the legislative debate regarding the Bill (at [194]-[197]); and the legislative debate in 1995 regarding a community education program concerning female genital mutilation that accompanied the introduction of the offence (at [198]).
His Honour also referred to an article by the Director of Research of the Family Law Council, Bill Hughes, entitled 'Female Genital Mutilation: The Complementary Roles of Education and Legislation in Combating the Practice in Australia' (1995) 3(2) Journal of Law and Medicine 202 (at [199]) and to a community education program document entitled "NSW Education Program on Female Genital Mutilation" in use since 2007 as part of a statewide program funded through the NSW Department of Health (at [200]-[205]).
His Honour referred to a review published by the Commonwealth Attorney-General's Department of the position in Australia in relation to female genital mutilation - published in a document entitled "Review of Australia's Female Genital Mutilation Legal Framework" (March 2013) (at [209]-[210]).
Finally, his Honour had regard to the Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW) (the 2014 Amendment Act) (at [103]-[107], [211]); the Second Reading Speech accompanying the corresponding Bill (at [211]-[215]); and the legislative debate on that Bill (at [217]-[220]).
At [181]-[186], his Honour made reference to the Family Law Council Report that was considered at the time of enactment of the 1994 Amendment Act, noting (at [181]) that the Family Law Council at [2.01] had said of the term female genital mutilation: Female genital mutilation. Female genital mutilation 'is the collective name given to several different traditional practices that involve the cutting of female genitals.' It can involve any one of 4 procedures, although Armstrong suggests that 'in reality the distinction between the types of circumcision is irrelevant since it depends on the sharpness of the instrument used, the struggling of the child and the skill and eyesight of the operator'.
At [182], his Honour referred to the explanation given by the Family Law Council of its understanding of the concept of FGM (at [2.02]-[2.07] of the Report). In particular, the Report noted at [2.02] that the term 'female genital mutilation' was used in the Report as embracing "all types of the practice where tissue damage results; for example, damage manifested by bruising, contusion or incision" and that, where a specific procedure was being discussed in the Report, that particular procedure would be specified.
The four types of female genital mutilation referred to in the Report (largely if not wholly mirroring the four types of female mutilation as characterised by the World Health Organization, as explained in a statement by the then Manager of the New South Wales Education Program for Female Genital Mutilation that was before his Honour (see [202])) were (see [182]): 1. Ritualised circumcision, this being the "first, and least severe form", where the procedure may be wholly ritualised or where the clitoris is scraped or nicked (Report at [2.03]). 2. Clitoral circumcision, generally simply called circumcision. It has also been called "sunna". Clitoral circumcision involves the removal of the clitoral prepuce - the outer layer of skin over the clitoris, which is sometimes called the "hood". The glans and body of the clitoris are meant to remain intact (Report at [2.04]). 3. Clitoridectomy or excision, said to be the most common form of female genital mutilation. It involves removal of the glans of the clitoris, but usually the entire clitoris, and often parts of the labia minora as well (Report at [2.05]). 4. Infibulation, which is the most severe form and involves removal of virtually all of the external female genitalia (Report at [2.06]).
His Honour noted (at [183]) that in the course of examining the origins of FGM, the Family Law Council referred to the fact that the Daudi Bohra of India, an ethno-religious minority of half-a-million, was said to practise excision (Report at [2.17], [2.35]).
The Family Law Council recommended the enactment of special legislation concerning FGM, noting the importance of visible laws as a deterrent and as protection and support for women and children wishing to resist the practice, and emphasising that, to be fully effective, legislation should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence.
The Explanatory Note which accompanied the 1994 Amendment Act noted that procedures involving the incision, and usually removal, of part or all of the external genitalia of young females, practised by some groups as a matter of custom or ritual, could lead to various problems including infection, haemorrhaging, dysuria (painful urination), and dysmenorrhoea (painful menstruation) due to pelvic congestion and complications during labour. The Explanatory Note continued: The object of this Bill is to amend the Crimes Act 1900 to make it an offence punishable by a maximum of 7 years imprisonment to mutilate external female genitalia or to aid, abet, counsel or procure such mutilation. An offence under the proposed section will be punishable even if committed outside of New South Wales if the mutilated person is ordinarily resident in New South Wales. It will not be an offence for a doctor to perform a surgical operation that is necessary for the health of a person, for a doctor or midwife to perform a surgical operation on a person who is in any stage of labour or has just given birth or for a doctor to carry out a sexual reassignment procedure on a person.
The Second Reading Speech with respect to the Bill that became the 1994 Amendment Act was delivered by the Hon R J Webster on behalf of the Attorney General (Hansard, Legislative Council, 4 May 1994), and contained the following statements: This bill will make the practice of female genital mutilation a criminal offence in this State. Female genital mutilation, or FGM, is the term used to describe a number of practices involving the mutilation of female genitals for traditional or ritual reasons. The practice involves the excision or removal of parts or all of the external female genitalia. The procedure is usually performed on girls of tender age… The procedure of FGM has no physical benefits and is associated with a number of health hazards. … The practice has been condemned at an international level. The World Health Organisation has recommended that governments adopt clear national policies to abolish the practice… …The Family Law Council of Australia recently released a detailed report on FGM. The council strongly recommended the introduction of legislation to make clear that FGM constitutes a criminal act and a form of child abuse… Of course, in New South Wales FGM could constitute an offence against the general assault and wounding provisions of the Crimes Act. However, the Government is of the view that a clear message should be sent to the community that the practice is not acceptable in this State. Such a message is given more clearly if there is a specific offence which expressly prohibits this conduct... The bill has its roots in the protection of children from a practice that is extremely painful and has no beneficial physical effects.
Turning to the provisions of the Bill, the Minister said: It will be an offence for anyone to perform FGM in this State. The three forms of FGM in order of severity are infibulation, clitoridectomy and sunna. The bill seeks to prohibit all of these various methods of FGM… The provision thus aims to prevent the FGM from being practised at all in this State. Finally, the offence will carry a maximum term of seven years' imprisonment. Such a penalty is necessary for the purpose of deterrence and to reflect the seriousness with which the offence is viewed… As responsible members of the community, we should place our condemnation of FGM beyond doubt…
The Attorney-General, in his speech in reply, emphasised the importance of a community education program to be undertaken in conjunction with the enactment of s 45.
As to the FGM community education program material, his Honour acknowledged (at [200]) that this type of extrinsic material was "in a sense, far removed" from that usually referred to in the process of statutory construction and that material setting out a public servant's understanding of the law had been considered unlikely to assist in the process of statutory construction (referring to Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) at [3.26] ("Pearce and Geddes")). Nevertheless, his Honour noted that s 34(2) of the Interpretation Act provides a non-exhaustive list of extrinsic material which may be taken into account. His Honour considered (at [201]) that it was appropriate to take the community education material into account in order to understand the "so far unchallenged" meaning ascribed to s 45 of the Crimes Act and communicated to the community, including specific parts of the community where FGM was potentially a live question. His Honour said (at [201]) that the material would "at least, provide an understanding of what the community of New South Wales had been led to believe is the scope" of the provision, while acknowledging that that understanding may have been wrong and expressly stating that the construction of the legislation was a matter for the Court.
At [202]-[203], his Honour made reference to a document entitled "NSW Education Program on Female Genital Mutilation", which had been in use since 2007 and contained the following passage: What is Female Genital Mutilation? Female genital mutilation (FGM) also known as female circumcision (FC) denotes the range of procedures involving partial or complete removal of the female genital organs. The World Health Organization recognises four different types of FGM (WHO 1995).
In that document, under a section headed "What is the law in NSW regarding the practice of FGM?", there was the following statement: This means that it is against the law to: • Circumcise a woman, girl or female baby • Remove or cut out any part of the female genital area ('excise') • Stitch up the labia majora or labia minora of the female genitalia (infibulate) • Cut the clitoris or part of the clitoris • Damage the female genital area in other ways.
His Honour emphasised the last two of those items.
Having referred to the statement of the then manager of the FGM community education program, Ms Strong, his Honour said (at [205]) that it may be seen that the community education program which has proceeded in NSW since the 1990s has explained procedures prohibited by s 45(1) of the Crimes Act "in a broad way, by reference to the WHO FGM classification and including, amongst other things, the cutting of the clitoris or part of the clitoris or 'damage' to the female genital area in other ways". His Honour considered that if the narrower construction advanced by the appellants were accepted (i.e., that "mutilates" means "to cut off, destroy, or alter radically a part of the body") there would be "a large gulf" between what s 45(1) prohibits and the conduct communicated to the public by health authorities for many years (at [206]); and, further, said at [208] that "[w]hat has been understood for nearly two decades as a total prohibition on conduct of this sort would be altered radically" should the appellants' narrower construction be accepted.
His Honour noted (at [209]) that in the 2013 "Review of Australia's Female Genital Mutilation Legal Framework", the Commonwealth Attorney-General's Department had noted (at 9) that in all jurisdictions it is an offence to perform "any type of female genital mutilation" and that all definitions (amongst the various States and Territories) "essentially cover the same conduct and are consistent with the definition of female genital mutilation accepted by the World Health Organisation". His Honour observed (at [210]) that the understanding expressed "in a range of official documents" was that the conduct prohibited by s 45 of the Crimes Act encompassed all conduct falling within the WHO FGM classification.
His Honour then referred to the amendments made in 2014 and ministerial speeches in relation to that legislation (at [211]-[220]), before addressing submissions made by the appellants based on syntactical presumptions and by reference to a comparison between the elements of the primary and alternative charges.
His Honour said (at [245]) that the long title to the 1994 Amendment Act and the heading to s 45 of the Crimes Act made clear that the legislation was directed to the prohibition of female genital mutilation - conduct usually performed by non-medical persons operating in circumstances of some secrecy and using instruments not designed for surgery (that characterisation not being used to define female genital mutilation but to place in a practical context the conduct which s 45 is intended to prohibit or eradicate).
His Honour considered that at the forefront of resolution of the issue was that any such procedure will, as a matter of course, be directed to the sensitive and intimate female genital area, usually of young girls, and that to attempt to prescribe what conduct fell inside or outside the terms of s 45 would be fraught with difficulty (at [246]).
His Honour considered the strongest argument in support of the appellants' construction to be the reference by the Minister to the three categories intended to be covered by the legislation, the third being "sunna" (at [247]), but said that a difficulty with this approach was that even the term "sunna" lacks precision, since as used in the Family Law Council Report, it involves removal of the clitoral prepuce or hood (leaving the glans and body of the clitoris intact), which would itself constitute an excision, leaving the question as to what work is to be done by the words "otherwise mutilates" in s 45(1)(a).
His Honour's focus thus turned to the purpose or object of the legislation, and to considering what construction would promote that object (at [249]).
His Honour concluded that the educational material, taken with the other publications in evidence, "serves to demonstrate that the defence construction of the provision would serve to undermine, rather than promote, the intention of the legislature to prohibit FGM procedures" (at [250]). His Honour was satisfied that the construction advanced by the Crown reflected the will of Parliament (at [257]).

[94]

Appellants' submissions

The appellants submit that the trial judge's reasoning process was, in effect, that: the context and purpose of the statute is to prohibit "female genital mutilation"; by reference to a range of extrinsic materials the term "female genital mutilation" extends to any harmful procedure to the female genitalia for non-medical purposes; therefore the term "otherwise mutilates" in s 45 of the Crimes Act must include any such procedure in order to give effect to the purpose of the legislation. They submit that, by so finding, his Honour erroneously rejected the ordinary meaning of the term "mutilates"; ignored the context of the provision; misidentified the purpose of the provision; and placed too much emphasis on extrinsic material. They contend that his Honour expanded the scope of the offence beyond its textual limits, impermissibly seeking to fill perceived gaps in the existing legislation.
The appellants argue that the term "mutilates" in s 45(1)(a) of the Crimes Act as it stood at the time of the alleged offending does not have a legal or technical meaning; and that it is to be construed in accordance with its ordinary meaning (referring to Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 at [22] per Hall J). They point to the use that can be made of definitions in dictionaries to shed light on the meaning to be ascribed to a particular word in a statutory provision (referring by way of example to Manly Council v Malouf t/as Fusion Point (2004) 61 NSWLR 394; [2004] NSWCA 299 at [8] per Handley JA; R v Peters [1886[ 16 QBD 636 at 641) and argue that the various dictionary definitions of "mutilates" set out by his Honour (at [152]-[154]) indicate (as his Honour appeared to accept at [156]) that the ordinary meaning of the term "mutilates" is that something more than the causing of injury is required.
As they did at trial, the appellants contend that the ordinary meaning of the verb "mutilates" supports a construction of the statutory provision as requiring a permanent or irreparable alteration of the body part in question by way of cutting off, destroying, or radically altering it.
Insofar as his Honour concluded that these dictionary definitions provided only limited assistance in construing the term "mutilates" in s 45 of the Crimes Act (see [162]) because the body part in question is a sensitive and intimate area (see [156]), the appellants submit that this is an example of "backward reasoning". They argue the area of the body concerned does not change the ordinary meaning of the term "mutilates" or limit the utility of the ordinary meaning of that word in construing the offence provision. Insofar as his Honour noted that the terms "female genital mutilation" and "female circumcision" have their own dictionary meanings (at [157]-[161]), the appellants point out that neither "female genital mutilation" nor "female circumcision" is a term used in the text of the offence.
The appellants argue that the construction for which they contend is consistent with a number of authorities. First, they point to the decision of Sir James Munby P in B and G (Children) (No 2) v Leeds City Council [2015] EWFC 3 (at [7]-[12]), to which the trial judge referred. Second, the appellants note the decision of the Californian Appeal Court in People v Bullington (1938) 27 Cal App 2d 396 at 400-401, where the Court found that the term "mutilate" in the context of the human body required maiming or disfigurement and that "rendering imperfect" was not sufficient. Third, they refer to Deutscher v The State of Nevada (1979) 601 P 2d 407 at 413, where the jury had been directed that the term "mutilate" means "to cut off or permanently destroy a limb or essential part of the body, or to cut off or alter radically so as to make imperfect". Fourth, the appellants submit that in State of Arizona v Michael Joe Murdaugh (2004) 97 P 3d 844, it was held that an act of post-mortem mutilation required the purposeful severing of body parts.
Reference is also made to the use of the term "mutilation" in s 268.47 of the Criminal Code 1995 (Cth) (where it is an element of the "war crime - mutilation" for a person to subject one or more persons to "mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons"); and to the use of the term "mutilation" in s 67 of the Australian Securities and Investments Commission Act 2001 (Cth), which prohibits the concealment of books relevant to an investigation.
The appellants accept that the long title of the Act introducing the offence and the heading of the offence provision are relevant to determining the context and purpose of the provision (s 35(5) of the Interpretation Act), but emphasise that the term "female genital mutilation" is not used to define the scope of the offence in s 45(1)(a) of the Crimes Act and should not supplant the language of the statute itself.
The appellants place significance on the words preceding "otherwise mutilates" (namely "excises" and "infibulates"). They invoke the noscitur a sociis doctrine and the ejusdem generis rule, arguing that the phrase "otherwise mutilates" must be read in the context of those other two words, both of which they say have a common and dominant feature - namely, permanent or irreparable damage and injury of a high order. (His Honour considered these syntactical presumptions at [225]-[233] and did not find them of assistance. In particular, his Honour did not accept that, as a matter of construction, there is a genus to be found in the phrase used in s 45(1) with a common characterisation of causation of serious injury (see [231]).)
The appellants argue that both context and the ordinary meaning of the verb "mutilates" indicate that the phrase "otherwise mutilates" requires permanent or irreparable damage to the female genitalia. It is submitted that the term "mutilates" is, properly construed, not a term of "expansion" in s 45(1)(a) of the Crimes Act (his Honour's conclusion at [232]). The appellants argue that the gravity of the kind of injury connoted by the words "excises" and "infibulates" is in stark contrast to the construction of "mutilates" as meaning "any injury to any extent" (referring in this context to the decision in Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at [309] per Crennan, Kiefel and Bell JJ, and emphasising the need to focus on the immediate context of the words). The appellants argue that his Honour's construction renders otiose the other operative words of the offence provision.
It is submitted that, had the legislature intended any injury to fall within the provision, it would have been a simple matter for that to have been expressly stated (referring by way of example to other offences under the Crimes Act, such as those in ss 315A, 322, 326, and 545B, and to other legislation where such a formula can be found).
Another contextual feature to which the appellants point is that the term appears in an offence provision (with what is now, following the amendments in 2014, a very high maximum penalty). Reference is made to the recognition by the majority (Hayne, Heydon, Crennan and Kiefel JJ) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [57] ("Alcan") that the fact that a statute contains penal provisions is part of the context and relevant to the task of construing the Act in accordance with settled principles. In this regard, the appellants also invoke the principle that penal provisions ought be construed strictly in the face of ambiguity (referring to Scott v Cawsey (1907) 5 CLR 132 at 154-155 per Isaacs J; [1907] HCA 80; The King v Adams (1935) 53 CLR 563 at 567-8; [1935] HCA 62; Beckwith v The Queen (1976) 135 CLR 569 at 576 per Gibbs J; [1976] HCA 55. They argue that the fact that the term "mutilates" appears in an offence provision militates strongly against it being given a broad construction which is not supported by its ordinary meaning.
Some significance is placed on the fact that s 45 appears in Division 6 ("Acts causing danger to life or bodily harm") of Part 3 ("Offences against the person") of the Crimes Act, in which division are to be found the wounding and infliction of grievous bodily harm offences; whereas the offence of assault occasioning actual bodily harm is contained in Division 8 ("Assaults"). It is submitted that this reinforces the contention that the term "otherwise mutilates" requires permanent or irreparable damage to the female genitalia.
As to the purposive approach and use of extrinsic material made by his Honour, while the appellants accept that the purpose of the provision is a matter to be considered in the first instance when interpreting the provision (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ; s 33 of the Interpretation Act), they emphasise that the term "female genital mutilation" was not used to define the offence in s 45 of the Crimes Act, nor was a specific definition of "female genital mutilation" included in the Act. They argue that it is the conduct prohibited by the text of s 45 of the Crimes Act that defines what is considered to be female genital mutilation in NSW.
Insofar as his Honour considered the purpose of the provision to be critical, if not determinative, of the construction to be placed on "mutilates", the appellants point to the caution sounded by the majority in Alcan (at [51]) that "[f]ixing upon the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves"; their Honours there quoting Gleeson CJ in Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [6] as to the controlling aspect of the text of the legislation there being considered.
The appellants submit that a penal provision should not be given broader scope than its language permits in circumstances where the conduct falls outside the language but the Court is of the opinion that it was not included through inadvertence of the legislature (referring to Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186 per Jordan CJ; Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [63] per McHugh J).
As to the usefulness of statements in second reading speeches and parliamentary speeches in determining the purposes of an enactment, the appellants refer to Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [13] per Spigelman CJ, [162] per Mason P. The appellants point to the recognition in that decision, by Spigelman CJ at [12], that statements of intention as to the meaning of a word in a second reading speech or parliamentary speech are usually not capable of assisting with the ascertainment of the meaning of the provisions. They argue that the Family Law Council Report, the second reading speeches, and the parliamentary debates regarding the introduction of the subject offence in the present case are of limited use in determining the scope of the offence but that, in any event, the material does not support his Honour's construction of the term "mutilates".
In this regard, it is noted that the second reading speech for the introduction of the offence in s 45 of the Crimes Act refers to prohibiting female genital mutilation and that the practice of female genital mutilation is described as involving "the excision or removal of parts or all of the external female genitalia", with the Minister then saying that: "It will be an offence for anyone to perform FGM in this State. The three forms of FGM in order of severity are infibulation, clitoridectomy and sunna. The bill seeks to prohibit all of these various methods of FGM". As they did at first instance, the appellants place significance on the reference there made to the three forms of female genital mutilation, in circumstances where the Family Law Council Report had referred to four types of procedures. The appellants argue that the fact that reference was made only to the last three of these procedures in the second reading speech evinces an intention of the legislature to prohibit only the most serious forms of female genital mutilation and not the fourth category (ritualised circumcision). They submit that the second reading speech and explanatory note, read with the Family Law Council Report, suggest that ritualised circumcision (unless it actually constitutes mutilation in the ordinary sense of the word), was not intended to fall within the offence provision in s 45(1)(a) of the Crimes Act.
As to his Honour's reference to the FGM community education program, the appellants accept that the Court may have regard to material not in existence at the time of the enactment of the provision in question in order to determine the mischief with which the provision was intended to deal (see Australia and New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 at 291-292 per Hill J) but they submit that extrinsic material should not be taken into account where it merely indicates a view as to the meaning of the legislation which is already in existence at the time the view is expressed (referring to Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241 per Mason CJ and Gaudron J; [1988] HCA 5). The appellants submit that, despite what his Honour said at [200], his Honour's conclusions indicate that he regarded the FGM community education program material as important in confirming his construction of the term "mutilates". This, it is submitted, was erroneous and an impermissible approach to statutory construction (i.e., to conclude that a provision has a certain meaning on the basis of the meaning ascribed to the provision in educational material that accompanied the introduction of the provision). The appellants argue that the material could not properly be relied upon to extend the meaning of the term "mutilates" beyond its textual limit.
As to the Commonwealth Attorney-General's Department's 2013 review, the appellants again argue that extrinsic material that merely indicates a view of the meaning of legislation already in existence should not be taken into account when construing the scope of the provision, and hence maintain that the comments made in the Attorney-General's Department's review could not properly be relied upon to support an extended meaning of the term "mutilates" in s 45 of the Crimes Act.
Finally, insofar as his Honour also relied upon the amendments made to s 45(1)(a) of the Crimes Act in 2014 by the 2014 Amendment Act (introducing an offence of removing a person from NSW to have female genital mutilation performed on them in s 45A of the Crimes Act and increasing the maximum penalty for the offence in s 45(1)(a) to 21 years imprisonment), the appellants point out that, unlike the offence in s 45(1)(a) of the Crimes Act, the offence in s 45A uses the term "female genital mutilation". They note that the phrase "female genital mutilation" is defined in s 45A(4) for the purposes of s 45A as "an act referred to in section 45(1)(a), the performance of which would be an offence against that section if performed in the State".
The appellants submit that the capacity of these amendments, and of the second reading speeches and legislative debates that introduced them, to elucidate the meaning of "mutilates" in s 45(1)(a) of the Crimes Act is limited in circumstances where this material was not in existence at the time of the relevant enactment. Further, they argue that the amendments indicate that the term "female genital mutilation" is to be determined by what is prohibited by s 45 of the Crimes Act, and not by some wider understanding of that term.
The appellants thus submit that the term "mutilates" in s 45 of the Crimes Act should be given what they contend is its ordinary meaning - namely, irreparable and serious damage to a body part - and that reference to the term "female genital mutilation" in the heading of the provision or other extrinsic material cannot properly be relied upon to conclude that the offence in s 45 of the Crimes Act applies to all forms of female genital mutilation as described by the World Health Organization (including any nick or cut to the clitoris).
Reference is made to Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 (at [38]) where the High Court noted that "[p]urposive construction does not justify expanding the scope of a criminal offence beyond its textual limits", and to the caution sounded against a departure from the terms of the statute in order to accommodate the purpose of the Act and/or adopt matters referred to in the extrinsic material (referring by way of example to Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318; [2012] NSWCA 296 at [40] per Bathurst CJ; Pearce and Geddes at [2.13], citing: Luke v Inland Revenue Commissioners [1963] AC 557 at 577; MacAlister v The Queen (1990) 169 CLR 324 at 330; [1990] HCA 15; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 per McHugh J; [1997] HCA 53).
Emphasis is placed on the following passage in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; [1987] HCA 12: The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
The appellants argue that his Honour construed the term "mutilates" by reference to the term "female genital mutilation" and the purpose of the provision in a way that went beyond the textual limits of the offence (at [240]-[258]); and say that in so doing his Honour gave the purpose of the provision determinative significance in the interpretation of the provision, effectively inserting the term "female genital mutilation" into the offence provision and interpreting that term by reference to reports regarding the various forms of the practice. Thus it is argued that his Honour's approach to statutory interpretation was erroneous and meant that the meaning ascribed to the term "mutilates" in s 45 of the Crimes Act was far too broad.

[95]

Crown submissions

The Crown argues that the error in the appellants' approach is to equate the first of the respective dictionary definitions of "mutilates" (see [368] above) with the "ordinary meaning" of the word "mutilates", without taking into account important aspects of the context in which the word "mutilates" is used in s 45 of the Crimes Act.
The Crown points to the observation of Leeming JA in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [81] ("2 Elizabeth Bay Road") that "dictionary definitions specify a range of meanings, rather than the particular meaning of a word in its context". The Crown notes that each of the dictionaries cited by the appellants sets out multiple definitions of the word "mutilates"; those additional definitions (see Judgment No 2 at [152]-[154]), including meanings such as "injure" or impair", which the Crown submits would cover less extreme acts such as cutting or nicking. The Crown further argues that any type of cutting or nicking of the clitoris would necessarily "impair" it or "render [it] imperfect", given that the clitoris comprises very dense nerve tissue (referring to the evidence of Dr Marks at trial that "if you disrupt any nerve, it can have the effect of decreasing sensation from that nerve after that, of losing sensation altogether, but it can also have the effect of altering the sensation, so making it hypersensitive").
The Crown also points to the fact that "female genital mutilation" is a recognised term that has itself acquired a dictionary definition, referring to the Macquarie Dictionary definition of "female genital mutilation" as: the practice of cutting the clitoris, either as a ritualistic nick or by clitoral circumcision or by clitoridectomy, sometimes with infibulation. The Crown argues that the inclusion in the dictionary of the term "female genital mutilation" confirms that the word "mutilates" has an ordinary meaning in the context of ritualistic procedures performed on the genitalia of a female which differs from the ordinary meaning of the word "mutilates" in other contexts (such as the mutilation of a corpse or the mutilation of a book). (Pausing there, the Crown accepts that there is some difficulty in relying on a dictionary definition that may not have been in existence at the time the offence provision was introduced.)
The Crown argues that the proposition that "mutilates" has a particular meaning in respect of procedures performed on the female genitalia is supported by the other material referred to by the trial judge, such as the Family Law Council Report and the World Health Organization inter-agency statement entitled "Eliminating Female Genital Mutilation". The Crown places emphasis on the fact that in the Family Law Council Report the term "female genital mutilation" (referred to as "FGM") was described as a "collective name" which involved "any one of four procedures" and was defined to "embrace all types of the practice where tissue damage occurs, for example, damage manifested by bruising, contusion or incision". The Crown notes that the World Health Organization similarly defines female genital mutilation to include four types of procedure - Type 4 including "all other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterisation".
The Crown argues that the heading to the offence provision and the long title of the 1994 Amendment Act, which first introduced s 45 of the Crimes Act, may be used to inform the context of the provision and the purpose of Parliament in enacting the provision. The Crown argues that the Second Reading Speech and Explanatory Memorandum to the 1994 Amendment Act (to which reference may be made to ascertain the purpose and context of the enactment, but only in the exceptional circumstances set out in s 34 of the Interpretation Act) similarly demonstrate that the words "otherwise mutilates" in s 45 should be understood "within the FGM context" (Crown written submissions, [27]) and should not be narrowly construed. The Crown argues that these extrinsic materials demonstrate that s 45 is to be read in the context of recognised FGM terminology.
For example, the Crown notes that the Explanatory Memorandum to the 1994 Amendment Act stated that "procedures involving the incision, and usually removal, of part or all of the external genitalia of young females are practised by some groups as a matter of custom or ritual… The object of this Bill is to amend the Crimes Act to make it an offence punishable by a maximum of 7 years imprisonment to mutilate external female genitalia…". Similarly, in the Second Reading Speech to the 1994 Amendment Act, it was stated that the purpose of the bill was to make the practice of "female genital mutilation" a criminal offence.
It is submitted that the Minister's explanation that "Female genital mutilation, or FGM, is the term used to describe a number of practices involving the mutilation of female genitals for traditional or ritual reasons" squarely places the context of s 45 within the discourse of FGM terminology (Crown written submissions, [30]). The Crown notes that the Minister also expressly referred to the Family Law Council Report recommending that legislation be introduced to make it "clear that FGM constitutes a criminal act and a form of child abuse" (noting that the Family Law Council defined FGM to include "all types of the practice where tissue damage occurs, for example, damage manifested by bruising, contusion or incision").
The Crown submits that in view of the extrinsic materials, it is clear that the context in which the word "mutilates" is used is "within the FGM context" and that the Second Reading Speech further indicates that the purpose of the provision is the "protection of children" from this practice.
Insofar as the appellants submit that the Second Reading Speech does not support the construction of "mutilate" as covering the infliction of any form of injury to the female genitalia because when the Minister addressed the Bill, he observed that the "three forms of FGM in order of severity are infibulation, clitoridectomy and sunna", the Crown argues that this does not evince an intention to exclude the fourth category of FGM specified in the Family Law Council Report, namely ritualised circumcision.
First, the Crown points to uncertainty as to what is meant by "sunna" (as the trial judge observed in his ruling: Judgment No 2 at [248]). The Family Law Council Report described the term "sunna" as involving the removal of the clitoral hood or prepuce. On this interpretation, the practice of "sunna" would in itself amount to excision (of a most serious kind). The Crown submits that if the only forms of genital mutilation covered by s 45(1)(a) were infibulation, clitoridectomy and sunna (meaning removal of the clitoral hood or prepuce), then the words "otherwise mutilates" would have no work to do. The Crown submits that the structure of s 45 and, in particular, the word "otherwise" indicates a legislative intention that the word "mutilates" should cover a broader range of conduct than the words "excises" and "infibulates".
The Crown further argues that the appellants' submission in this regard moves beyond an appropriate use of extrinsic material to determine the context and purpose of the provision, by attempting to use the statements of the Minister as a statement of the "meaning" of the term "mutilates". The Crown notes that the Second Reading Speech clearly indicated that the purpose of the provision was to bring into effect the recommendations of the Family Law Council and contained no indication that there was any disagreement with any of the recommendations of the Family Law Council (including the recommendation that all forms of FGM be prohibited by legislation).
The Crown submits that the trial judge correctly found that the protective purpose of the provision would be impeded by a narrow construction (that limited the word "mutilates" to injuries that involve "permanent or irreparable alteration of the body part in question by way of cutting it off, destroying it or radically altering it"), noting that the Family Law Council observed that "in reality the distinction between the types of circumcision is irrelevant since it depends on the sharpness of the instrument used, the struggling of the child and the skill and eyesight of the operator" (see Judgment No 2 at [181]). The Crown argues that the recognition that there is a substantial margin of error in the performance of FGM procedures supports the construction that the word "mutilates" in s 45(1)(a) refers to a procedure that causes any injury to the clitoris to any extent for non-medical reasons.
As to the submission by the appellants that his Honour's construction of the phrase "otherwise mutilates" renders otiose the words "excises" and "infibulates" in s 45 (that submission invoking the syntactical presumptions of noscitur a sociis and the ejusdem generis rule), the Crown contends, first, that the words "excises" and "infibulates" are terms which are commonly used in the FGM context, thus providing the context for the word "mutilates", and, second, that the ejusdem generis rule does not readily apply (and is here reversed) in the context where the word "otherwise" appears in the relevant statutory phrase.
The Crown argues that, rather than the final word "mutilates" being part of a genus established by the words "excises" and "infibulates", the inclusion of the phrase "or otherwise" makes "mutilates" the umbrella term. The Crown accepts that the conduct involved in excising and infibulating is clearly caught by the various definitions of mutilation, but argues that they are appropriately extracted as "stand-alone terms" as they are well-recognised words in FGM terminology.
The Crown argues that the words "excises" and "infibulates" have defined work to do in s 45(1)(a), by expressly prohibiting those definitive acts, and that the phrase "otherwise mutilates" has readily identifiable work to do as incorporating all other forms of female genital mutilation; which accords with a purposive view of the special crime of female genital mutilation.
The Crown argues that because the word "mutilates" in s 45(1)(a) of the Crimes Act must be read in the context of FGM terminology, comparison between the text of that provision and the language of other offences within the Crimes Act, such as public justice offences, offences of intimidation and adoption offences, is not apposite; and that the appellants' contention that the legislature would have used the terminology adopted in such provisions if it intended a broad construction to be adopted fails to recognise the unique purpose and context of the enactment of the offence of female genital mutilation. It is submitted that the legislative provisions to which the appellants refer are framed in different legislative contexts and provide no meaningful assistance in placing the words "otherwise mutilates" in their proper context of legislation prohibiting the singular crime of female genital mutilation.
The Crown similarly submits that the appellants' submission based on the Division of the Act in which s 45 is located fails to appreciate that interference with the clitoris is an offence of substantial physical injury due to the ramifications of even a minor cutting of this area of very dense nerve tissue.
As to the consideration by his Honour of the FGM community education program material (which post-dated the enactment of s 45 of the Crimes Act), the Crown argues that it is permissible to have regard to such material in order to ascertain the mischief intended to be addressed by the provision, particularly in circumstances where education was an integral part of the scheme established by the legislature and was expressly referred to in the Second Reading Speeches. It points to the fact that the FGM community education program had been in existence for many years when, in 2014, the legislature significantly increased the maximum penalty for female genital mutilation and created the separate offence of removing a person from the State for the purposes of female genital mutilation (without otherwise altering the language of the provision).
In any event, the Crown argues that neither the FGM community education program material nor the 2014 Amendment Act was an essential aspect of the process of statutory construction undertaken by his Honour; rather, those materials merely confirmed his Honour's conclusion as to the purpose and context of the provision.
As to the appellants' contention that the inclusion of cosmetic procedures such as genital piercings within the construction adopted by his Honour of s 45 of the Crimes Act is suggestive of error, the Crown submits that his Honour took a pragmatic approach to this submission (by observing (at [253]-[254]) that authorities may exercise judgment to limit prosecutions to the established categories of FGM as discussed in the widely published and readily available FGM community education program). The Crown acknowledges that a construction of criminal legislation that relies upon prosecutorial discretion "is to be avoided", but submits that the concern expressed by the appellants (that the provision, on his Honour's construction, would unintentionally criminalise cosmetic procedures performed on a consenting adult) is one that arises even on the appellants' construction of the provision (since a genital piercing would fall within the construction of "mutilate" contended for by the appellants as it would permanently and radically alter the female genitalia).
In relation to the appellants' reliance on the principle of statutory interpretation that penal statutes should be construed strictly, the Crown points to the statement by the majority of the High Court in Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [39] that such a rule is one of last resort and that "[p]enal statutes are to be construed in accordance with ordinary rules of construction".
The Crown submits that when his Honour referred (at [156]) to the "bare" dictionary meaning ("unassisted by context or statutory purpose") as supporting the appellants' construction, his Honour was not rejecting the ordinary meaning of the word "mutilates" but, rather, was observing that the word has different meanings in different contexts. The Crown submits that his Honour correctly held that, in the context of the offence of female genital mutilation, the word "mutilates" encompasses any injury to any extent of the clitoris.

[97]

(iii)-(iv) Definition of clitoris/summing up

These sub-grounds of appeal can be considered together.
The appellants submit that his Honour erred in construing the word "clitoris" as used in s 45(1)(a) of the Crimes Act and in directing the jury with respect to the meaning of the word "clitoris". (His Honour received written submissions from the parties on this issue before the trial: Judgment No 2 at [259]-[271], but expressed only a provisional view on the issue. Judgment references in the paragraphs which follow are references to Judgment No 2.)
Prior to the trial, the Crown had submitted that the prepuce (also known as the clitoral hood) should be considered as a part of the clitoris (see Judgment No 2 at [261]). As the prepuce is (or is situated at) the fusion of the labia minora and the clitoral glans, the Crown accepted that it could also be considered part of the labia minora. The Crown submitted that the term "clitoris" should be given a wide meaning. Defence counsel had submitted that the prepuce does not form a part of the clitoris and that the jury should be accordingly directed.
His Honour set out various dictionary definitions of "clitoris" and "prepuce" (at [263]), including a number of definitions drawn from medical dictionaries. It is not necessary here to set them out. It is, however, pertinent to note that, broadly speaking, "clitoris" was defined separately from "prepuce".
His Honour noted that the defence submissions had referred to the legislation on the prohibition of female genital mutilation in Scotland which refers, among other parts of the female genitalia, to the prepuce of the clitoris separately from the clitoris (see [265]).
His Honour observed that, to some extent, the issue of the definition of clitoris was moot as the definitions and medical reports that were tendered served to demonstrate that if the prepuce is not part of the clitoris then it is part of the labia minora (at [267]), both these terms being used expressly in s 45(1)(a) of the Crimes Act. Thus, if the prepuce were not a part of the clitoris then it would be caught by the term "the whole or any part of the labia majora or labia minora" (though his Honour accepted that if this construction operated it might be necessary for the Crown to consider an amendment to the indictment, which referred only to mutilation of the clitoris).
Nonetheless, his Honour approached the meaning of the word "clitoris" in the offence provision "with a broader understanding of the context in which it is used, and the purpose or object of the provision" (at [268]).
His Honour concluded that the "clitoris" and the "prepuce of the clitoris" were "so closely interrelated that the prepuce may be regarded as part of the clitoris although, for technical purposes, it may also be regarded as part of the labia minora" (at [270]).
His Honour in due course directed the jury in the following terms (SU 9): But what the Crown has to prove, for you to convict Kubra Magennis on this count, is that she performed an act which mutilated the clitoris. The clitoris … includes the clitoral hood or prepuce. So this charge is one that requires identification of a particular part of the anatomy.
His Honour further directed the jury that if they were satisfied beyond reasonable doubt that a nick or cut had been caused to part of the genital area but were not satisfied beyond reasonable doubt that the nick or cut was made to the clitoris, then the alternative count (of assault occasioning actual bodily harm in company) would arise for consideration (SU 10), but that the lesser charge would only arise for consideration if the accused were acquitted on the counts of mutilation.

[98]

Appellants' submissions

The appellants argue that the distinction between the different parts of the external female genitalia (the clitoris, labia majora, and labia minora) to which reference is made in s 45(1)(a) of the Crimes Act is of significance not only in that there was a lesser charge on the indictment in relation to the areas other than the clitoris; but also for the purposes of evaluating other aspects of the evidence - in particular, the expert evidence regarding the degree of bleeding and/or pain associated with cuts to these parts of the genitalia and their ability to heal effectively.
The appellants point out that the definitions of the terms "clitoris" and "prepuce" cited by his Honour all distinguished between the two pieces of anatomy. They point to Dr Marks' report dated 22 July 2013 in which Dr Marks distinguished between the clitoral head and the clitoral hood (or prepuce), saying that: "[t]he external part of the clitoris called the clitoral head (glans) is covered by the clitoral hood (prepuce)" (at [15]); and noting that the clitoral hood and the clitoral head are located between the labia majora and the mid line (at [16]). They also point to Dr Marks' evidence at trial, where Dr Marks said that the clitoral hood was a fold of skin that protects the clitoral head (T 1430.16-1430.20). They note that the gynaecologist called to give evidence by the Crown (Professor Jenkins), when asked at trial whether he would define the prepuce as being capable of being considered part of the clitoris (T 1399.44-45), had answered: "I guess I'm not an anatomist. As a gynaecologist I would see them as separate structures, but they are very close to each other" (T 1399.46-47).
The appellants maintain that the term "clitoris" in s 45 of the Crimes Act should be construed in accordance with its ordinary anatomical meaning, which does not include the clitoral hood or prepuce; and that the jury should have been so directed. (They note that the only witness to suggest that the prepuce was part of the clitoris was their expert, Professor Grover.)

[100]

Relevant principles

There was no real dispute between the parties as to the relevant principles of statutory interpretation.
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, the High Court (Brennan CJ, Dawson, Toohey and Gummow JJ) said, of the approach to statutory construction at common law, at 408: It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth) [the Commonwealth equivalent to s 34 of the Interpretation Act 1987 (NSW)], the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. (footnotes omitted)
In a number of subsequent decisions, the High Court has emphasised the importance of focussing on the text of the provision itself (see, for example, Alcan; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [33]-[34]; and Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [14]). In Alcan, the majority (Hayne, Heydon, Crennan, Kiefel JJ) stated (at [47]): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)
Recently, in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936, Kiefel CJ, Nettle and Gordon JJ summarised the position as follows (at [14]): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense [citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2]. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Thus, although statutory construction must begin with a consideration of the text, the statutory text must be considered in its context, that context including legislative history and extrinsic materials (see, for example, the approach adopted in Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15).
The Interpretation Act also governs the process of statutory interpretation, as the trial judge noted in the course of his reasons in Judgment No 2. Section 33 relevantly provides that: In the interpretation of a provision of an Act …, a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act …) shall be preferred to a construction that would not promote that purpose or object.
Section 34 sets out the circumstances in which material not forming part of the legislation in question may be considered either to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act) (see s 34(1)(a)) or to determine the meaning of the provision if the provision is ambiguous or obscure; or if the ordinary meaning leads to a result that is manifestly absurd or unreasonable (s 34(1)(b)). The purpose for which extrinsic material can be used was addressed by the majority of the High Court in Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [43]-[44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In the present case, it is relevant (having regard to the submissions made as to the reference in the Second Reading Speech to the 1994 Amendment Act to the "three forms" of female genital mutilation) to note that in Re Bolton; Ex parte Beane, Mason CJ, Wilson and Dawson JJ said (at 518): The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.
Similar caution was expressed in Harrison v Melhem by Spigelman CJ (at [12]): Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, "capable of assisting in the ascertainment of the meaning of the provisions" within s34(1) of the Interpretation Act 1987 [(NSW)]. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not presently able to envisage. However, his Honour went on to say (at [13]) that: Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief.
In the same case, Mason P similarly said (at [162], [172]): Statements in Parliament, even by ministers during the second reading debate, will … seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another. … I do not consider the Interpretation Act 1987 or the common law of statutory interpretation in Australia to permit resort to a minister's speech to guide the meaning of legislation beyond identifying its purpose (Nominal Defendant v GLG Australia Pty Ltd [228 CLR 529; [2006] HCA 11] at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). However broadly the notion of "purpose" or even "intent" is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appear[s] to be giving to it.
In Amaca Pty Ltd v Novek [2009] NSWCA 50; (2009) Aust Torts Reports 82-001, Campbell JA referred to Harrison v Melhem and added (at [78]) that: Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material "is capable of assisting in the ascertainment of the meaning of the provision". The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision involved in the case being decided and the particular item of extrinsic evidence involved in the case being decided. Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister's understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision. (emphasis in original)
As to the use of extrinsic materials in principle in this case, we accept that there is an argument that there is ambiguity in the meaning of the word "mutilates" in s 45(1)(a) of the Crimes Act, so as to permit reference to extrinsic material that is "capable of assisting in the ascertainment of the meaning of the provision" (see s 34(1) of the Interpretation Act), including such material falling within the non-exclusive categories set out at s 34(2) of the Interpretation Act. Such ambiguity potentially arises through the range of meanings that may (depending on the context) be attributable to the word "mutilates". However, we consider that there is force to the appellants' argument that the meaning of "mutilates" is not informed by the object of mutilation. In particular, while the sensitivity of the clitoral area might make it easier to mutilate than, say, another anatomical body part, the ordinary meaning of the verb must be the same whatever be the object of the verb.
In fact, the ambiguity or doubt in the present case as to the meaning of "mutilate" comes not from reference to textual or contextual considerations but from the disparity between an apparent intention of the legislature to adopt all the recommendations of the Family Law Council Report (including the prohibition of ritualised circumcision) and the statement by the Minister in his Second Reading Speech identifying "the" three forms of female genital mutilation (not including the fourth, i.e., ritualised circumcision). While ambiguity can be drawn not just from syntactical and contextual matters, there is some incongruity in relying upon the Second Reading Speech to identify both ambiguity and purpose.
That said, where (as the dictionary definitions to which the parties took his Honour indicate) there is a range of meanings that are attributable to the verb, the context in which it is used must be of relevance and the context here is excision, infibulation or otherwise mutilation of a sensitive part of the female anatomy.
In our view, the better view is that reference to extrinsic material is permissible to determine the context of the offence provision, including the purpose or mischief sought to be addressed, whether or not there is ambiguity in the provision.

[101]

Categories of material to which the trial judge had regard

We turn then to the material to which his Honour had regard in his pre-trial ruling.
First, the long title of the Act and heading of the offence provision (Judgment No 2 at [96]-[102], [142]-[145]). In particular, his Honour concluded (at [145]) that "the words 'prohibition of female genital mutilation' as used in the long title and the heading … have particular significance in the context of this case".
It is uncontroversial that reference may be had to the long title to the Act and the heading at least for the purpose of ascertaining the mischief to which the legislation is addressed. However, that simply sets the context as being that of female genital mutilation. It rather begs the question of what is meant by "mutilation" in that context.
Next, as to the use of dictionary definitions in construing an undefined word or phrase in a statute, Mason P noted in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 (at [28]): A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.
See also the observations by Leeming JA in 2 Elizabeth Bay Road (at [81]) to which reference has already been made.
More recently, in TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68, Leeming JA (with whom Beazley P agreed and Emmett AJA concurred): If I may respectfully say so, what clearly emerges from White J's collection of judgments in which the word "unlikely" has been explained in comparable and less comparable contexts is merely that it has been held to denote different meanings in different contexts. That conclusion means merely that "unlikely" is no different from most English words. It also illustrates the inutility of dictionary definitions in construing a legal text (in this case, a clause in an insurance policy). Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in ascertaining the precise meaning the word bears in a particular context. As much was recognised by a unanimous High Court (and earlier by Learned Hand J) in Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23] when observing that a mature and developed jurisprudence does not "make a fortress out of the dictionary"; see also 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 at [81]. Although the distinction between the dictionary definition of a word and its legal meaning is not often well understood, it is clear that dictionaries are no substitute for the interpretative process, as was observed by R McDougall, "Construction of contracts: The High Court's approach" (2016) 41 Aust Bar Rev 103 at 115; see also Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [68] (Robertson J).
As noted above, the appellants submit that the dictionary definitions indicate that the ordinary meaning of the term "mutilates" requires something more than the causing of injury, and support a construction requiring a permanent or irreparable alteration of the body part in question by way of cutting it off, destroying it, or radically altering it. They point to his Honour's observation (at [156]) that, confined to its bare dictionary meaning (unassisted by context or statutory purpose), "the better view may be that more is required than the causing of injury".
Insofar as the Crown places weight on the reference to "injure" in [3] of the Macquarie Dictionary (6th ed, 2013) definition (see [368] above), this must be read in the context of the whole phrase "to injure, disfigure, or make imperfect by removing or irreparably damaging parts" (emphasis added). The natural reading of that sentence is to refer only to injury by "removing or irreparably damaging parts".
The Crown refers, in support of his Honour's construction of "mutilates", to the reference to "impair" contained within the definition of "maim" (see above, [369], quoting from his Honour's judgment at [155]). However, in our view the dictionary definition of "maim" is not of any real assistance in considering the meaning of the verb "mutilate" in s 45(1)(a) (notwithstanding the reference to "maimed" in the Macquarie Dictionary definition). In Cozens v Brutus [1973] AC 854 at 861, Lord Reid said: When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching. No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. Few words have exact synonyms. The overtones are almost always different.
That caution is apposite in the present case.
What is clear is that one cannot limit the "ordinary meaning" of "mutilates" to the first of the various dictionary definitions (i.e. to the removal of a limb or organ), as the Crown submits the appellants' submissions in effect seek to do, in circumstances where there are other ordinary (and equally potentially applicable) dictionary meanings (such as "injures … or renders imperfect by … irreparably damaging parts" - to use the third of the Macquarie Dictionary definitions as an example; or "render … imperfect by excision or some act of destruction", to use the second of the Australian Oxford Dictionary definitions). True it is, that the third of the Macquarie Dictionary definitions refers to some injury or imperfection made by the removal or "irreparable" damage of parts, which imports some degree of permanence or quality of irreplaceability. However, the second of the Australian Oxford Dictionary definitions refers to imperfection rendered by "excision or some act of destruction" (which latter term would be apt to encompass the use of a cutting implement to remove tissue from the genital area). Hence the difficulty of reading the dictionary definitions as some form of statutory prescription of the meaning of the verb "mutilates" in the context of s 45(1)(a) of the Crimes Act.
The reference to the dictionary definitions is, in our view, ultimately of limited assistance because of the breadth of meanings there encompassed (and having regard to the caution that has been consistently expressed in the authorities as to the use of dictionary definitions).
By way of example, it can readily be accepted that a genital piercing would render the area of the piercing imperfect by irreparably damaging it (assuming the piercing was not able to be removed without causing at least some form of scarring or tissue damage). It might also be said that the area is rendered imperfect in such an example by the act of destruction itself (the piercing of the skin or tissue by the relevant implement). Similarly, there is a sense in which even a small cut must damage irreparably that part which is actually cut (even though the evidence is that the remaining surface of the genital area may heal relatively quickly due to the nerve-rich density of the tissue in that area) because the part that is cut is no longer intact and presumably the skin cells in that area remain cut (and hence removed) forever. In this regard, on appeal, the Crown submitted that any type of cutting or nicking the clitoris would necessarily "impair" it or "render [it] imperfect" given the clitoris comprises very dense nerve tissue, referring to the evidence of Dr Marks at trial that "if you disrupt any nerve, it can have the effect of decreasing sensation from that nerve after that, of losing sensation altogether, but it can also have the effect of altering the sensation, so making it hypersensitive" (T 1434).
By contrast, as adverted to above, the appellants submit that the area of the body concerned cannot alter the ordinary meaning of the term "mutilates" or limit the utility of its ordinary meaning in construing s 45(1)(a). Rather, they say, it may be easier to mutilate a more sensitive body part (AT 9.15; 163.42; 171.11ff).
Even leaving aside the contentious issue of nerve damage (contentious in the sense that, although the appellants appeared to accept that cutting which caused permanent nerve damage would be within the meaning of "mutilates" on the definition for which they contend, they emphasised that any notion of nerve damage was speculative in the present case and was not part of the Crown case), there is a very real sense in which any cut (or nick), as his Honour accepted, might arguably amount to a mutilation of the clitoris for the purpose of s 45(1)(a). Thus, even accepting that the notion of permanent injury or imperfection (in the sense of irreparable damage of body parts) forms part of the meaning of "mutilates" for the purpose of s 45(1)(a) (as opposed to imperfection caused by an act of destruction), on one view even a superficial nick or a cut (which necessarily leads to the destruction of those skin cells which are cut) could have that effect.
In our view the trial judge was not impermissibly suggesting (at [156]) that the ordinary meaning of "mutilates" would differ according to the object of the conduct said to amount to mutilation. What his Honour was saying was that, in the context of this particular offence, what would amount to an injury or imperfection within the meaning of s 45 must take into account the sensitivity of the body part. The appellants' concession that it may be easier to mutilate a more sensitive body part is telling, in that there is no reason that a nick or a cut might not cause injury or imperfection of the requisite kind (whether that be by irreparably damaging the part that is nicked or cut, as per the Macquarie Dictionary definition or by the act of nicking or cutting being itself an act of destruction, as per the Australian Oxford Dictionary definition).
More problematic in our opinion is his Honour's reference to certain dictionary definitions of the term "female genital mutilation" (see particularly at [243]). As the appellants point out, that term is not used in s 45(1) of the Crimes Act. Further, as noted during the hearing of this appeal (AT 83.25), there is nothing before the Court to indicate that the definition of "female genital mutilation" was included in the versions of the dictionaries current at the time s 45(1) was introduced. In those circumstances, reference to such a definition is not of assistance in determining the meaning of "otherwise mutilates" in s 45(1)(a). Nor does the notion that "female genital mutilation" has become a familiar or collective or umbrella term (Judgment No 2 at [243]). The question is what is meant by "mutilates" in a statutory provision that does not use the term "female genital mutilation" as part of the description of the offence.
The text of the offence provision, in our view, particularly the use of the verb "mutilates" rather than simply "injures" or "damages", suggests that more than the causing of an injury is required, such as impairing or rendering imperfect the body part that is mutilated. The fact that s 45(1) is concerned with sensitive body parts which may more readily be impaired or rendered imperfect does not warrant expanding the meaning of "mutilates" to encompass any injury to any extent. One would not, in ordinary parlance, refer to a superficial graze as mutilation.
Whether in a particular case a body part to which s 45(1) applies is impaired or rendered imperfect is a matter to be proved by evidence to the criminal standard. The potential evidentiary difficulties which might be faced in cases where, for example, there is nerve damage due to a cut to the clitoral hood leading to loss of sensitivity or to hypersensitivity but no scarring, do not justify a departure from the need to demonstrate some actual impairment or imperfection.
Section 45(1) refers not only to the clitoris but also to the labia majora and labia minora. While it may be the case that the clitoral head is more readily impaired or rendered imperfect due to the concentration of nerve tissue, the same may not be true of the clitoral hood (or prepuce), the labia majora and labia minora. This weighs against departing from the ordinary meaning of "mutilates" on the basis of the special sensitivity of the body parts concerned.
There was debate in the course of oral argument as to the proposition that something more must be required than just the "shedding" of skin cells, which can occur without any form of cutting (and might presumably occur even in the symbolic procedure that the defence argued took place here). It is not necessary to decide that issue (i.e., whether a wholly ritualised procedure is caught by s 45) in circumstances where what occurred, on the Crown case, was the nicking or cutting of the clitoris.
Turning then to the other extrinsic materials to which his Honour had regard, the FGM community education program material, which post-dated the enactment of s 45, in our view is not of assistance in interpreting the meaning of "or otherwise mutilates" within that provision. While in Australia & New Zealand Banking Group Ltd v Commissioner of Taxation, Hill J (Northrop and Lockhart JJ agreeing) considered (at 291) that regard might be had to an explanatory handbook issued after the relevant statutory provision had obtained royal assent to indicate the mischief to which it was directed, in Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3, a majority of the High Court (French CJ, Hayne, Kiefel and Bell JJ) said (at [33]): There is no basis at common law or otherwise for resorting to a ministerial statement, about the effect of a law in force at the time of the statement, as an aid to the interpretation of that law.
The same must be true of views expressed in a document published by a government department. (See, to like effect, Hunter Resources Ltd v Melville at 241 (Mason CJ and Gaudron J); R v Aubrey (2012) 82 NSWLR 748; [2012] NSWCCA 254 at [36]-[37] per Macfarlan JA; Johnson and Davies JJ agreeing.)
Accordingly, to the extent that the FGM community education program material referred to above purported to state the effect and meaning of s 45(1) of the Crimes Act, it could not assist the Court in determining the correct interpretation of the sub-section, nor could the fact that such a view was communicated to the community, even over a lengthy period of time, have any bearing on its interpretation. Nor, again, is this material of assistance for a more limited purpose (such as identifying the context, purpose or mischief) in the present circumstances where there is a body of extrinsic material, identified earlier, which pre-dated s 45(1) and was considered as part of the process of enacting the provision (even if such reference were, in principle, permissible in accordance with the approach taken in Australia & New Zealand Banking Group Ltd v Commissioner of Taxation).
For the same reasons, the Attorney-General's Department's 2013 review of Australia's FGM legal framework (see above at [376]), which purports to state the effect and meaning of FGM legislation in Australia, is of no assistance in construing s 45(1). Finally, for completeness, while the article of Bill Hughes (see above at [375]) explains the relationship between the FGM community education program and legislative approaches to female genital mutilation, it is not of assistance in the more focussed task of determining the meaning of s 45(1).
As to the subsequent legislation (the 2014 Amendment Act) and the second reading debates concerning its introduction, referred to by his Honour at [103]-[108], [211]-[220], that legislation increased the maximum penalty for an offence against s 45(1) from 7 to 21 years; omitted s 45(2), which had read "An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State"; and inserted into the Crimes Act s 45A, which was relevantly as follows: 45A Removing person from State for female genital mutilation (1) A person is guilty of an offence if the person takes another person from the State, or arranges for another person to be taken from the State, with the intention of having female genital mutilation performed on the other person. Maximum penalty: imprisonment for 21 years. … (4) In this section: female genital mutilation means an act referred to in section 45(1)(a), the performance of which would be an offence against that section if performed in the State.
The 2014 Amendment Act received assent and commenced on 20 May 2014. This post-dates the conduct charged in the present case, which is alleged to have occurred between October 2009 and October 2012. In his reasons, his Honour considered that ss 45 and 45A must be read together (at [212]), and therefore considered it permissible to rely upon the 2014 Amendment Act and associated debates. However, that principle of construction does not apply to the interpretation of the unamended section in relation to conduct occurring before the amendments were enacted. In Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; [1995] HCA 44, Brennan CJ, Dawson and Toohey JJ said at 463: The principle [in s 15 of the Acts Interpretation Act 1901 (Cth)] is that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. … [T]hat section is declaratory and represents the modern approach to the construction of an amended statute. The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment. (emphasis added) (footnotes omitted)
McHugh and Gummow JJ similarly noted (at 479): [T]he better view is that under modern practice it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole. (emphasis added) (footnote omitted)
As Campbell JA set out in R v Sieders (2008) 72 NSWLR 417; [2008] NSWCCA 187 at [118]-[128] (James and Johnson JJ agreeing), there are at least some circumstances in which it is legitimate to use an amending statute as an aid to construing the statute it amends in its unamended form. A well-known example is that contained in Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70; [1946] HCA 13, where Dixon J considered the appellant's liability to pay rates under a statute in its unamended form where an express qualified exemption for the appellant was later introduced by amending Act. His Honour said (at 86): Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile.
In Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 at 212, the Full Federal Court said: There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts. (citations omitted)
In our view, little if any assistance can be drawn from the 2014 Amendment Act and surrounding debates. In the present case, the new section (s 45A) adopts by reference the pre-existing offence as defined in s 45(1)(a) and applies it to new circumstances. In so doing it does not alter or clarify the ambit of the conduct proscribed in such a way as to shed light on its pre-existing meaning. The position can be contrasted with a case such as Commissioner of Stamps v Telegraph Investment Co Pty Ltd, where the need for the substantive exemption created by the amending Act to have work to do was taken to shed light on the scope of the pre-existing obligation to pay rates.
The legislature's use of "female genital mutilation" as a defined term in s 45A, and the debates surrounding the introduction of the 2014 Amendment Act, are at most additional contextual guides as to the purpose of s 45 and the mischief sought to be addressed. They do not, and cannot, alter the meaning of the words contained in s 45(1)(a) itself, which is the primary focus of the exercise for this Court. As with the FGM community education program material discussed above, this material is not of assistance in performing this task given the range of contemporaneous material which is available for this contextual purpose.
Ultimately, the factor that carried the most weight in his Honour's construction of "or otherwise mutilates" in s 45(1)(a) was the identification of the mischief that the legislation was intended to address (and hence the purpose of the introduction of s 45): that being the subject of the Family Law Council recommendations, which the legislature was prepared to adopt in their entirety. Those recommendations made clear that, in order to protect against the risk of harm from even "ritualised" procedures, all forms of mutilation of the female genital area (the clitoris, the labia majora and the labia minora) (and even wholly ritualised circumcision) should be prohibited (the risk involved in modes of ritualised circumcision being as to matters such as the competence of the person performing the procedure).
It is permissible to refer to the Family Law Council material to shed light on the context in which s 45 was introduced, including its purpose and the mischief that it sought to address.
This material undoubtedly demonstrates that the recommendations of the Family Law Council were to prohibit all forms of conduct falling within the rubric of "female genital mutilation". However, there remains some doubt as to whether the fourth form of female genital mutilation (encompassing wholly ritualised circumcision) was intended by the legislature to be included in the legislation. The potential ambiguity of "sunna" does not address the difficulty that there was reference only to three forms of female genital mutilation and on no view could "sunna" be seen as encompassing ritualised circumcision.
It can readily be accepted that "mutilates" should be construed in the context of the 1994 Family Law Council recommendations; and that those recommendations would have informed the legislature's purpose in enacting s 45. However, that general purpose cannot extend the scope of the conduct prohibited by the actual words used in the Act. As noted above, the umbrella term "female genital mutilation" was not used by the legislature in s 45(1) and that phrase cannot supplant the words actually used.
There are a number of difficulties in relying upon the description of "ritualised circumcision" as a form of female genital mutilation in the extrinsic material when construing s 45(1)(a). To do so risks supplanting the language used by the legislature with the umbrella term "female genital mutilation" and entering into the impermissible territory of relying on extrinsic material to provide the meaning of that umbrella term rather than the context and purpose of the provision in question. Moreover, to the extent that this material is considered, as his Honour noted (at [247]), in the Second Reading Speech to the 1994 Amendment Act reference was only made to three categories intended to be covered by the legislation and not to ritualised circumcision or the fourth category as such. While there was no indication in the speech of any disagreement with the Family Law Council's recommendation that all forms of female genital mutilation be prohibited, ultimately, the Family Law Council Report, Explanatory Note, and Second Reading Speech (and the long title or heading to s 45), while shedding light on the context and purpose of s 45(1)(a), do not in our view permit the conclusion that "otherwise mutilates" was intended to encompass all forms of injury or any injury to any extent.
What is required is some form of more serious injury than, say a superficial shedding of the skin cells or a nick or cut that leaves no visible scarring and cannot be seen on medical examination to have caused any damage (let alone irreparable damage) to the skin or nerve tissue.
Finally, as to the syntactical presumptions invoked by the appellants and considered by his Honour (at [225]-[233]), in particular the ejusdem generis and noscitur a sociis rules, the noscitur a sociis principle is that the meaning of a word may be determined from the words accompanying it; the ejusdem generis rule is a sub-principle of this principle (see Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152 at [13] per Spigelman CJ), namely, that general matters are constrained by reference to specific matters.
As adverted to above, the appellants submit that the term "otherwise mutilates" should be read in the context of the words preceding it, which they say have a common and dominant feature (namely, permanent or irreparable damage to the female genitalia and injury of a high order). The appellants also contend that the trial judge's wide construction of "mutilates" (as encompassing any injury to any extent) renders the preceding terms otiose, which is to be avoided on the basis that an alternative construction which allows the words of the provision to work together is available.
The Crown submits that (as the trial judge held), the effect of the word "otherwise" is not to enlarge an existing genus by adding new things of like kind; but rather, is to demonstrate a different and wider genus to which all prohibited acts belong (and see Judgment No 2 at [229]-[230], his Honour there citing Windeyer J in Crowe v Graham (1968) 121 CLR 375 at 388; [1968] HCA 6; and Sugerman P in Purdon v Dittmar [1972] 1 NSWLR 94 at 98-99). Hence, on the Crown's view, rather than "mutilates" being part of a genus established by the specific action words "excises" and "infibulates", the inclusion of "or otherwise" makes "mutilates" the umbrella term. While the conduct involved in excising and infibulating is caught within the definitions of mutilation, they are appropriately extracted as stand-alone terms as they are well-recognised words in "FGM" terminology.
The Crown's submission on this issue should be accepted. The recognised categories of female genital mutilation include excision and infibulation. Their express prohibition in s 45(1) is consistent with the legislature's desire expressly to outlaw these specific practices. The term "or otherwise mutilates" is an umbrella term intended also to capture other forms of mutilation that are to be prohibited.
Insofar as the appellants also referred to the well-known principle of statutory construction that penal provisions ought to be construed strictly in the face of ambiguity, while the Crown referred to Aubrey v The Queen where the High Court said (at [39]) "that rule is one of last resort. Penal statutes are to be construed in accordance with ordinary rules of construction", ultimately it is not necessary to resort to this principle of construction, as the meaning of "or otherwise mutilates" can be determined using ordinary principles of construction.

[106]

Legal principles

There was no dispute as to the principles applicable when considering an appeal against conviction on the ground that the verdict was unreasonable (see SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14] ("SKA"), the majority there affirming the test set out in M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ; [1994] HCA 63). SKA was reaffirmed in GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 at [20] per Bell, Gageler, Nettle and Gordon JJ.
The question is whether on the whole of the evidence the Court is satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, the question not simply being as to the sufficiency of the evidence but also as to its quality (see SKA at [11]). The question is one of fact "which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'" (M v The Queen at 492-493 (footnotes omitted); see also SKA at [14]).
The Court is thus required, in relation to this ground, to make an independent assessment of the evidence both as to sufficiency and quality to determine if it was open to the jury to conclude beyond reasonable doubt that each of the appellants was guilty (Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 at [31]).
As to the advantage that the jury had of seeing and hearing the witnesses give their evidence, the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 has emphasised (at [65]-[66]) that, given the centrality and importance of the jury's role in the administration of the criminal justice system, setting aside a jury's verdict on the ground of unreasonableness is a serious step "not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial", there referring to what was said in M v The Queen at 494-495, to the effect that a doubt experienced by the appellate court is a doubt that ought to have been experienced by a jury and that: It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In the present case, the appellants submit that none of the considerations in M v The Queen that would suggest that deference ought to be given to the jury's verdict are present in this case and that this Court ought to have a doubt about the appellants' guilt for the offences even applying the lower test for "mutilates" that accords with how the jury were directed.

[107]

Appellants' submissions

At the outset the appellants note that the Crown case on "mutilates" was put on the basis that there had been either a cut or a nick to the clitoris of each of the complainants, or that a part of the clitoris had been removed; and that the jury were told that the Crown did not need to prove that something was cut off, but that if something was cut off that that might demonstrate or make out a mutilation.
The appellants argue that there was a danger that the jury might find them guilty by reason of their membership of the Dawoodi Bohra cultural/religious community and that the jury might reason that, because members of this community practise female genital mutilation or a particular type of female genital mutilation, then Magennis and A2 must have engaged in the alleged conduct. The appellants submit that there was also a danger in the focus placed on the term khatna as opposed to what acts were actually contemplated by that term.
The appellants submit that the video recordings of the JIRT interviews are of assistance in determining the weight to be placed on the statements made by the complainants in them and, in particular, they argue that the video of C2's interview shows that quite limited weight could be placed on her statements made in the interview. The appellants emphasise that neither C1 nor C2 volunteered in the JIRT interview that they had been cut on their private parts; rather, any evidence of this came as a result of a series of leading questions from the interviewer.
The appellants maintain that the reliability of these statements is highly questionable.
As to C1, it is noted that she agreed that khatna was "like a type of cutting to the private part" and then said it happened to her, later referring to "a little cut there" (see [35] above); but in cross-examination at the trial she said that it felt like a pinching although it was "most likely it was cut, though it - I remember a sort of pinching but don't really know, though" (see [169] above). The appellants argue that the instrument C1 saw in Magennis' hand could have been forceps (see [168] above), consistent with Magennis' case that these were used as part of a symbolic procedure. It is noted that C1 did not say whether the cut (or pinch) was made to her clitoris or another part of her genitals (hardly surprising, given her age both at the time of the procedure and the later interview and trial).
As to C2, it is said that her evidence was an affirmative response to a question asking whether she had a cut on her private parts in circumstances where she could not identify the private parts on the body chart and there was a dearth of detail in the evidence surrounding this occurrence. (The appellants also argue that the issues raised under ground 4 of the grounds of appeal substantially diminish any reliance that could be placed on her evidence.)
The appellants note that neither C1 nor C2 gave evidence that the pain was significant or long-lasting; nor did they give evidence that there was bleeding. It is submitted that, when taken with the evidence of the medical experts, this undermines the proposition that the clitoris of either C1 or C2 was cut. (It is not necessary in light of the new evidence to consider whether, as the appellants say, this also undermines the proposition that the tip of the clitoris was excised.)
To the extent that the Crown relied upon similarities between the account of C1 and the account of C2 to support coincidence reasoning in respect of whether there had been a cut to the clitoris of either complainant, the appellants argue that there was little similarity in the complainants' accounts by reason of C2's inability to recount what occurred, and say that the similarities were limited to affirmative answers (obtained as a result of leading questions) that they had received a cut to their private parts (in their own home or in A3's home) while lying on the bed. The appellants argue that this did not support in any significant way (if at all) the contention that it was improbable that the events had occurred coincidentally and were explicable only by reason that Magennis had cut the clitoris of each. (The defence position in this regard is not that it was not coincidental, but that it involved a symbolic ceremony, not a cutting of the clitoris.) The appellants refer to the issues raised under ground 6 of the grounds of appeal in this context.
In summary, the appellants point to the limitations on the complainants' evidence: they did not volunteer that their private parts had been cut, C1 could not exclude a "pinching", C2's evidence was "highly problematic", and there was no evidence from C1 and C2 as to what was cut or whether something was excised or not. The appellants note that a number of areas of the complainants' evidence were not explored by the Crown; for example, what exactly was felt, the nature of the pain, the length the pain lasted, whether they felt dabbing of blood or whether they felt pain urinating in the days that followed.
As to the medical evidence, the appellants emphasise that the medical examinations of the complainants revealed that the external female genitalia were normal in each; and that none of the medical experts excluded the possibility that there had been no cut. Emphasis is placed on the fact that the prepuce of each of C1 and C2 was normal and that there was no evidence of scarring (on the prepuce or the clitoral glans) of C1 or C2. It is noted that while Dr Marks' evidence that a scar might not necessarily be left gave rise to the possibility that the medical evidence was neutral on the subject of whether there was a cut, Professor Jenkins' evidence was to the effect that a scar would be expected even if that scar were to be barely visible.
As to Dr X's evidence (the admission of which is the subject of ground 3 of the grounds of appeal), this has been summarised above (see from [256]).
The appellants point out that Dr X did not regard herself as an expert on female genital mutilation. They argue that her evidence regarding the nature of khatna and the way in which this evidence could be used to establish the appellants' guilt were subject to significant limitations: particularly, her lack of knowledge or understanding as to the different parts of the clitoris and the female genitalia, which affected what conclusions she could make in respect of her own experience and the research she conducted; but also certain language limitations (that there was no Gujarati word to distinguish between the various parts of the female genitalia); and the fact that her opinions regarding khatna were limited temporally and geographically to the 1950s and 1990s in India. The appellants point out that Dr X's evidence regarding the static nature of khatna was equivocal and that at times she acknowledged the limitations of her opinions. Other matters that it is said diminished the weight to be placed on her evidence include the fact that she (as a person who had been subjected to a genital procedure of some kind when young) had not been medically examined and was unable to say precisely where she was cut; and that, when conducting her research, she did not ask the women with whom she spoke where they were cut. It is submitted that even though the jury were told that the clitoral hood is part of the clitoris, the limitations of Dr X's evidence on this subject remained relevant and bore upon what use could be made of the medical evidence in reasoning to guilt.
It is submitted that Dr X's evidence (that khatna in the Dawoodi Bohra community involved excision of the tip of the clitoris) was of extremely limited weight due to her limited expertise and inability to distinguish the specific anatomical structure and because her evidence ultimately was that in the khatna procedure it was the prepuce that was excised not the clitoris, whereas the medical evidence was that the prepuce on both complainants was normal. Lack of reports of bleeding or subsequent pain are emphasised in this regard.
The appellants say the medical evidence did not support the Crown case that there had been a nick or a cut - at best it was neutral on the subject. They argue that the contention that there was a nick or a cut to the clitoris was contrary to the evidence of Dr X, which was to the effect that the khatna procedure involved removal of the tip of the clitoris and that this was always the nature of the procedure across time and across communities.
As to the telecommunications intercept material, Mr Game first points out that, in her closing address to the jury, the Crown prosecutor relied upon certain parts of the telephone intercept material to corroborate or support Dr X's evidence or the medical evidence (referring by way of example to what was said at T 2171; 2175). It is submitted that to do so would mean using evidence that was inadmissible in the case against Magennis.
As to the alleged admissions recorded in that intercept material, and material said to give rise to consciousness of guilt reasoning (referring to the conversations at Tab 4 Ex AA (see [56]-[60] above); Tab 5 Ex AA, ([74]-[75] above); Tab 7 Ex AA ([77]-[81] above); Tab 11 Ex AA ([87]-[90] above); Tab 19 Ex AA ([98] above); Tab 20 Ex AA ([99]-[108] above); Tab 32 Ex AA ([124] above); Tab 33 Ex AA ([126] above); Tab 34 Ex AA ([125] above); Tab 45 Ex AA ([147]-[149] above); and Tab 50 Ex AA ([162] above), the appellants argue that this material had to be assessed in light of the issues in the case, namely, that there was no dispute that there was a procedure performed on the complainants; the issue was whether this involved injury to the clitorises of the complainants. The alleged admissions are said to be equally consistent with a mistaken belief that the procedure Magennis had performed was illegal, notwithstanding that no cut was made to the clitoris of each complainant, as is the appellants' willingness to embrace the Africa checking story. For Magennis, it is said that the telephone conversations indicate that at the time she was very anxious, stressed and worried about the investigation. It is submitted that this may also have explained some of the statements that she made and in particular her willingness to embrace the Africa checking story.
It is submitted that this material did not advance the Crown case beyond a general acknowledgement of wrongdoing in the context of knowledge that there were law enforcement and child protection agencies involved in the investigation. Even if adverse inferences could be drawn against the appellants in respect of the offence contrary to s 45(1) of the Crimes Act, it is submitted that this evidence did not establish a nick or cut beyond reasonable doubt.
As to the evidence of the two interpreters as to what the term khatna means (see above at [252]; [254]-[255]), the appellants accept that the meaning of the word khatna was of some importance to the trial. However, they say the evidence of the two interpreters as to the meaning of the word khatna did not necessarily exclude the application of that word to a ritualistic ceremony. They say that the evidence of the meaning of the word did not set out with any precision what the procedure actually entailed. To the extent that Mr Panwala suggested that it related to a cutting of the private part, the appellants say it is arguable that he did not have the expertise to give that evidence and that little weight should be placed on it.
Leaving aside the possibility of excision of the clitoris (which it is now established did not occur), it is submitted that the jury could not be satisfied beyond reasonable doubt on this evidence that Magennis performed a cut or a nick to the clitoris of either C1 or C2.
As to the evidence in respect of the FGM community education program, the appellants say this did not advance the Crown case in respect of the alleged admissions or post-offence conduct on the part of Magennis because there was no evidence that she saw the material or participated in the education program. The appellants say the evidence suggested that the reach of the program was somewhat limited (referring to T 766-775). Further, it is submitted that, even if Magennis had seen this material, she may have regarded the position in NSW as prohibiting the performance of ritualistic procedures for cultural reasons and prohibiting assault. It is thus submitted that this evidence supported her case in relation to the alleged "admissions" and willingness to embrace the Africa checking story.
As to the evidence of family or police witnesses, the appellants note that A1 was not present at the procedure and there was no evidence that he knew what the procedure actually entailed; and argue that the evidence of the other family witnesses did not support the Crown case.
For Magennis, it is submitted that the allegation put to Magennis in cross-examination was that she performed a procedure that involved (a non-specific) injury to the clitoris (T 1629-1630, 1638, 1654). It is argued that this was not sufficiently particular to comply with the rule in Browne v Dunn (1893) 6 R 67, nor was it sufficiently particular to permit a submission to be put to the jury as to either an excision (now no longer relevant) or a cut or nick to the clitorises notwithstanding that both would entail injury to the clitoris. The appellants submit that the nature of the injury alleged was important to an assessment of whether particular pieces of evidence could be accepted or not and argue that the Crown case was apt to obscure this.
It is submitted that the evidence left open the very real possibility (not having been eliminated by the Crown beyond reasonable doubt) that what was performed on the complainants was a symbolic procedure; and therefore that it was not open to the jury to find the appellants guilty of the offence contrary to s 45(1)(a) of the Crimes Act.

[108]

Crown submissions

The Crown points to the evidence at trial, much of which is summarised above, but which also included (as against A2) a text message sent to A2 from an unknown person (Ex AA tab 1) around the time of C2's seventh birthday in August 2012, saying "hope her thing went well". (It was the Crown case that this was a reference to C2's khatna procedure performed around that time as she approached her seventh birthday.)
The Crown submits that the defence case of symbolic khatna, led through Magennis and A3 and A5, was thoroughly discredited as a result of Magennis' "disingenuous account of it and her compromised credibility" (Crown written submissions, [411]), coupled with the compromised evidence of A3 and A5. It is submitted that Magennis was a defensive and combative witness, whose credibility was compromised before she gave evidence due to her willing involvement in the fabrication and publication of the false Africa checking story. The Crown notes that no independent evidence of the "skin sniffing the steel" ceremony was adduced in the defence case, and that Dr X had never heard of such a ceremony (Crown written submissions, [412]).
The Crown says that the evidence of C1 was central to its case. It is submitted that, over the course of the JIRT interview, C1 demonstrated intelligence and confidence with language; and was able to cope with difficult questions about her family, explain complex emotions and understand the temporal connections between significant events. The Crown submits that C1 presented as an accurate historian, and her interview could not have failed to impress the jury in their assessment of her overall credibility and reliability.
As to the topic of khatna, the Crown submits it is clear that C1 did not want to talk about khatna. The Crown submits that C1's initial reluctance to disclose information about khatna was consistent with the evidence led in the trial from Dr X that khatna was a secretive topic that must not be discussed outside the Dawoodi Bohra community; and that this was also the tenor of the telephone intercept and listening device conversations between A2 and family members.
The Crown emphasises that C1's evidence on this issue was not led in a vacuum. There was extensive evidence explaining khatna provided by the telephone intercept material, Dr X's evidence, and the interpreters' evidence. The Crown submits that C1's JIRT interview also provided compelling support for the charges against the appellants with respect to C2, particularly as to who was present and when and where it happened.
The Crown places emphasis on the conversation between C1 and A1 on the afternoon of 29 August 2012 in the car, occurring just after A1 had told Vaziri that he would ask C1 what she had told the investigators, which the Crown says was an important demonstration of C1's credibility, reliability and fortitude under pressure, as well as providing a further basis for the jury to reject the truth of the evidence of A1.
As to C2's interview, this is considered in ground 4. The Crown submits it provided support for the Crown case.
As to A5, the Crown argues that her evidence was hopelessly contradictory and utterly unconvincing (Crown written submissions, [436]) and that the falsity of A5's version was exposed when she referred to the purpose of each procedure as a "check-up" throughout her evidence, notwithstanding that the Africa checking story was completely disavowed by A2 at the trial, and that A5 explained the change in her evidence (to symbolic khatna) as a "slip of the tongue" (see [206] above). The Crown points to the falsity of A5's claim that she had only heard of khatna in the context of males, having regard to her recorded conversation with A1.
The Crown argues that it was well open for the jury and this Court to dismiss A5's account of what happened to C1 and C2, and that A5 offered no support to the defence "symbolic khatna" case; rather, her lack of credibility actively undermined the defence case and supported the Crown case.
As to A3 it is submitted that she was also a poor witness, prepared to lie in support of the appellants' case (Crown written submissions, [440]).
The Crown submits that A3 was a significant contributor to the Africa checking story; that her knowledge of the real nature of khatna was exposed by the text message and the telephone call with A2 on 3 September 2012; and that A3's explanation of the ceremony being symbolic khatna was undermined by the telephone intercept material. It is submitted that A3's demeanour in the witness box was combative and defensive and her attempts to explain away the telephone intercept material were not plausible (Crown written submissions, [443]).
As to A1, the Crown says he was a principal participant in the Africa checking story; played a dominant role in the events which unfolded after he and A2 learnt that police were investigating allegations of khatna in the Dawoodi Bohra community; put significant pressure on C1 to recant her version of events to police and to adopt the Africa checking story; and was also a party to the telephone conversation with A2 in the JIRT waiting room where A1 and A2 discussed which part of the female genitalia was cut in khatna as their community practised it. (The Crown submits that A1's insistence in his evidence at trial that he was speaking on that occasion about traditional khatna, not what was done to C1 and C2, was unbelievable.)
As to A2, the Crown says that A2 admitted her clear knowledge that a cut was inflicted on the clitoris of each of C1 and C2 in the JIRT waiting room conversation. It says that this goes directly to proving A2's knowledge of both elements in dispute, namely mutilation and that it was of the clitoris. Further it is submitted that this conversation disproves the defence case that what was performed on C1 and C2 involved merely the placing of steel items near the child's vulva with prayers (as described in the "skin sniffing the steel" ceremony).
It is submitted that the jury was provided with multiple examples of A1's willingness to lie - both on oath and out of the witness box - and were able to use this evidence to reject his account that what had happened was merely a symbolic ceremony.
As to the FGM community education program, the Crown submits that given the wide and long-standing campaign in NSW and given that Magennis was a registered nurse in NSW for many years, there is an inference strongly available that she must have known that female genital mutilation was illegal in NSW.
The Crown notes that, in her ERISP, A2 agreed with the police interpretation that khatna meant female circumcision. It is submitted that the uncontroversial definitions of khatna and khatanat were fundamentally important in understanding the nature of what was done to C1 and C2, the conversations between A2 and others in the telephone intercept listening device material, and Dr X's expert evidence of khatna. It is said that the submission that the meaning of the word khatna could include a ritualistic ceremony was not supported by the interpreters' evidence.
As to Dr X's evidence, the Crown says it explained: the Dawoodi Bohra community practice of khatna; what was involved in its practice (namely, cutting); how it was conducted; who performed the procedure; where the female genitalia was cut; and the unchanging or static nature of khatna. The Crown argues that Dr X's evidence was important to understanding the evidence of the complainants and the listening device and telephone intercept material.
The Crown submits that Dr X's concession with regard to the technical specificity of the precise anatomical distinction between prepuce and clitoris must be assessed in the light of the evidence of Professor Jenkins, who said that he too would defer to an anatomist for correct identification of the architectural structure of the female genitalia. The Crown submits that this did not detract from the weight to be given to the evidence that Dr X gave with respect to the location of the cut to her genitalia.
The Crown argues that the evidence of Dr X was available as part of the circumstantial case against the appellants and that it was not necessary to be proved beyond reasonable doubt (no such direction was sought at trial). It is submitted that the minor differences between the khatna she experienced and that described by the complainants did not affect the cogency of her evidence.
The Crown says Dr X was not relied on as an expert in female genital mutilation. Her evidence was lead to assist the jury to understand the traditional nature of khatna as it is performed in the Dawoodi Bohra community and how that tradition has remained unchanged over time. It is submitted that her evidence was also available to establish that the Dawoodi Bohra community is strictly hierarchical with control over its cultural practices being exercised by the leadership in Mumbai. The Crown argues that the limitations on Dr X's evidence (as identified by the appellants (see also ground of appeal 3)) do not detract from the probative value of her evidence, which strongly supported the Crown case.
The Crown emphasises a number of close similarities between the account of khatna described by Dr X and the khatna as performed on C1 and C2: the secretive nature of the procedure; the age of the child at the time of the procedure; the genitals being cut; the rarity of bleeding; the provision of drinks to the child to initiate the need to urinate; the aftercare; a healing rate of two to three days; and midwifery being a traditional occupation of those who perform khatna.
The Crown argues that the submission of the appellants that A2 did not "unequivocally adopt a proposition that the clitoris is the subject of the procedure" is untenable in light of the JIRT waiting room conversation.
Similarly, the Crown emphasises what it says were unequivocal admissions from A2 in the conversations at Ex AA Tab 6, Tab 8, and Tab 15 as providing direct evidence that A2 knew what was involved in khatna; that she had performed it on her two daughters; and that she was committed to performing khatna for cultural and religious reasons.
The Crown says that Magennis' evidence was unconvincing. The Crown says she could give no explanation as to the purpose or reason behind the "skin sniffing the steel" ceremony, nor could she give a plausible explanation of why a steel spoon could not be substituted for forceps even though that was a part of the original instructions for the ceremony from her grandmother. Ultimately she agreed that she did not really understand the rationale or purpose behind the ceremony but acknowledged that it was a rather bizarre ritual that her grandmother had explained to her.
The Crown relies on many statements made by Magennis in the telephone intercepts as admissions (including that she: said she did not want to go to jail; said she had the Lord's permission to attend to seven year old girls; when told what C1 had disclosed to police, immediately said "oh no I'm in problem"; said she had agreed that she would not do it anymore and had already refused people telling them that her hands were not right; told Vaziri that she would not do it anymore; told A1 that there would be no scar; and told A2 that she was 100 per cent confident that nothing would be seen during the examination). The Crown argues that the suggestion that Magennis may have said these things because she thought the ritualistic "skin sniffing the steel" ceremony was illegal in NSW is implausible.
The Crown says that Magennis' agreement that C1 and C2 were "not the first time that you have done", when read in context, was an admission that she had performed khatna on children, not a reference to a ritualistic ceremony. The Crown further argues that the conversation at Tab 20 Ex AA (at [99]-[108] above) is not exculpatory.
The Crown submits that looking at the totality (and nature and quality) of the evidence that was available to the jury, there was an overwhelming case that supported the elements of the charges, including that khatna, involving an injury which included a nick or a cut to the clitoris, was performed on each complainant.

[109]

Determination as to ground 2

We have already found under ground 1 that the trial judge misdirected the jury as to the meaning of "mutilates". Thus, although we are satisfied that a cut or nick to the clitoris could well amount to mutilation in some circumstances, the medical evidence would need to establish that there had been injury or damage which rendered the clitoris imperfect or irreparably damaged in some way. We have concluded that in the absence of any medical evidence of such injury or damage, an offence contrary to s 45(1)(a) of the Crimes Act could not be established.
The appellants submitted that if the Court upholds ground 1 (but not ground 2), the Court would order an acquittal for the offences contrary to s 45(1)(a) of the Crimes Act in any event, because success of that ground means that it was not open to convict on the basis left to the jury (i.e. a nick or cut to the clitoris) and beyond that the evidence does not establish beyond reasonable doubt that permanent or irreparable damage or disfigurement was done to the clitoris of either complainant. The appellants submit that the medical evidence alone is sufficient to raise a reasonable doubt in this respect. The Crown did not accept this position, submitting that if the Court upholds any grounds of appeal other than ground 2, the appropriate order would be for a retrial.
Section 8(1) of the Criminal Appeal Act provides that: On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
We are satisfied that the trial miscarried due to the fresh evidence. In addition we have allowed grounds 1, 3 (in part), 4(a), and 8. The question for determination is whether the miscarriage of justice is to be remedied by an order for a new trial or an order for acquittals.
The new medical evidence establishes beyond doubt that, contrary to one of the bases upon which the case was put to the jury, the tip of the clitoris was not excised in either complainant. The medical evidence is that the external genitalia of the complainants are normal; there is no visible scarring; and there is no evidence of lasting or irreparable nerve damage (and it might be impossible ever to ascertain this, where the injury was done to a pre-pubescent girl). Given the state of the medical evidence it would not be possible for a jury, properly instructed, to conclude beyond reasonable doubt that the clitoris of either complainant had been "mutilated" within the meaning of s 45(1) of the Crimes Act based on our finding as the meaning of the word "mutilates". There is thus no proper basis to order a new trial on the charges brought under s 45(1) of the Crimes Act.
We are satisfied that verdicts of acquittal should be ordered on counts 1, 3, 5, 7, 9, and 11.
That leaves for consideration whether a new trial should be ordered in relation to the alternate counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act, being counts 2, 4, 6, 8, 10, and 12.
Before turning to consider that question it is necessary to set out how it was that these alternate counts were left to the jury. It should be stated from the outset that the evidentiary basis for doing so remains somewhat obscure.
On 14 September 2015, the first day of the trial, the Crown prosecutor opened to the jury in these terms in relation to the indictment: The even numbered charges are what's called alternate counts. Simply put in relation to the alternate counts, if you find the accused guilty on the first, on the odd couple in the pair, then you don't need to turn your mind to the alternate count. But should you find the accused not guilty on the first in the pair, then you're obliged to consider the alternate count.
There was no explanation as to how the Crown put its case on the alternate counts or how the evidence in relation to the primary counts differed from the alternate counts. On the second day of the trial, counsel for Magennis opened to the jury by stating: So the only real issue for the twelve of you as the judges of the facts in this trial is to determine beyond reasonable doubt whether or not each of the girls had their clitorises mutilated by Mrs Magennis or, as far as the alternative counts are concerned, whether or not there was any actual bodily harm inflicted on the girls in each of these ceremonies.
And later: So, ladies and gentlemen, just to recap, there is no issue that it was Mrs Magennis that performed the ceremony on the girls at Wollongong on [C1], at Baulkam Hills on [C2], at the request of their mother [A2]. The only issue in this trial for you as judges of the facts to decide is whether the Crown have satisfied you beyond reasonable doubt that the clitoris of [C1] and the clitoris of [C2] was mutilated or, in terms of the alternate count, whether or not there was actual bodily harm inflicted on [C1] and/or [C2].
The lack of any detail as to how the alternate case was put no doubt followed from the lack of detail provided in the Crown opening address. The issue was not addressed again until prior to closing addresses when there was a discussion as to the written directions to be provided to the jury. Senior counsel for A2 and Vaziri submitted: SUTHERLAND …The problem we were devilling with, I won't take a long time, in broad terms, we had understood that the Crown had put the alternative counts in at a time when there was at least the prospect, before your Honour's ruling on the definition of "mutilates" that a "nick or cut" would not fall under "mutilates", but would clearly fall under "actual bodily harm", hence a not guilty verdict, would still leave open the possibility of a verdict under a second count. What I don't know now is how the Crown is going to approach what they say to the jury about the alternative count. Prima facie, in the light of your Honour's proposed direction to the jury, if I could put it in blunt and colloquial terms, we don't really understand how the prospect of the alternative count still exists, if the jury find that there was no injury on count 1. So we have great difficulty in seeing how your Honour is going to put to the jury that if they find there was no injury, or that there's a reasonable possibility the Crown hasn't excluded the prospect that there was no injury, how that would still leave it open to the jury to find actual bodily harm for the alternative count. HIS HONOUR: What if they were satisfied there was an injury, but had a doubt as to whether it was to the clitoris, even including my previously expressed view that the clitoris includes the prepuce? CROWN PROSECUTOR: Capable. HIS HONOUR: I'm raising that. This is a sort of non‑legal argument before the Crown case ends. But if this is the issue, I'm preparing a document right now. Let me ask the Crown what is the purpose of the alternative counts in this trial? CROWN PROSECUTOR: On that point your Honour, that if the jury were satisfied that there was some injury to the female genitals, but not necessarily any part of the clitoris, including the definition that your Honour were to give, that the prepuce is capable of being defined as being part of the prepuce‑‑ HIS HONOUR: That's the purpose of the alternative count? CROWN PROSECUTOR: Yes your Honour. HIS HONOUR: I must say, my mind had been moving in that direction but if that's‑‑ CROWN PROSECUTOR: And your Honour, can I just indicate to your Honour that I have taken instructions on leaving or removing the alternate counts before the trial started, and I'm instructed to have the alternate counts remain on the indictment. So it's a considered position your Honour. It wasn't something that I just left there because it was always there.
The trial judge subsequently provided MFI 113 to the jury, prior to closing addresses, which included the following written direction in relation to each of the alternate counts: This count would only arise if you were satisfied beyond reasonable doubt that a nick or cut had been caused to part of the genital area of [C1]/[C2] but you are not satisfied beyond reasonable doubt that the cut or nick was made to the clitoris.
The Crown prosecutor's closing address took place over six days (from 28 October 2015 until 4 November 2015). On 28 October 2015 she addressed the jury to the effect that the alternate charges arose for consideration only if they found each accused not guilty on the substantive offences. She then stated: In relation to the alternate charges, the Crown relies on the same evidence as it does for the substantive charges. However, in relation to the alternative charges, the Crown case is that an injury, namely a nick or a cut, was occasioned to the genitals of both complainants and that this was done by Kubra whilst in the company of [A2] and vice versa. For the alternate charges for Shabbir Vaziri, which includes counts 10 and 12, the issue is whether he knew the injury occasioned about the complainants' genitalia by Kubra Magennis and [A2] being present, then did he assist both Kubra and [A2] by encouraging them or potential witnesses, other members of the Dawoodi Bohra community to lie to police and not disclose relevant information. Additionally, it's the Crown case that he himself was involved in putting forward false information to the police.
No further mention was made of the alternate charges by the Crown on 29 October 2015 or 30 October 2015. On 2 November 2015 she addressed the jury in these terms: The case against Shabbir Vaziri, as you know, it is a little bit different. He has been charged with accessory after the fact to female genital mutilation or assault occasioning bodily harm in company. … Members of the jury, the Crown submits to you that you would be satisfied that he was aware that some type of procedure occurred involving both girls during the time frame specified in the presence of their mother [A2], and conducted by Kubra Magennis. The real issue you might think is to determine in his case, where the Crown has satisfied you that he was aware or knew that khatna had occurred, namely, an injury to the clitoris for the substantive accessory after the fact charge or, alternatively, whether he knew that an injury had been occasioned to the genitalia for the assault occasioning bodily harm charge, and with that knowledge, he understood to assist Kubra and [A2] directly and indirectly in order for them to avoid detection and being charged.
No further mention of the alternate charges was made by the Crown prosecutor in her closing address.
Counsel for Magennis confined his closing address on this issue to the following extracts: The issue is was the clitoris of both girls mutilated? Or in relation to the alternate counts, if you get to those, the only issue is was actual bodily harm caused or occasioned? I anticipate that his Honour will instruct you that as a matter of law, with regard to the alternate counts, if there is an injury that is more than merely transient or trifling as a result of a nick or a cut somewhere else in the genital area of the girls, if you were satisfied of that beyond reasonable doubt, then if you came to be considering the alternate charges, that is what you would have to be satisfied of in order to find Mrs Magennis guilty of those two counts being 2 and 4. This is the alternate count. And earlier at paragraph 13, his Honour will tell you and has told you that, "The concept of assault at law is a broad one. In the present context however, what it means is the touching of another person without lawful excuse. … The only issue as far as the three elements of that offence is whether [C1] was occasioned actual bodily harm. That is, reasoning the other way, it's conceded on behalf of Mrs Magennis, the evidence in this trial, that she had no lawful right to touch the genitals of [C1] and [C2]. That is, she is potentially guilty of a common assault, that is assault without any injury just by touching. … Now you will remember when I brought your attention, ladies and gentlemen, to MFI 113, which is directions from his Honour to you, that in relation to counts 2 and 4, the alternative counts, that the issue of assault is not an issue for you to decide by Mrs Magennis touching the genitals of [C1] and [C2] she has committed and assault, the issue is whether or not that touching occasioned actual bodily harm with respect to those charges…
Senior Counsel for A2 and Vaziri made no mention of the alternate counts in his closing address.
The trial judge directed the jury in these terms in relation to the alternate counts in his summing up (at SU 8-9) I will say something to you in a moment about the nature of alternative counts, but at this stage, we are just talking about the factual matters referred to in these directions. Here, and I remind you, you only get to count 2 if you acquitted Kubra Magennis on count 1, but if you got to count 2, well what is the real issue on that count. It turns on whether actual bodily harm is established. Para 15, the term "actual bodily harm" includes: 'Any hurt or injury which interferes with the health or comfort of the person. It need not be permanent, but must be more than merely transient or trifling.' In the context of this trial, a nick or cut would be capable of constituting actual bodily harm. This would arise for consideration if you were satisfied beyond reasonable doubt that a nick or cut had been caused to part of the genital area of [C1], but you were not satisfied beyond reasonable doubt that the cut or nick was made to the clitoris. [emphasis added]
Thus the Crown case at trial was that if the jury were satisfied beyond reasonable doubt in relation to C1 and C2 that there had been a nick or cut to the clitoris (including the prepuce) they could convict on counts 1, 3, 5, 7, 9, and 11. The alternate counts were only available if the jury were not satisfied that there had been a nick or cut to the clitoris (including the prepuce) but were satisfied beyond reasonable doubt that that there had been a nick or cut to some other part of the genital area of C1 and/or C2. To be clear, it was not the Crown case that the alternate counts were available in the event that the jury were either not satisfied that a nick or cut amounted to mutilation or not satisfied that the prepuce formed part of the clitoris.
The Crown case at trial was that the traditional Dawoodi Bohra cultural practice of khatna was performed on C1 and C2. The evidence of Dr X was that this practice involved removing skin the size of a lentil from the clitoris of the child. Given the lack of any specificity in the accounts of C1 or C2 in this regard, the evidence of Dr X was relied upon to establish that this traditional cultural practice had occurred. There was no evidence before the Court in the Crown case that this traditional cultural practice involved a cut or nick to some part of the female genitalia other than the clitoris.
At no time during the trial was there any identification on behalf of the Crown as to how the jury could find the appellants guilty on the basis of a nick or cut to an area other than the clitoris (including the prepuce) as opposed to the clitoris. Nor were any directions given in his Honour's summing up as to what was the evidentiary basis for finding beyond reasonable doubt that there had been actual bodily harm inflicted to a specific part of the genital area of the children other than the clitoris (including the prepuce). That no doubt reflected the lack of any identification on the part of the Crown as to the way the alternate counts were run at the trial.
The question whether a new trial should be ordered on the alternate counts in the event that this Court upheld ground 1 and entered acquittals on the s 45(1)(a) counts was not addressed by counsel in this matter. The focus of the appeal was on the primary counts contrary to s 45(1)(a). The only submissions on appeal addressing the alternate counts were as follows.
On behalf of Magennis, it was submitted in written submissions that: Further, it is submitted that the Court would acquit the appellant of the alternative counts of assault occasioning actual bodily harm. These counts were left in the alternative if the jury were not satisfied that the nick or cut was occasioned to the complainant's clitoris. These counts still relied upon the occurrence of a nick or cut. For the reasons outlined under ground 2, the evidence did not establish beyond reasonable doubt that there was a nick or cut occasioned to either of the complainant's genitalia. It is submitted that if the Court upholds the remaining grounds it should quash the conviction and not order a re-trial. It is submitted that in this case it would not be appropriate to substitute a verdict for the alternative counts of assault occasioning actual bodily harm in company. These counts on the indictment were left in the alternative on the basis that there was a cut or a nick to another part of the genitalia of the complainants. For the reasons set out under ground 2, the Court could not be satisfied of this beyond reasonable doubt.
In the submissions in reply filed on behalf of Magennis, it was further submitted that the complainants' descriptions of feeling "a bit of pain" or "hurting" do not establish that there was in fact actual bodily harm.
On behalf of A2 and Vaziri, it was submitted in written submissions that: For the reasons advanced by the co-appellant, a verdict of guilty based on the infliction of a "nick or cut" is unreasonable. It is acknowledged that, if this Court were to be satisfied of an unreasonable verdict on the basis of the inadequacy of the evidence relating to the physical interference with the clitoris (or prepuce of the clitoris), this brings into play the alternative counts on the indictment relating to allegations of assault occasioning actual bodily harm. On that issue, it is submitted that the evidence does not negative, beyond reasonable doubt, that the physical discomfort (if any) experienced by the complainants, was anything other than transient. In that regard, the appellants again refer to the evidence of C1 that the procedure 'didn't hurt at all', and the absence of any evidence by C2 to the contrary. Further, once the alternative charge of assault occasioning actual bodily harm is under consideration, the issue of consent arises. Again, on the evidence presented in the Crown case, it is submitted that the absence of such effective consent also could not be negatived beyond reasonable doubt. On the basis of the above it cannot be said that "the jury must have been satisfied of facts which proved the appellant[s] guilty" of the alternative offences - section 7(2) of the Criminal Appeal Act 1912. Accordingly, it is respectfully submitted that this Court would not convict the appellants of the alternative counts on the indictment, and verdicts of acquittal should be entered.
The Crown did not directly address the issue of the alternate counts in either written or oral submissions. As with the appellants, the focus of the submission under Ground 2 was as to whether it was open to the jury to find that there had been a "nick" or a cut to the clitorises of the children. Despite this, the Crown responded to the above submissions regarding the alternate counts by noting that the children had variously described the procedure as hurting them. The written submissions go on to note that, "given its size, clearly the cutting or nicking of a seven-year-old's clitoris with a metal instrument satisfies the elements of an assault occasioning actual bodily harm" (it is to be noted that that was not in fact the basis upon which the alternate counts were left to the jury). It was further submitted that the assertion on behalf of A2 that consent was an issue was unsustainable on the basis that A2's evidence was that she did not approve of khatna and no cutting occurred. Thus, it was submitted, the Crown had negatived the issue of consent in relation to the alternate counts.
Turning then to the appropriate orders, we are satisfied that this would not be a case in which the Court could substitute verdicts of assault occasioning actual bodily harm in accordance with s 7(2) of the Criminal Appeal Act. The fact of the fresh evidence alone means that this would not be an appropriate course to take. Nor did the Crown invite the Court to take this course.
There is a real question as to whether, given the way the Crown case was run at trial, the consideration of whether a new trial should be ordered on the alternate counts should be confined to the basis upon which those alternate counts were left to the jury (on the question of whether there was a nick or cut to a part of the genital area other than the clitoris (including the prepuce)). Despite this, we propose to consider the question whether there is a sufficient basis to order a new trial on the alternate counts on the basis that the Crown could base its case for assault occasioning actual bodily harm on an allegation that there had been a cut or nick to the clitoris and would not be limited to the way the alternate counts were run at the trial. This is consistent with the way in which the submissions were advanced on this appeal.
We turn first to consider whether there is available evidence to support a new trial on counts of assault occasioning actual bodily harm based on a cut or nick to the clitorises of either complainant (or some other part of the genitalia).
In the absence of any direct evidence from C1 or C2 that their clitorises had been cut or nicked, the evidence of Dr X was very important to the Crown case. As the Crown prosecutor told the jury in her closing address, the evidence of Dr X was "critical and fundamentally important evidence". The jury were told that on the Crown case the evidence of Dr X was the "bridge or link between the procedure of khatna as conducted by the Dawoodi Bohra community and what happened to [C1] and [C2], being, as the Crown has submitted, that what happened to them involved either a cut or a nick or some form of injury to the clitoris".
For the reasons set out in addressing ground 3, the Court has concluded that Dr X's evidence as to the hierarchical structure of the Dawoodi Bohra community and the "static" nature of the khatna procedure was not opinion evidence admissible under s 79(1) of the Evidence Act 1995 (NSW) (as it was not an opinion based on a specialised area of knowledge acquired through study, training or experience; rather, it was a subjective opinion based on Dr X's membership of the community). By way of analogy, an opinion by a lay adherent to a particular faith as to the hierarchical or other structure of that faith or as to the way in which that faith is observed in a particular place and at a particular time would say nothing about the "static" nature of practices observed in one place at one time or how that faith may be observed in other places and at other times. It would be no more than a personal opinion or speculation.
Similarly, Dr X's evidence (better described as her speculation) as to the reasons the ceremony was traditionally performed is no more than supposition and not relevant when the motivation of the appellants is itself irrelevant. Dr X's evidence as to the lack of a ritualised khatna procedure is similarly problematic - particularly since she admitted to having no knowledge of practices outside India and had not been involved in research of this issue (even in India) after the time of her 1991 article. Accordingly, in assessing whether the alternate counts could be made out, we have put aside the evidence from Dr X as to these matters, including particularly as to the static nature of the khatna procedure.
We have ruled that Dr X's evidence as to the nature of the khatna procedure as practised in India in the period from 1950 to the early 1990s was relevant, based as it was on Dr X's sociological study that led to the publication of the 1991 article (albeit also informed by Dr X's own personal experience), as was her evidence as to the information gleaned from the woman circumciser. Despite this, without the additional evidence linking the procedure in the Dawoodi Bohra community in India from the 1950s to 1991 to what might be the practice in the Dawoodi Bohra community in Sydney between 2009 and 2012, the evidence does not advance the Crown case as to what procedure was actually performed on C1 and C2 and, in particular, whether it went beyond a ritualised procedure.
A further difficulty with the evidence of Dr X is that she describes the practice as performed in the Dawoodi Bohra community in India from the 1950s to 1991 as involving the removal of skin from the prepuce the size of a lentil. That is, as involving an excision. The Crown did not rely upon any "excision" in the charges brought under s 45(1)(a) of the Crimes Act, and the jury was instructed that any nick or cut causing injury "to any extent" was sufficient. Despite this, the evidence of Dr X was relied upon by the Crown as crucial "bridging" evidence.
The high point of the evidence which could support the alternate counts of actual bodily harm being inflicted on C1 is her evidence. We have summarised it above at [168]-[169]. It is of some significance that by the end of C1's evidence in court she was not able to describe what it was that caused her pain; that "it was short, didn't last long. It was like I got a pinching or a cutting, I'm not sure". She confirmed that she had her eyes closed during the procedure. She was asked whether she was still feeling pain when she was asked to open her eyes and she responded: "Not all - not really". She was asked whether she saw any blood in the bedroom that day and she replied "None at all". She was asked whether she saw any blood in the shower and she responded "No".
When asked about the fact that she had said in her JIRT interview that "They give a little cut" she responded "They did something to me that I thought was a cut". When later asked about whether the "hurt or a pain at the time of the cut or pinch" lasted she replied "No". C1 was reminded of her JIRT interview where she stated that the shower would hurt and it was suggested to her "but you found out that it didn't hurt at all?", to which she responded "No, it didn't".
The Crown was permitted to ask leading questions of C1 in re-examination. The Crown put to C1 that she had never used the word pinching before to which C1 responded "It is because I don't really think it was a pinching, it just felt a bit like it". Finally the Crown prosecutor asked C1 "is there any reason why you used the word "pinching" for the first time here this afternoon?", to which she replied "because I'm not completely sure if it was cut, although it is most likely it was cut, though it - I remember a sort of pinching but don't know really, though".
C1 drew a picture of the "Scissors" (Exhibit B). During the evidence of Professor Grover Exhibits F and 3 were tendered. Exhibit F was a print out depicting different types of forceps and Exhibit 3 was an enlarged version of two of them. During the hearing of this appeal the Court was invited to compare these images with Exhibit B. It is to be observed that there are obvious similarities between the photos of the forceps and the drawing in Exhibit B. Unfortunately, neither of these exhibits was shown to C1 during her evidence for comparison purposes.
The evidence of C1 that she thought she had been cut (or pinched) is to be viewed in the context of there being no lasting pain, no blood, nor any other evidence of injury. She did not see the procedure and was describing what it felt like.
The evidence of C2 lacked any of the detail of C1. We have summarised her evidence in some detail above at [170]-[174]. The high point of her evidence is that contained in her JIRT interview. By the time she gave evidence at trial she could not remember anything about the procedure beyond what she said in her interview. The evidence in her JIRT interview relevant to an allegation of actual bodily harm did not go any higher than the fact that after a number of leading questions she volunteered the answers extracted above at [42], namely, that she had "hurt" in her "bottom". There was no evidence from C2 as to how it hurt, nor for how long. Although C2 was able to provide answers in relation to the surrounding circumstances (for example, that it happened in her parents' bedroom), no other details provided by C2 would advance a Crown case for actual bodily harm having been inflicted on her.
For the reasons set out in ground 4, the Court has determined that C2 was not competent to give sworn evidence, as required by s 13(3) of the Evidence Act, due to the lack of any demonstrated understanding of the obligation to give truthful evidence. However, we have concluded that C2 met the threshold requirements for competence to give evidence set out in s 13(1) of the Evidence Act and, accordingly, that she would have been competent to give unsworn evidence had she been informed of the matters required by s 13(5). Although in her initial answers in response to the trial judge she demonstrated that she could understand questions asked of her (such as where she went to school), she was either unable or unwilling to answer any other questions. If she were to give unsworn evidence again the jury would observe that fact and may attribute less weight to it on that basis. Of course, this does not mean that her unsworn evidence would be necessarily treated by a jury as less reliable than sworn evidence (see, in this regard, the High Court's discussion of these issues in The Queen v GW (2016) 258 CLR 108; [2016] HCA 6).
We are not satisfied that C2's evidence, without any other evidence as to the procedure performed on her, could support an allegation of actual bodily harm being inflicted on her, especially given the lack of any physical evidence of harm.
As for the question whether the evidence of C1 and C2 could be used as tendency and or coincidence evidence, the trial judge was not required to determine this issue at the trial until after all of the evidence had concluded, including that of C1 and C2. His Honour was required to assess the probative value of that evidence in the context of all of the evidence at the trial, including the evidence of Dr X. In the event that any new trial was ordered in relation to the alternate counts the question whether the evidence would be admissible as tendency or coincidence evidence would have to be re-assessed without regard to the "bridging" evidence of Dr X. We are not satisfied that the evidence of each complainant could have significant probative value in the sense found by the trial judge in the absence of the evidence of Dr X and thus we have considered the available evidence by assessing the case against C1 and C2 separately.
We have considered the telephone intercepts and listening device recordings. These include material going to the fabrication of the Africa checking story and other conversations which show that A2's understanding was that more than a symbolic procedure had been undertaken. The high point of this evidence is the conversation with A1 on 29 August 2012 extracted above at [72], where in response to a question from A1 as to whether "in us" they "cut skin … or do they cut the whole clitoris?", A2 responded, "No they just do a little bit… just little…". As discussed above at [72], there is debate as to whether that conversation should be understood as being a reference to what was done in A1/A2's family (i.e., to the complainants) or in the Dawoodi Bohra community of which A1/A2 were members.
Similarly, Magennis' evidence of a symbolic procedure being performed was tainted by her initial acceptance of the Africa checking story. It is to be accepted, as was submitted on her behalf during this appeal, that some of her recorded statements were exculpatory. For example, her insistence on 29 August 2012 that an examination would not reveal anything. On the other hand she later said in another conversation that nothing would be seen on examination because of the "way" she performed the procedure. The high point of these statements was her explanation that "grazes" happen all the time. Although this is telling, it is also consistent with her account that her hands tend to shake during the procedure and she could have hurt the girls by pressing too hard with a shaking hand.
Overall, it would be open to a jury to reject the defence case that a "skin sniffing the steel" ritual was performed in this matter, given the covertly recorded conversations and the admitted lies told regarding the Africa checking story. But rejection of the defence case is not enough. There must be evidence upon which the Crown could establish beyond reasonable doubt that there were assaults occasioning actual bodily harm to C1 or C2 on the basis of a nick or cut to the clitoris (or some other part of the genitalia).
The evidence of A1, A3, and A5 does not advance the Crown case. A1's credibility was open to doubt at the first trial, given his earlier lies. The trial transcript also suggests that A3 and A5 were implausible witnesses.
The appellants submitted in their written submissions that the evidence of the complainants could not amount to actual bodily harm. No issue was taken on this point below and nor was it addressed at the hearing of this appeal. Although we are prepared to accept that a nick or cut to the genital area could amount to actual bodily harm, the question is whether there is sufficient basis to establish that actual bodily harm was in fact inflicted in the present matter.
In addition to these problems with the available evidence on any re-trial, there are significant discretionary considerations relevant to the Court's broad power under s 8(1) of the Criminal Appeal Act.
This matter occupied 69 court days in the Supreme Court between 17 June 2015 and 9 June 2016. There were 22 sitting days devoted to pre-trial issues and another 39 sitting days of trial. A further eight sitting days were spent on the sentencing of the appellants. The appeal book in this matter comprised 10,709 pages. The Crown's written submissions were 227 pages and the combined written submissions of the appellants totalled 256 pages.
The events the subject of these charges allegedly occurred between 2009 and 2012. C1 and C2 have already been interviewed, subjected to two medical examinations, and have given evidence in the trial. They would have to give their evidence again in the event of any re-trial: an offence of assault occasioning actual bodily harm does not fall within s 306B(1) of the Crimes Act, which provides that when a new trial is ordered for certain prescribed sexual offences the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant. Although it is to be accepted that the question whether C1 and C2 should be required to give evidence again is a matters for the DPP in the proper exercise of his prosecutorial discretion, it is nonetheless relevant to note the fact that the complainants would be required to give evidence again when considering how long any such re-trial would take.
Having carefully examined all of the evidence that would be available on a trial confined to allegations of assault occasioning actual bodily harm, we do not propose to order a new trial on the alternate counts in this matter.
We have considered the admission by Magennis during the trial that she was guilty of common assault. It was not suggested that we would enter a verdict of common assault as an alternate to the s 59 counts in the event that we upheld ground 2, so we do not propose to follow that course.

[111]

Judgment No 3

Dr X was cross-examined in the course of a voir dire held to determine the admissibility of her evidence in advance of the trial.
His Honour noted (at [10]) that the issues at trial would include: (a) whether any act or acts carried out by KM upon C1 and C2 constituted female genital mutilation ("FGM") in the form of mutilation of the clitoris as alleged in the charges brought under s.45(1)(a) Crimes Act 1900; (b) relevant to the first issue, whether any act or acts carried out by KM on C1 and C2 on these occasions were undertaken as part of a procedure involving Khatna or female circumcision, said to be undertaken from time to time upon young girls in the Dawoodi Bohra community.
His Honour said that behind the ultimate issues in the trial there were many issues of fact relevant to the determination of the ultimate issues (at [20]).
His Honour considered first the relevance objection, noting that a ruling as to relevance under ss 55 and 56 of the Evidence Act does not require or permit the Court to have regard to alternative explanations or competing inferences; nor does the Court consider issues concerning reliability of evidence at that point (at [19]). His Honour was satisfied that the evidence of Dr X (if otherwise admitted) was capable of shedding light upon issues falling for determination by the jury, including issues: …concerning the alleged performance of Khatna or female circumcision in the Dawoodi Bohra community, the social and hierarchical structure of the Dawoodi Bohra community His Honour reached this conclusion having regard to what was described (at [21]) as the "undemanding threshold of relevance" for the purposes of the Evidence Act.
As to the objection based on the admission of Dr X's evidence as opinion evidence, after referring to various authorities as to the relevant principles, his Honour accepted that there was a field of specialised knowledge involving the practice of khatna or female circumcision in the Dawoodi Bohra community; that this specialised knowledge was acquired by Dr X by her experience as well as study and research; that this had resulted in the acquisition of knowledge, involving acquaintance with facts, truths or principles, going beyond mere subjective belief or unsupported speculation; and that Dr X's knowledge applied to a body of known facts, or body of ideas inferred from such facts or accepted as truths on good grounds (see [34]). His Honour accepted that Dr X's specialised knowledge was based on her training, study and experience, including (see [36]): (a) her experience as a child, and then an adult, brought up and living within the Dawoodi Bohra community in Bombay, now Mumbai; (b) her experience of having a procedure undertaken on her genital area as a child [in 1950 or 1951]; (c) her study and research of female circumcision in the Dawoodi Bohra community in India, including knowledge acquired of the nature and extent of that procedure [in 1990/1991]; and (d) her knowledge of the hierarchical structure of the Dawoodi Bohra community in India, and the teachings of that community from its base in India, giving rise to her knowledge of the structure, organisation and practices of that community in other parts of the world, including Australia.
His Honour noted that Dr X was not being called to give expert medical evidence and said that her evidence related to what she testified to be a practice of the Dawoodi Bohra community to undertake khatna or female circumcision by the making of a small cut on or in the area of the clitoris. His Honour was satisfied that Dr X's opinion on that topic was admissible under s 79 of the Evidence Act and was capable of assisting the jury in the resolution of the facts in issue at the trial (see [46]).
His Honour was satisfied that the proposed evidence of Dr X had probative value. His Honour said (at [85]) that the evidence would provide assistance to the jury in understanding matters outside the experience and knowledge of jurors and judges (being the nature and practices of the Dawoodi Bohra community with particular reference to khatna or female circumcision), noting that the question as to whether khatna or female circumcision had in fact been undertaken to each of C1 and C2 was a critical issue in the trial. His Honour was not persuaded that there was any danger of unfair prejudice in the case that ought lead to the exclusion of the evidence under s 137 of the Evidence Act. Hence, other than the proposed evidence by Dr X that it was very rare for the procedure to cause scarring to the girls (see [17] of pre-trial MFI 31), his Honour ruled the evidence admissible.

[113]

Relevance objection

As noted above, in essence the relevance objection is based on what were identified to be the temporal and geographical limitations on Dr X's expertise - temporal, in the sense that her knowledge was based on her own personal experience of khatna in the 1950s and on her research in 1990 that led to her article in 1991; geographical in that her knowledge was limited to practices in the Dawoodi Bohra community in India (not in NSW or Australia; nor in Africa whence the complainants' family and Magennis hailed).
The appellants further note that Dr X did not profess to be an expert on female genital mutilation (PT 453; 487-488); that she accepted that she had no formal qualifications in anthropology (PT 410) or any background in anthropology (PT 445); and that she agreed that her expertise was based on her anecdotal personal experience and the publication of one paper in 1991 (PT 488).
The appellants point to the following evidence given by Dr X in the course of her voir dire: that she did not know anything about the Dawoodi Bohra community in Sydney (PT 368); that the subjects interviewed for her 1991 paper were from Mumbai (PT 413); that she had not ever done any research into Dawoodi Bohra in communities other than in India (PT 413); that she had never travelled to Kenya and she had not read any literature on female genital mutilation in Dawoodi Bohra communities in Kenya or Tanzania (PT 458); that she did not participate in the Dawoodi Bohra community in Australia (PT 459); that she had no direct knowledge of the practice of circumcision or female genital mutilation in Dawoodi Bohra communities in Australia or in Tanzania or Kenya (PT 459); that she had not read and did not know of any secondary sources of information in relation to female genital mutilation or circumcision in Dawoodi Bohra communities in Australia or in Tanzania or Kenya (PT 459); and that she would not know how many people are doing khatna in Australia (PT 484).
They note that Dr X had left India when she was 23 years old to study in the United States (PT 359) and that her evidence was that: from the time she left Mumbai until the time she published her paper in 1991 she had considerably less contact with the Dawoodi Bohra community (PT 412); when she returned from the United States she had considerably less contact with the community and her work situation was predominantly Hindu (PT 359); that after her paper was published in 1991 she had not done any more studies of this type (PT 428, 489); and that she retired in 2010 (PT 410). Her evidence was that some of her friends had told her that not many people are doing it (khatna) now but that was in Mumbai and she did not know about the rest of the world (PT 428); and that for some time after 1990-1991 she kept up-to-date on female circumcision in other communities but then she became interested in other articles (PT 437).
As to Dr X's knowledge of the history and general practices of the Dawoodi Bohra community, the appellants point to the following evidence: that she had only read one religious scripture book, Daim ul Islam, which was about family law and she had read it a long time ago (PT 357-358); that she had read very little of the history of the Dawoodi Bohra people (PT 358); that she had read the Koran when she was a child (PT 358); that she had a poor understanding of Islam (PT 366); that much of the literature about her community is written in a language she did not understand (PT 366); that she was not willing to comment on religious texts to do with the Bohra sect (PT 459); that there were many factors involved "especially about the religious texts" and that she had "no knowledge about it vis-à-vis FGM" (PT 453).
The appellants thus submit that any evidence that Dr X could give on the subject of khatna was limited to the cultural practices of the Dawoodi Bohra community in India in 1990 and 1991 and that her conclusions could not be transposed to attitudes of the Dawoodi Bohra community in Australia some 20 years later. Hence they argue that Dr X's opinions, even if accepted, could not rationally affect (directly or indirectly) the assessment of the existence of a fact in issue in proceedings (namely, whether, in NSW between 2009 and 2012, members of the Dawoodi Bohra community living in Australia and coming from Africa committed acts on the complainants that constituted female genital mutilation).
The appellants also argue that, as to the issue as to whether what was done to C1 and C2 was done to the clitoris or to the prepuce, Dr X was unable to distinguish between the two and was not clear about the word "prepuce" (PT 448). They say that this also deprived her evidence of relevance.

[114]

Crown submissions as to relevance objection

The Crown argues that Dr X's evidence was relevant to the issue as to whether the procedure performed on C1 and C2 involved the infliction of an injury to the clitoris of each and was admissible on the basis that: it explained the social and hierarchical structure of the community which practised khatna and the nature of the khatna procedure (which on the Crown case remains unchanged through the Dawoodi Bohra community over time and place); and it rebutted the suggestion that there was a symbolic form of khatna known as the "skin sniffing the steel" ceremony.
The Crown argues that fundamental to the assessment of the relevance of Dr X's evidence is an appreciation of the rigid hierarchical structure of the Dawoodi Bohra community worldwide and the fixed nature of its traditions. The Crown submits that the proposition that the Dawoodi Bohra community is a sect with a highly structured hierarchy was not seriously challenged at trial; nor was it disputed at trial that individuals within the community are assigned certain functions under a central leadership in Mumbai.
The Crown points to the evidence at trial that instructions were sought by the Dawoodi Bohra community in NSW from the Syedna (the spiritual leader of the worldwide Dawoodi Bohra community) on general aspects of the faith, and in particular, that instructions were sought on how to respond to the police investigation into khatna.
As to the fact that Dr X had never done any research into Dawoodi Bohra communities other than communities in India, the Crown argues that the very strong ties between the Dawoodi Bohra community in NSW and India were demonstrated throughout the trial by evidence independent of Dr X. The Crown points to: the explanation given by Vaziri in his interview with the police as to the hierarchical structure of the Dawoodi Bohra community; the telephone intercept of the conversation captured between A1 and Vaziri on 29 August 2012 (immediately after A1 was told that the complainants had been interviewed by police); the evidence at trial by Magennis as to the approach made to her by the Imam's wife in London asking her to conduct khatna for all the Dawoodi Bohra families living in that community at the time; the discussion between A2 and Magennis on 4 September 2012 in which A2 told Magennis that "the prince" (a religious leader) had asked her to keep him informed of what happened after the medical examination of the complainants; and the reference by A2 (both in that conversation and in a conversation with her mother on 27 September 2012) to the signing of petitions in India or of petitioning in Mumbai against khatna; as well as to the discussion between A2 and her mother about taking other young girls to India for khatna to be performed there. The Crown submits that although the complainants and their family did not come from India there was a plethora of evidence which closely connected the complainants and their family with the Dawoodi Bohra sect and its Indian leadership, including the fact that the appellants spoke in the Indian language Gujarati in many of the intercepted conversations.
It is in that context that the Crown points to the relevance of Dr X's evidence that representatives of the ultimate leader Syedna are present in each Dawoodi Bohra community throughout the world, and that they are educated by the heads of the religion in Mumbai and sent to diaspora communities where they continue to receive instructions from the Syedna (the Crown case being that Vaziri held such a role within the Dawoodi Bohra community in Sydney).
As to Dr X's evidence of the khatna procedure, the Crown submits that it was not in dispute that C1 and C2 had undergone a procedure called khatna. The Crown argues that the unchallenged evidence of the translators was that khatna means circumcision and says there was a body of evidence independent of Dr X of the secretive nature of khatna.
The Crown gave various examples of the relevance of Dr X's evidence to support evidence led in the Crown case on various ancillary factual issues: namely, that khatna was performed by a woman of the Dawoodi Bohra community who was given permission from the clergy to perform khatna (consistent with evidence of Magennis that she had first been requested to perform khatna by the wife of the Imam in London); that traditionally it is the mother of the girl who requests the circumciser to perform the procedure and takes the daughter to have the circumcision done (consistent with the evidence of A2 and Magennis); that khatna is performed on girls at the age of six or seven and that this age had not changed since 1950 (consistent with the evidence of A2 and Magennis).
The Crown submits that the criticisms made by the appellants in their relevance objection are not valid. It is submitted that if the fixed nature of khatna was accepted, then the fact that Dr X's evidence included experiences from the 1950s and the 1990s in India did not deprive it of its probative value; and that, if the evidence of Dr X that the tradition of the Dawoodi Bohra community (including in relation to khatna) did not change from country to country was accepted, then it would be open to the jury to conclude that khatna was practised the same way worldwide (whether that be in India, Tanzania, Kenya or Australia).
The Crown submits that, on the question of relevance, the trial judge was required to assume that the evidence would be accepted by the jury (referring to s 55 of the Evidence Act and to IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39]). Hence it is submitted that if the above two propositions were accepted then evidence of the practice of khatna in India in the 1950s and the early 1990s was relevant to the facts in issue and admissible.
As to the complaints made in relation to the limitations on Dr X's knowledge of the religious aspect of the practice of khatna, the Crown argues that these are not pertinent to the question of the relevance of the evidence of Dr X - it not being the Crown case that khatna was an Islamic ritual and Dr X not being called to give evidence of scripture or the general history or wider cultural practices of the Dawoodi Bohra community.
As to the fact that Dr X was not an expert on female genital mutilation or anthropology, again the Crown argues that this did not deprive her evidence of relevance, noting that Dr X was not relied upon as an expert in either field but instead was relied upon as a social scientist, well qualified in scientific methodology. In relation to the criticism that Dr X had not read any literature on female genital mutilation in Dawoodi Bohra communities in Kenya, Tanzania or Australia, the Crown says there was no evidence that there was any such literature and that this criticism is specious.
Similarly, the Crown submits that criticism as to Dr X's inability to distinguish between the clitoris and the prepuce does not deprive her evidence of relevance: first, in light of the trial judge's definition of "clitoris"; and, second, because Dr X was not relied upon by the Crown as an expert on anatomy.

[115]

Determination as to relevance objection

Section 55(1) of the Evidence Act provides that relevant evidence is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in a proceeding. The facts in issue in a criminal proceeding are those which establish the elements of the offence and behind those ultimate issues will be questions about facts relevant to those issues (see Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [7]).
The question of relevance is not determined by the capacity of the evidence by itself to prove the fact in issue, but is to be determined in the context of other evidence either admitted or subsequently to be adduced (see Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [177] ("Evans"); BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 at [88]). In determining the question of relevance, a wide focus is to be taken (Evans at [94]-[96]; Regina v Vinh Le [2000] NSWCCA 49 at [19]).
The Court has concluded that his Honour did not err in determining that Dr X's evidence as to the khatna procedure in India in the 1990s (or indeed over the period spanning 1950 through to 1991 when her article was published) was relevant to the issues in the trial notwithstanding its temporal and geographical limitations. If the hierarchical nature of the Dawoodi Bohra community (of which there was ample evidence), and, more particularly, the static nature of the khatna procedure (in relation to which the evidence carried less weight, since it was based on little more than Dr X's personal perception as a member of the community) were to be accepted, then Dr X's evidence of the nature of the procedure could rationally affect the determination of the critical issue as to what had in fact happened to C1 and C2 during the respective ceremonies.
The evidence as to what was comprised in or understood by the cultural practice of khatna (even if only as it was practised in India in the 1990s) was capable of enabling the jury to draw conclusions as to the import of the evidence of C1 that she saw scissors in Magennis' hand, that she felt pain in her private parts during the procedure, and that she was required to drink water or lemonade in the bed and to take a shower after the procedure.
Insofar as the Crown relies on the static nature of the khatna procedure as one of the matters fundamental to the appreciation of the relevance of Dr X's evidence, it should be noted that this was largely based on Dr X herself expressing the opinion that the practice of khatna had not changed (on the basis that had it changed she and "everybody in the community would know"). That limits the weight that might be placed on what the Crown relies upon as fundamental to an appreciation of the relevance of the evidence. Nevertheless, on the relatively undemanding test of relevance, Dr X's evidence of what was comprised in the practice of khatna in India in the 1950s and in the early 1990s was relevant to an issue in the proceedings.

[116]

Opinion evidence objection

The second basis of challenge to Dr X's evidence is as to the findings made by his Honour in Judgment No 3 at [34] (referred to above at [647]). The appellants submit that Dr X did not possess specialised knowledge as to the matters identified by his Honour (at [11] of Judgment No 3) and that any knowledge that she did possess was not acquired from her study, training or experience: Evidence Act s 79(1).
The appellants complain that his Honour failed to identify with precision (and in a way that linked the relevance of the evidence to the question of admissibility under s 79) the specialised knowledge that Dr X possessed; instead speaking in general terms about khatna and the practice of circumcision in the Dawoodi Bohra community. The appellants say that in order to be relevant Dr X's evidence had to relate to the practice of female circumcision in NSW in 2009-2012 by members of the Dawoodi Bohra community from Africa. The appellants further argue that even if the question is approached in general terms, Dr X did not have the expertise to give evidence as to the practices of the Dawoodi Bohra community in this jurisdiction at the relevant time.
The appellants complain, amongst other findings, as to his Honour's conclusions: at [57] that "[t]here is a foundation in the evidence of [Dr X] for an understanding of the suggested hierarchal structure of the Dawoodi Bohra community which is based in India, but has elements in other countries as well, including Australia"; and at [69], that "[e]vidence bearing upon the reason why Khatna is performed within the Dawoodi Bohra community upon young girls is relevant to the determination of a fact in issue in the trial" (see also his Honour's conclusions at [75]; [85]).
It is submitted that it was not correct to find that there was a field of specialised knowledge as to the practice of khatna or female circumcision in the Dawoodi Bohra community generally, the appellants pointing to Dr X's evidence being that she was not aware of literature or studies in relation to khatna in Dawoodi Bohra communities in Australia, Tanzania or Kenya.
As to the matters referred to at [36] of his Honour's reasons on which Dr X's specialised knowledge was found to be based (see [647] above), it is noted that the first two matters relate to Dr X's subjective experience. The appellants point to Dr X's acceptance that her evidence was based on anecdotal personal experience (PT 488) and that her understanding of the Dawoodi Bohra community was from the perspective of a lay person in that community (PT 357; 366). They note that Dr X gave evidence that generally speaking female circumcision was not discussed amongst women in the Dawoodi Bohra community in India (PT 403-404; 406-407; 430) and that Dr X had never seen it performed on someone (PT 430; 431). It is thus submitted that the evidence did not support the conclusion that Dr X acquired specialised knowledge from her experience as a member of the Dawoodi Bohra community.
In particular, it is said that it was not possible to conclude that Dr X obtained specialised knowledge as required under s 79(1) of the Evidence Act as a result of her own experience of female circumcision: first, because it was limited to a particular point in time (the early 1950s); and, second, because Dr X did not see what happened to her, had not been medically examined, had difficulties distinguishing between the prepuce and clitoris, and could not say what was cut or where was cut (see PT 421-422). It is submitted that a single experience in 1950 or 1951 in Mumbai could not form the basis of specialised knowledge to give an opinion in respect of events occurring in Australia in 2009-2012.
As to the reliance placed on Dr X's experience as a member of the Dawoodi Bohra community in India, the appellants argue that "experience" in s 79(1) of the Evidence Act does not cover a person's life experience as a member of a community or as the subject of a particular cultural practice.
The appellants say that a particular difficulty in relying on this type of "experience" as leading to the acquisition of specialised knowledge is that it is apt to equate a person's subjective experience to the acquisition of knowledge (the appellants submitting that the High Court's approval of the Macquarie Dictionary definition of "knowledge" in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [23] ("Honeysett") appears to preclude reliance on acquisition of knowledge through a person's subjective life experience). It is said that reliance on this as a source of specialised knowledge was particularly problematic in this case due to the fact that the procedure performed on Dr X occurred in 1950 or 1951, that she had had considerably less contact with the Dawoodi Bohra community in India after her return as an adult, and that she had no experience of the Dawoodi Bohra community and its views or practices in respect of female circumcision in Australia in 2009-2012.
The appellants further argue that it could not be concluded that Dr X acquired the requisite specialised knowledge to give the opinions she gave in evidence from her research for the paper she had published in 1991 regarding female circumcision in the Dawoodi Bohra community in India. They note that the paper was not peer-reviewed and that it was based on informal conversations with approximately 55 Dawoodi Bohra women (PT 380-381) all from Mumbai (PT 413); that Dr X could not recall the methodology she followed and that she said it was difficult because if she said she was writing an article they would become defensive (PT 427); that Dr X said she may have taken down a few notes at the time she was talking to them and she would take down notes when she got home or back to the office (PT 423; 427); that Dr X said she asked the women more or less the same thing but it depended on how willing the person was to cooperate (PT 423; 427); and that not all women interviewed had had the procedure performed on them (PT 488).
The appellants note Dr X's evidence that (PT 430): I didn't ask the women what was your experience. I just asked them in general about circumcision in our community. What precisely you experienced, when you experienced, how you experienced. I may have touched on it but because it is understood that this is the age at which it is done, you know these questions become sort of irrelevant almost because we already know it.
They further note that Dr X had not asked any of the women whether they had asked for or had any variation to the khatna procedure performed on either them, their daughters or their granddaughters (PT 462).
The appellants argue that a particular difficulty with reliance on the 1990/1991 study and the 1991 article was that the term "gaan" means the genital area for both girls and boys (PT 380); that there is no word for a more specific area of the genital area for women and one could not be certain precisely where the women were circumcised (PT 429); and that Dr X herself had difficulties distinguishing between the clitoris and the prepuce and this extended to the time when she wrote her article (PT 464). In that regard they point to Dr X's evidence that "I'm not completely aware of the word, like what exactly does prepuce mean, what exactly are the glans, I think, if you are getting a little bit into medical terminology. I just want to stick to what my understanding is, is that it is the tip of the clitoris" (PT 448); and that the word "prepuce" in her 1991 article was probably taken from one of the categories described in the literature on female genital mutilation that she was reading at the time (PT 448). The appellants point out that Dr X accepted that some female genital mutilation procedures involved the prepuce and some involved the clitoris (PT 482).
Thus it is submitted that it could not be concluded that Dr X had specialised knowledge as to precisely what the khatna procedure involved, given her lack of knowledge regarding the anatomy of the clitoris; and that it could not be said that her evidence that khatna involved a small cut to the tip of the clitoris was acquired from her 1990 study (contrary to his Honour's conclusions at [46] of Judgment No 3).
As to the last matter relied upon by his Honour as the basis for Dr X's specialised knowledge (her knowledge of the hierarchical structure of the Dawoodi Bohra community in India, and the teachings of that community from its base in India, giving rise to her knowledge of the structure, organisation and practices of that community in other parts of the world, including Australia - see Judgment No 3 at [36]), the appellants submit that this was not part of her training, study or experience and that the evidence on the voir dire fell well short of establishing that she possessed such knowledge or that it was acquired through her study, training or experience. It is submitted that it could not be concluded from Dr X's knowledge of the hierarchical structure of the Dawoodi Bohra community in India that she could express opinions on the particular practices of Dawoodi Bohra people in communities across the world, including Australia.
The appellants argue that the limitations of Dr X's training, study and experience had ramifications not only for the scope of any specialised knowledge she had acquired but also for the findings that could be made as to whether her opinions were based (wholly or substantially) on such specialised knowledge. In that regard, it is submitted that, aside from Dr X not possessing the requisite specialised knowledge required to render her opinion evidence admissible, her opinions were not based wholly or substantially on any such knowledge she did acquire. In this regard the appellants again point to the limitation of her knowledge to a particular part of the Dawoodi Bohra community at a particular point in time. Thus it is submitted that, to the extent that Dr X expressed opinions regarding khatna and its practice in Australia between 2009 and 2012, this was based on speculation and subjective belief, not specialised knowledge.
Particular complaint is made as to the opinion given by Dr X that khatna in the Dawoodi Bohra culture is static and that the procedure has not changed (evidence addressed by his Honour at [55]-[63]). The appellants note that the Crown sought to adduce evidence from Dr X that the Dawoodi Bohra community is "highly organised and instructions come from 'above'" and that "community members are asked to follow similar procedures and practices no matter where the Dawoodi Bohra's [sic] live" (see pre-trial MFI 31 at [21], extracted by his Honour at [55]).
The appellants point to Dr X's evidence on the voir dire that she knew that the procedure had not changed because "if there is any change you get to know about it" (PT 431.31) and that, when asked whether it was her evidence that the practice amongst Bohra women had not changed in Mumbai between 1950 and the 1990s, "[f]rom the limited knowledge I have I would say the practice has not undergone any change" (PT 432.8-9), though also stating that the procedure has remained the same but people are questioning it (PT 432.16-432.19; see also PT 389).
It is submitted that Dr X did not have specialised knowledge that enabled her to give the opinion that the nature of khatna was static: she did not have specialised knowledge of the khatna procedure across all Dawoodi Bohra communities in the world over a sufficient period of time and, to the extent that the opinion relied upon her knowledge of the hierarchy of the religion, she had accepted that that knowledge was incomplete. Accordingly, the appellants submit that Dr X's opinions on this subject were speculative and no more than subjective belief.
The appellants argue that it is not to the point to say (as his Honour did at [60]) that it would be open to the accused to adduce evidence with the respect to the practices of the Dawoodi Bohra community in NSW or (at [62]) with respect to variations in local or African Dawoodi Bohra community practices. Rather, the complaint is that Dr X's expertise did not permit her to give the opinions the Crown was seeking to adduce from her.

[117]

Particular opinions

The appellants also make complaint as to various of the findings made by his Honour as to specific opinions the Crown sought to adduce from Dr X (by reference to paragraph numbers taken from the Crown's "Narrative of Dr X's Expert Opinions" submitted at the pre-trial - see pre-trial MFI 31).
First, as to the opinion described at [9] (as to the utensils used for the procedure), the appellants complain that this was not based on specialised knowledge, but rather was based on a conversation that Dr X had with one person (the circumciser) (see his Honour's consideration of this point at [47]). The appellants submit that subjective belief based on one account could not fall within the concept of "knowledge" approved by the High Court in Honeysett.
Second, as to Dr X's evidence concerning a ritualistic khatna procedure (set out at [23]-[24] of the Crown's narrative; set out at [64] of Judgment No 3) the appellants say that that evidence was based on a single conversation with the circumciser (see PT 437). The appellants note that Dr X's evidence was that she had not heard it discussed among women (PT 437), from which she concluded that it must be rare (PT 437); that Dr X did not ask the women who were the subject of her study about this (PT 462) and that in recent times she had not read any information on it (PT 437). It is submitted that this was an insufficient basis for Dr X's knowledge and that her opinion was based on speculation (contrary to his Honour's conclusion that these opinions were based entirely upon knowledge acquired from study and research for the 1991 article: see [65]).
As to Dr X's evidence about the attributes of circumcisers (see Crown's narrative at [31]-[36]; his Honour's reasons at [70]), the appellants point out that his Honour accepted that Dr X's opinions were based on a conversation with a single circumciser (at [72]) but nevertheless ruled these opinions admissible (at [75]) as being relevant to the question of whether Magennis was the circumciser in Sydney (at [74]). The appellants again point out that these opinions were limited to India in the period 1990-1991.
Thus it is submitted that Dr X's evidence did not fall within the exception to the opinion rule in s 79 of the Evidence Act; that she did not have specialised knowledge that enabled her to express conclusions regarding khatna in the Dawoodi Bohra community and in particular khatna in the Dawoodi Bohra community in Australia in 2009-2012; and that her opinions were not wholly or substantially based on her knowledge - rather, they were a combination of speculation and subjective belief. It is submitted that her evidence should have been ruled inadmissible.

[118]

Crown submissions as to opinion evidence objection

As to the criticisms made by the appellants of the temporal and geographical dislocation between Dr X's research into khatna and the facts in issue, the Crown argues that the expert evidence was addressed to a practice that was consistent over time and unaffected by location and submits that the appellants' criticisms go to questions of weight rather than admissibility.
The Crown submits that the criticism that Dr X was not aware of studies in relation to khatna in Dawoodi Bohra communities in Australia, Tanzania or Kenya does not support the appellants' argument that his Honour erred in finding that there is a field of specialised knowledge involving the practice of khatna or female circumcision in the Dawoodi Bohra community (pointing out that there is no evidence of any such studies in relation to khatna in Dawoodi Bohra communities in Australia, Tanzania or Kenya). The Crown points to the observation by the trial judge (at [35]) that the subject nature of the field is unusual and that there may be very few persons qualified in the area.
As to the criticism by the appellants of his Honour's findings that the knowledge that Dr X had was acquired from her study, training and or expertise and that this was specialised knowledge (at [34], [36]), the Crown argues that, to the extent that the appellants suggest that Dr X's knowledge or understanding of the Dawoodi Bohra was based only on her personal experience, that is incorrect (pointing to the articles written by Dr X on the cultural practices of Dawoodi Bohra women using scientific research methodology). The Crown argues that Dr X's personal experience of khatna was a matter that, when taken together with her study and training, supported the trial judge's conclusion that she possessed specialised knowledge (see [34], [36]).
The Crown takes issue with the proposition that the word "experience" in s 79(1) of the Evidence Act does not cover a person's life experience as a member of a community or the subject of a cultural practice. The Crown argues that the decision of the majority of the High Court in Honeysett at [23] is not authority for the submission that the term "experience" in s 79(1) is limited to "working in a particular way over a period of time" (written submissions for the appellant Magennis at [246]).
Insofar as the appellants argue that, because the Dawoodi Bohra community do not speak openly about khatna and Dr X had not seen it performed, Dr X could not have acquired specialised knowledge from her experience as a Dawoodi Bohra woman, the Crown submits that this fails to take account of Dr X's evidence that more than 50 women spoke to her about khatna during her research.
As to the criticisms made of Dr X's 1990/1991 study and article as founding a conclusion that Dr X possessed specialised knowledge in relation to the particular topics identified at [11] of Judgment No 3 and in the Crown's narrative (see [694] above), the Crown submits that these are not well founded. In particular, the Crown submits that the fact that the article was not peer reviewed does not affect its cogency as a basis for finding Dr X had specialised knowledge (submitting that this submission wrongly incorporates notions of reliability). The Crown points to Dr X's evidence that she employed conventional research techniques in researching the article; and rejects the proposition that the article was "based on informal conversations", pointing to Dr X's evidence that she had prepared questionnaires before she interviewed the women; that she had a list of questions; and that she had read and referred to secondary sources on female genital mutilation. The Crown notes that s 79 of the Evidence Act does not prescribe what may qualify as a "person's training, study or experience".
As to Dr X's inability to recall the questions she asked, the Crown submits that this does not mean that she did not have specialised knowledge, pointing to her evidence that she was well acquainted with scientific research methodology and employed that in her preparation of the article. Similarly, it is said that the fact that Dr X could have asked other questions does not affect the capacity of the research to provide a basis for specialised knowledge.
The Crown says that Dr X's lack of anthropological expertise is irrelevant, pointing to Dr X's qualifications as a psychologist and social scientist. The Crown argues that Dr X's failure to distinguish properly between the clitoris and the prepuce did not affect her knowledge of the cultural practice of khatna, again noting that she was not relied upon by the Crown as an expert on anatomy and arguing that, for the purpose of the trial, no distinction was made between the clitoris and the prepuce. Similarly, it is said that the fact that the Gujurati word for female genitalia, "gaan", does not distinguish between the different structures of the female genitalia cannot affect the question whether Dr X had specialised knowledge.
As to the criticism made of the finding that Dr X was qualified to give evidence about the "profile of a circumciser", the Crown argues that Dr X's knowledge of the profile of a circumciser was not based solely on a conversation with one person, but was also based on conversations with women concerning khatna within the Dawoodi Bhora community (for the purpose of study and research) that extended to discussion of persons who would carry out procedures of this type and in what circumstances (as his Honour noted at [72]). In any event, the Crown submits that there is no principled reason why an interview with a particular subject undertaken by an academic for the purposes of academic research and conducted according to recognised methodology cannot constitute "specialised knowledge" within the meaning of s 79(1). The Crown further maintains that the peculiarity of Dr X's field of knowledge does not preclude it from being a field of specialised knowledge.
The Crown submits that it is clear from analysis of Dr X's evidence that her specialised knowledge was properly acquired by experience, study and research and resulted in the acquisition of facts, truths and principles which went beyond mere subjective belief or unsupported speculation and hence that no error is demonstrated in his Honour's finding that Dr X's evidence satisfied the requirements of s 79(1) of the Evidence Act.

[119]

Determination as to opinion evidence objection

To fall within the exception under s 79(1) of the Evidence Act the evidence must satisfy two conditions: first, the witness must have specialised knowledge based on his or her training, study or experience (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32] ("Dasreef"); Honeysett at [23]); second, the opinion must be wholly or substantially based on that knowledge (Dasreef at [32]; Honeysett at [24]).
In Honeysett at [23] it was said that specialised knowledge is to be distinguished from matters of common knowledge; that the person's training, study or experience must result in the acquisition of knowledge; and that the concept of "knowledge" connotes more than "subjective belief or unsupported speculation" but that it "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds".
In Tuite v R (2015) 49 VR 196; [2015] VSCA 148 at [73] (to which his Honour referred at [32]) it was said that "[i]n assessing the admissibility of the evidence, the judge must, of necessity, ascertain and define with some precision the scope, and the limits, of the witness's specialised knowledge".
In Dasreef, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (quoting Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85]) said (at [37]) that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study, or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". Their Honours later observed that "[a] failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight" (at [42]).
The specialised knowledge that Dr X possessed that was relevant to the issues in the trial was as to the practice of khatna in the Dawoodi Bohra community in India in a period up to but no later than 1991 as gained from her sociological studies in 1990-1991 and her own personal experience of khatna in 1950 or 1951. The fact that it is a relatively narrow area of knowledge (and was based largely on anecdotal accounts from the women Dr X interviewed) does not mean that it is not an area of specialised knowledge, and indeed it is difficult to see how one would obtain specialised knowledge of such a cultural practice other than by research of the kind Dr X conducted or research conducted upon those in the hierarchical leadership of the Dawoodi Bohra community (which, having regard to the telephone intercepts, is unlikely to have been forthcoming).
In our view, what was problematic was the evidence adduced from Dr X as to the static nature of the procedure; the non-existence of ritualistic khatna; and the reasons for the cultural practice. One cannot conclude that simply because Dr X was a member of the Dawoodi Bohra community and had not heard of a change to the procedure in the period since 1991, her opinion as to the first two of those matters was derived from her area of specialised knowledge. Nor is her speculation as to the reason for the procedure a matter derived from any area of specialised knowledge. That evidence was not in our opinion admissible under s 79(1) of the Evidence Act, and it should not have been admitted.

[120]

Discretionary exclusion

Finally, the appellants challenge the conclusion by his Honour (at [85]) that Dr X's evidence would provide assistance to the jury in understanding "the nature and practices of the Dawoodi Bohra community, with particular reference to Khatna or female circumcision". They submit that Dr X's expertise did not permit her to give evidence on a topic so broadly framed. It is submitted that Dr X's evidence, by reason of her limited expertise, was of very low probative value, relating only to the situation in India in the 1950s and the early 1990s. The appellants point to the difficulties identified above with Dr X's opinions as to what the khatna procedure involved and the proposition that the khatna procedure was static.
It is submitted that his Honour did not analyse the risks of unfair prejudice associated with the admission of Dr X's evidence. The appellants maintain that there was a significant danger that her evidence would cause unfair prejudice, in that there was a risk that the jury would assign the evidence greater weight than it deserved (by reason of Dr X being presented to them as an expert and in particular, an expert on a culture about which they would likely have very limited knowledge). It is submitted that the danger of unfair prejudice and the risk of impermissible reasoning was amplified by the gaps in Dr X's knowledge in respect of female anatomy and the various parts of the clitoris as well as in respect of the culture of the Dawoodi Bohra communities across the world and at different times.
The appellants identify two further risks in admitting the evidence that are said to be significant: first, that the jury would engage in a form of impermissible tendency reasoning (namely, that the jury would conclude that Magennis had performed female genital mutilation on C1 and C2 because members of the Dawoodi Bohra community practise a particular form of female circumcision and the appellants were members of the Dawoodi Bohra community and/or would conclude that what members of the Dawoodi Bohra community did in 1990/1991 was the same as what they did in the present day); and, second, the risk that the jury would use this evidence to find that references to khatna in the telephone intercept material were admissions in circumstances where that term may have been used by the appellants in a different way.

[121]

Crown submissions as to discretionary exclusion

The Crown maintains that his Honour correctly assessed the probative value of Dr X's evidence as being founded in its capacity to assist the jury in understanding matters outside their experience and knowledge, namely the nature and practices of the Dawoodi Bohra community with particular reference to khatna or female circumcision. As to the risk of prejudice, the Crown points to the directions given by the trial judge to the jury as to the use of expert evidence generally and as to Dr X's evidence.
As to the former, his Honour said (at SU 43-44): … the value of any expert opinion is very much dependant on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion is based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge. …. With respect to any of the expert witnesses you should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of a particular expert, you do not have to act upon it. This is particularly so where the facts on which the opinion is based do not accord with the facts as you find them to be. You are also entitled to take into account your common sense and your own experience if they are relevant to the issues upon which the expert evidence relates.
As to the latter, his Honour said (at SU 81): Look at, consider and assess the factual matters underlying her opinions, her own experience, both with respect to the procedure carried out on her, but more generally, her involvement in the Dawoodi Bohra community in India, and then the research which she carried out. That research, of course, has been challenged, both as to methodology, and as to issues such as peer review of the publication. It is of course, a single article in a journal, but it is an article which the Crown says bears directly upon the subject matter of this trial.
His Honour, noting that there had been challenges to the evidence of Dr X in a number of respects, went on to say (at SU 83): In the end, it is a question of what Dr X says about her experiences in India, her writings in the early 1990s and how they apply to what happens in this State between 2009 and 2012.
The Crown notes that his Honour carefully directed the jury to ensure that no greater weight was placed on Dr X's evidence merely because she was presented an expert on a topic upon which the jury would probably have limited knowledge; and highlighted the need to scrutinise and determine whether Dr X's evidence could be applied to the time in which it was alleged the khatna procedure occurred on the complainants.
In those circumstances it is submitted that there was no real risk that the jury would use the evidence of Dr X to engage in impermissible reasoning and no danger of unfair prejudice.

[124]

(a) C2's competence to give evidence

As noted earlier, C2 was first interviewed in relation to the matter on 29 August 2012 at her school and this interview was recorded. She was at that time six years and ten months old. Relevantly, C2 has a mild intellectual disability (as explained further below).
In advance of the trial the Crown gave notice on 12 May 2015, pursuant to s 306V of the Criminal Procedure Act 1986 (NSW), that the prosecution intended to adduce the recorded interview of C2 as her evidence in chief. An issue then arose as to C2's competence to give evidence. The hearing of evidence and submissions on that issue took place on 17-18 June 2015. Separate counsel appeared for C2 (and C1) on that occasion. There was before the trial judge, among other things, the DVD containing the recorded 2012 interview. Expert evidence was adduced by the Crown from a psychologist (Dr Susan Pulman) and by counsel appearing for C2 from another psychologist (Dr Gary Banks). The trial judge examined C2 as part of the process of determining her competence to give evidence.
The trial judge found that C2 was competent to give sworn evidence at the trial (R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306 at [130] ("Judgment No 4")). The appellants maintain that his Honour erred in finding that C2 was competent to give evidence at the trial (and in finding that she was competent to give sworn evidence). They further maintain that his Honour ought to have found that she was not competent to give evidence as at the date of the interview (and note that no oath or affirmation was given or made by C2 as at the date of the 29 August 2012 interview, such that her evidence on that occasion - admitted as part of her evidence in chief at the trial - was unsworn).
Before turning to his Honour's reasons on the issue of competence, it is relevant to note certain aspects of the 2012 interview (which this Court has itself viewed, as requested during the course of the appeal hearing) and the expert evidence as to C2's disability and its impact on her competence to give evidence.

[125]

C2's interview in 2012

The Crown notes that in the 2012 interview a considerable amount of time was spent exploring the issues of truth and lies and that C2 was able to distinguish that it was the truth to say that she walked to school that day and a lie to say she caught the train. When asked whether it was a good thing or a bad thing to tell a lie, she said that it was a bad thing.
Significantly for the purpose of considering some of C2's "don't know" responses during the interview, the interviewer had told C2 that she could say if she did not understand something or did not want to talk about something. The significance of this is that on a number of occasions when C2's initial response was a "don't know", when that response was clarified, she indicated that she did not want to answer.
On numerous occasions throughout the 2012 interview C2 provided non-verbal responses, either nodding or shaking her head, and she often shrugged her shoulders. She also appeared on various occasions to have lost concentration or to be distracted.
The Crown notes that on some occasions when C2 had answered "I don't know" she was nevertheless then able to provide certain details on the topic of the question: pointing by way of example to the fact that although C2 did not know where she lived (or, it should be added, the names of her parents other than Mummy or Daddy), she was able to describe the people that lived with her and the age of her sisters and to give some information as to what she enjoyed doing with each family member.
The Crown acknowledges that there were some difficulties in eliciting information from C2 in the interview, but submits that her ability to give details about some topics displayed an ability to comprehend questions that were asked of her and to provide an appropriate response to those questions. The Crown submits that when C2 was more settled and to some extent slightly more distracted by the opportunity to draw, she became notably more forthcoming in her interview.
The Crown submits that C2 did not simply repeat "don't know" answers, nor did she consistently give an acquiescent response to questions, but was able to agree and disagree with propositions put to her by the interviewers.
As to the questions about the procedure that had been performed on her, C2 could not tell the interviewers about somebody coming to her house for something special that year; said that she did not know about somebody coming to her house to do something special; and said that she did not know what khatna was and that she had not heard that word before.
When C2 was asked if she had had a cut on her private parts, she answered "Yes". She was unable to say when she was cut but was able to identify that it occurred at home, in her parents' bedroom, when she was lying on a white cushion. C2 said that it was not on a school day and that it was performed by a woman, who she had known was coming that day. The Crown emphasises that when C2 was asked the non-leading question, "so what did you feel when it happened?", she was clearly able to identify that she felt pain in her bottom. The Crown submits that when the questions relating to the khatna procedure were put to C2 in a structured, straightforward fashion, C2 was able to provide meaningful rather than "don't know" responses and argues that the unprompted detail provided by C2 indicated that she was not simply acquiescing to the interviewer.

[126]

Expert evidence

Dr Banks is a forensic and clinical psychologist. He had not seen the DVD of C2's recorded interview. He was retained to provide a psychological assessment evaluating C2's competence to give evidence. He provided a report dated 20 November 2014.
Dr Banks noted in his report (Ex PT1) that A1 (C2's father) had reported to him that C2 had evidenced developmental difficulties and had seen various health care professionals commencing at the age two and a half years (at [4]-[5]) and that she had been diagnosed with a mild-moderate intellectual delay at the age of four years (at [6]). He noted that A1 had reported to him that initial tests indicated that C2 had Prader-Willi Syndrome but that confirmatory testing had not yet been conducted (at [9]) and said that early genetic testing was strongly indicative of the presence of the Syndrome (at [28]). (Pausing here, A1 admits that he provided Dr Banks, as part of the family history, with instructions as to the false Africa checking story.)
Dr Banks explained that Prader-Willi Syndrome is a rare disorder that affects various aspects of a person's life including eating, behaviour and mood, physical growth, and intellectual development (fn 1 to his report).
Dr Banks had interviewed C2. He described her response to questions during the interview as follows (at [15] of his report): She was often noted to provide answers without hearing all of the instructions; subsequently instructions were often read out multiple times. [C2] also provided her answers very quickly. As these answers were mostly incorrect, it indicated that she may not have fully processed the instructions, and did not spend time considering her response.
Dr Banks administered the Weschler Intelligence Scale for Children (fourth edition) and said that C2's cognitive ability was found to fall within the "Borderline range" and was equivalent to or better than that of 4% of children her age (at [19]). C2's verbal comprehension abilities were tested using the Verbal Comprehension Index, on which C2's score "fell in the upper level of the Borderline range (8th percentile) compared to other children her age" (at [20]). On the Working Memory Index test, C2 fell within the Borderline range (6th percentile) compared to other children her age (at [21]); in the Perceptual Reasoning Index, she fell within the Borderline range (4th percentile) compared to other children her age (at [22]); and in the Processing Speed Index, she was at the Low Average range (16th percentile) compared with other children her age (at [23]). C2 fell in the Low Average-Borderline range across all sub-tests (at [26]).
Dr Banks reported that C2's responses "indicated that she was able to consistently recall the main events and ideas or 'gist' (themes) of the stories, but tended to omit specific details and subsequently lose them over the delay period" (at [26]; see also [31]).
Dr Banks' conclusion was: that on a composite measure of intelligence C2 was within the Borderline range (4th percentile); that her level of functioning is in the mild range of Intellectual Disability as per DSM diagnostic guidelines. Dr Banks noted that "her difficulties have reportedly been present since early childhood" (at [29]).
Dr Banks' opinion was that C2's capacity fully to attend to tasks as required would be impaired compared to similar aged children (at [32]) and he said that C2, who was nine years old at the time of the assessment, "would be considered to be operating at a cognitive and emotional level of a six year old" (at [32]).
After identifying particular difficulties of examining and cross-examining children (and C2 in particular) (see [32]), Dr Banks' opinion (at [33]) was that C2 "would likely struggle to attend to, and reliably participate in a lengthy witness examination and cross-examination process", noting that additional difficulties would be likely to be encountered due to the technical constraints and distractional element posed by a small room, video camera and television screen-based communication.
Dr Banks nevertheless considered that C2 could be examined, giving the opinion that C2 would be able to "provide brief, general but reasonably reliable responses" (at [35]). In his report, Dr Banks set out suggested techniques to maximise the quality of her evidence, including that: open ended questions should be used; closed questions "should be avoided at all costs due to the likelihood of getting an acquiescent response"; and that repeated questions should not be asked "due to the likelihood of her altering her response simply by virtue of the question being repeated to her by a perceived authority figure" (at [34]).
Dr Banks said that C2 could only give a thematic recall of the issue under discussion and would be most unlikely to recall specific details (at [34]-[35]). (The appellants submit that, having regard to the limited issue at trial - i.e. whether there was a nick or cut to the clitoris - this militated in favour of C2 being ruled incompetent to give evidence with sufficient specificity about whether there was in fact a cut or a nick and as to the body part to which any cut or nick was done.)
Dr Pulman had interviewed C2 on 31 March 2015 (Ex PTC). Her opinion was based on that interview and her review of two reports of Dr Banks dated 20 November 2014 and 9 March 2015 respectively (at 2). Her report does not indicate that Dr Pulman was provided with or had watched C2's recorded interview. Nor does it appear that she was provided with the same family history by A1.
Dr Pulman administered the Wechsler Intelligence Scale for Children and said that C2's intellectual function fell within the Borderline range and at the 3rd percentile, her results being "consistent with a child with a mild intellectual disability" (at 5). Dr Pulman concluded that C2 had difficulties concentrating and was impulsive ("jumping in rather than waiting for questions or instructions to be completed") (at 11). Dr Pulman was of the opinion that "should [C2] be motivated to answer questions and give evidence she has the capacity to do so" (at 11). (The appellants submit that this last opinion "is not quite the question" posed by s 13(1) of the Evidence Act and that a further consideration arising under that section is whether a person is competent to give evidence about a particular fact.)
Dr Pulman agreed with Dr Banks' opinion that C2 "would likely struggle to attend to and reliably participate in, a lengthy witness examination and cross-examination process" but, as noted above, was of the view that C2 had the "capacity to give evidence should she be motivated to do so" (at 5). Dr Pulman indicated that whilst C2 had not heard of the word "truth" it was evident that she was able to distinguish between a truth and a lie.
The Crown thus submits that both the experts' reports indicate that C2 had capacity to give evidence (Dr Banks being of the view that she could give brief, general but reasonably reliable responses; Dr Pulman of the view that she had capacity to give evidence should she be motivated to do so).
Dr Pulman commented that C2 did not wish to discuss her mother or father and would shrug her shoulders if she was asked questions about them and said that C2 "appeared particularly reticent to discuss topics many children are willing to talk about such as family life, friends and fun things they like to do even when provided with encouragement in a positive environment". Dr Banks said that C2 provided information about her mother without much difficulty.

[127]

Trial judge's examination of C2 on the competence hearing

The appellants point to the following matters appearing on the transcript of the examination of C2 on 18 June 2015 by the trial judge, in the context of the application as to C2's competence (see PT 57ff): that C2 had difficulty answering questions about who was present in the room with her (though the woman in the room with her was a member of her family) (PT 57.32-58-4); that C2 misstated the date of her birthday (PT 58.38-58.39); that while C2 answered questions relating to "fairly non-controversial" matters including what her favourite subject at school was (PT 58-60), and agreed that there were some things that her teacher said she could not do, she responded "I don't know" to the question as to what that something was (PT 60.10-60.15); that having agreed that she had a favourite TV show, C2 responded "I don't know" when asked what her favourite TV show was (PT 60.17-60.21); and that she said "yes" when asked if she watched TV at home but then said "I don't know" in response to the question "What do you watch on TV" (PT 60.23-60.27).
As to questions regarding the distinction between the truth and a lie, the appellants emphasise the following exchange (PT 62.24-62.40): Q: Can you see what colour my clothes are? A: Red. [which was correct] Q: If I said to you I am wearing blue clothes, would that be the truth? A: Yes. [which was incorrect] Q: Do you know what a lie is? A: No. Q: Is telling the truth the right or the wrong thing to do? A: Right. Q: If you don't tell the truth is that the right or the wrong thing to do? A: The wrong. Q: Tell me why it's a wrong thing? A: I don't know.
The appellants note that C2 correctly identified that it would not be true if his Honour said there was a puppy dog in the room with her (PT 62.42-62.45); that C2 then said she had not heard the word "lie" (PT 62.47-62.48; T 62.50-63.2), though she had been questioned on this only shortly before (PT 62.20); that C2 agreed that she thought it was important to tell the truth in court but did not know why it was important to tell the truth in court (PT 63.11-63.18), did not know what would happen if she did not tell the truth in court (PT 63.20-63.21), and did not verbally respond to the question "It's always important to tell the truth but it's even more important in Court than anywhere else, did you know that?" (PT 63.23-63.25).
From PT 63.27-63.45, there was the further exchange: Q: You understand that if you are asked questions in court it's very important that you tell the truth? A: No, I don't know. Q: You told me earlier that you knew what telling the truth meant. Is it always important to tell the truth? A: Yes. Q: Will you tell the truth if you are asked questions in Court? A: Yes. Q: Do you promise not to say anything that is not true in Court? A: No. Q: Would you do your best to tell the truth? A: Yes. Q: And why is it important to tell the truth? A: I don't know.
The appellants note that in further questioning C2 agreed that she promised only to tell the truth in court (PT 66.22-66.23), but point out that this was in the form of an affirmative answer in response to a leading question and was inconsistent with what she had said earlier in the questioning (see PT 63). It is submitted that it meant nothing, given C2's earlier answers that she did not know what a lie was (see PT 62).
The appellants submit that it is apparent from the transcript that at the trial on 16 September 2015 C2 had difficulties giving evidence; and that his Honour should at that stage have revised his earlier ruling that C2 was competent to give evidence, though it is accepted that his Honour was not asked to do so. It is submitted that the difficulties meant that it was not possible for C2's evidence to be tested in any real or meaningful way by counsel for the appellants (even apart from the complaint made as to his Honour's ruling that leading questions could not be used in cross-examination by counsel for the appellants notwithstanding that leading questions were permitted to be used by the Crown in the JIRT interview).

[128]

Trial judge's findings - C2's competence to give sworn evidence

His Honour referred to the expert evidence concerning C2 and her mental age. His Honour accepted that C2 was suffering from a mild intellectual disability and had the cognitive and emotional level of a six-year old child (Judgment No 4 at [124]; references to his Honour's reasons in this section are to Judgment No 4). However, his Honour noted that C2 was in the age-appropriate year at school and functioned in a normal school environment with additional learning assistance.
His Honour took into account the relatively confined topic in relation to which C2 would be called to give evidence and the issues in dispute at trial (at [125]). His Honour considered that any questioning of C2 ought not to be complex or protracted (at [125]).
His Honour then stated (at [126]-[128]): I am satisfied that C2 has the capacity to understand a question about facts pertinent to the relatively narrow issues in the trial, so as to satisfy the undemanding test posed by s.13(1)(a) of the Act. For the purposes of s.13(1), I am satisfied that C2 is competent to give evidence. She is now nine years of age. She was able to engage with me and answer questions on a range of topics. I have regard to the examination of C2 which I undertook on 18 June 2015. I sought to utilise questions framed in a way that a nine-year old child (with the intellectual disability and chronological age of C2), and with the limited language skills of a child can understand: R v RAG [2006] NSWCCA 343; MK v R at [69].
When determining the issue whether C2 was capable of giving sworn evidence, his Honour stated (at [129]-[130]): Having found C2 to be competent to give evidence for the purpose of s.13(1) of the Act, I move to s.13(3) to consider the question whether C2 is competent to give sworn evidence. I sought to direct some questions to C2 to assist a judgment as to whether she had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence (PT 62-63, 66). I am satisfied from the examination of C2, and the other evidence before the Court, that she has the capacity to understand that, in giving evidence, she is under an obligation to give truthful evidence. Having reached this conclusion, I express my satisfaction that C2 is competent to give sworn evidence at the trial of the Accused persons. In these circumstances, it is, of course, not necessary to move to consideration of competence to give unsworn evidence for the purpose of s.13 (5) of the Act.
C2's evidence at trial has been summarised earlier in these reasons. Objection was taken by counsel for Vaziri and A2, in the absence of the jury, as to the way in which C2 took the affirmation, there saying (T 157.23-157.24): there was certainly a perception in my eyes of a question as to whether she actually had a comprehension of what she was being asked to do.
Counsel for Magennis adopted the submission of counsel for Vaziri and A2 (T 157.28-157.29). The appellants note that the trial judge then observed that C2 "seems a little more hesitant today than when I saw her back in June" (T 158.2-158.3) but did not revisit the competence ruling (T 158.43-158.45).

[129]

Appellants' submissions

As to his Honour's reasons for finding that C2 had competence to give evidence, the appellants submit that while the complexity of the questioning was important in this determination, it was not decisive. Further, even though the appellants accept that the questioning related to a relatively confined area in dispute (that is, whether there was a nick or a cut to the clitoris or other part of female genitalia), they submit that the subject area of the area in dispute was critical. The appellants emphasise that the evidence before the Court suggested that C2 did not know where her private parts were and say that this impacted her ability to understand any question about a fact having regard to the issues in dispute; and say that this was a matter that militated in favour of her being ruled not competent.
It is submitted that the narrow issues in dispute at trial meant that an ability to give evidence of specific details about what happened was critical and that C2 was not able to do this; that many of the answers to the questions asked by his Honour were unresponsive or indicated that C2 did not know; and that her evidence on the competence hearing indicated an inability to understand questions about non-controversial subjects. The appellants accept that mere lack of memory or difficulty in recalling events is not sufficient to establish incompetence (referring by way of example to Brown v R [2006] NSWCCA 69 at [24] in respect of the previous iteration of s 13(1) of the Evidence Act), but argue that the difficulties that C2 had in relation to the questions and answers on the voir dire (and at trial) regarding her competence went beyond difficulties in recalling events.
Further, it is submitted that the incapacity of C2 to give evidence could not be overcome. It is said that reference by Dr Banks to techniques that could be implemented in order to maximise the quality of her evidence did not necessarily mean that C2's incapacity could be overcome. It is submitted that the incapacity to understand a question about a fact and give an answer about a fact related to C2's particular incapacity to give evidence about temporally distant events and that she could only give evidence about the gist of the issue under consideration; and that the recommendations of Dr Banks (at [34] of his report) did not affect this incapacity.
The appellants submit that the cross-examination of C2 shows the great difficulties C2 had in responding to questions in Court (understandable given her age and cognitive impairment) and her lack of understanding of her obligations as a witness. The appellants maintain that this meant that she was not competent to give evidence, nor could she be properly cross-examined. It is submitted that her desire not to answer questions about what happened meant that she was not able to give evidence about a fact and was not available for cross-examination. As such, it is submitted that the recording of her interview should not have formed part of the evidence against the appellants and should have been withdrawn by his Honour.
Further, it is submitted that if the Court is satisfied that his Honour was correct in determining that C2 was competent to give evidence, his Honour nevertheless erred in finding C2 competent to give sworn evidence (competence in that regard being directed to the question of whether C2 had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence - see s 13(3) of the Evidence Act).
The appellants note that in The Queen v GW, the High Court said (at [26]) that: A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence.
There, it was said that an affirmative answer to a question to the effect of, "do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?", was not to be understood as necessarily conveying that the witness had the capacity to understand that, in giving evidence, she was under such an obligation (at [26]).
It is submitted that his Honour's examination of C2 indicated that she had a very limited grasp of the distinction between the truth and a lie (if any) and did not understand she was under an obligation to tell the truth when giving evidence.
Reference is made to the observation by Duggan J in R v Climas (1999) 74 SASR 411; [1999] SASC 457 that, for the purposes of giving sworn evidence, a child under 10 years old should regard the obligation to be truthful as a reference to the importance of telling the truth in the witness box by comparison to other every day occasions as a serious matter which may have serious consequences for the accused; to the recognition in Grindrod v R [1999] WASCA 44 at [34] that monosyllabic answers by a child in response to a series of leading questions is an unreliable guide to competence; and to the proposition that asking only whether the child understands the term "obligation" or whether they know it is important to tell the truth is also insufficient (referring to MK v R [2014] NSWCCA 274 at [69]; R v RAG [2006] NSWCCA 343).
The appellants refer to points in the transcript where C2 did not know what a lie was; said it would be the truth to say that the judge wearing blue clothes (despite earlier stating that his clothes were red) (PT 62.24-62.40); did not know why not telling the truth was the wrong thing to do (PT 62.39-62.40); and thought it was important to tell the truth in court but did not know why it was important to tell the truth and did not know what would happen if she did not tell the truth (PT 63.11-63.21).
The appellants observe that many of the answers given by C2 in answer to the trial judge were "yes", "no" or "I don't know" - that is, monosyllabic responses (see PT 62-63). They point out that C2 did not know that it was very important to tell the truth when asked questions in court (PT 63.27-63.29); and that C2 said that she would tell the truth if asked questions in court but would not promise to say anything that is not true and that she did not know why it was important to tell the truth (PT 63.35-63.45), although agreeing that she would promise only to tell the truth (PT 66.22-66.23).
The appellants say that at no point was C2 asked whether she understood that she was under an obligation to tell the truth or what the consequences would be, as she understood them, if she told a lie. The appellants submit that in these circumstances the trial judge could not be satisfied that C2 had the capacity to understand that she was under an obligation to tell the truth such that she was competent to give sworn evidence under s 13(3) of the Evidence Act and nor did her answers to the questions asked (when looked at alone or in combination with the expert evidence on C2's capacity) indicate that the provision was satisfied.
As to C2's competence at the time of the 29 August 2012 interview, which took place when C2 was six years old, the appellants argue that C2's answers and responses in the interview strongly indicate that she had trouble understanding questions: for example, she gave incorrect answers and often shrugged her shoulders or said she did not know or that she did not want to tell. She did not know what the private parts were called, which made problematic the leading question, "We heard that you had had a cut on your private parts. Is that true?", to which C2 said "yes". The appellants note that Dr Banks had advised that leading questions should be avoided because of the likelihood of getting a positive response.
In relation to her ability to give sworn evidence during the 29 August 2012 recorded interview, the appellants point out that C2 shrugged her shoulders when asked what a lie was; did not know what a lie meant; and shook her head when asked what the truth was. The appellants note that although C2 was able correctly to identify that if somebody said she got the train to school (when she had walked to school) that would be a lie; but shrugged when asked what would be the truth. The appellants say that this shows that at best C2 was able to distinguish between the truth and a lie but could not positively say what was true or what was a lie. She said that it was a bad thing to tell a lie, but that she did not know what happened if she told a lie; she agreed to only tell the truth in the interview.
The appellants note that his Honour did not assess whether C2 was competent to give evidence at the time of her recorded interview or whether she was competent to give sworn evidence at that time. They submit that at the time of the recorded interview, C2 was not competent to give evidence as she did not have the capacity to understand a question about a fact or give an answer that can be understood about a fact; and that there was no basis on which the Court could be satisfied that she was competent to give sworn evidence having regard to the questions asked by the interviewer.
The Crown had sought that the recorded interview become C2's evidence in chief at the trial under s 306V(1) of the Criminal Procedure Act. C2 fell within the definition of a "vulnerable person" within the Criminal Procedure Act, being both a child and having an intellectual disability (see s 306M).
The appellants point out that in RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221, McClellan CJ at CL (at [8]) indicated a tentative view that competence only needs to be determined at the time a witness is called to give evidence; and observed that whether competence is to be assessed at the time of the interview would require careful consideration of s 9 of the Evidence (Children) Act 1997 (NSW) (the equivalent of what is now s 306S of the Criminal Procedure Act) and s 13 of the Evidence Act.
The appellants argue that once it is accepted that the recording forms (wholly or partly) the evidence in chief of a witness, then the provisions in Part 2.1 of the Evidence Act are engaged and that, while an inquiry into the competence of the child need not occur at the time the interview is conducted, if an issue as to the competence of the child arises at the trial, the Court must also consider whether the child was competent to give evidence at the time the recording was made, because the representations made in that recording form the evidence in chief of that child.
Thus, the appellants submit that his Honour was required to assess whether C2 was competent to give evidence at the time the recording was made (and, if satisfied that C2 was competent, to consider whether she was competent to give sworn evidence). It is submitted that his Honour could not be satisfied that she was competent to give evidence at the time of the interview, let alone sworn evidence.
Further, it is submitted that even if his Honour had concluded that C2 was competent to give sworn evidence at the time of the interview, C2 did not take an oath or make an affirmation before the interview as required for the giving of evidence under s 21(1) of the Evidence Act (pointing to Buggy v Reinisch [2010] FCA 917 at [69] as to the importance of this).

[130]

Crown submissions

The Crown emphasises the trial judge's advantage of viewing C2 and assessing her manner and demeanour (and of being able to contrast this with C2's answers and demeanour on the DVD interview). The Crown notes that the trial judge was also aware (and it was accepted by the parties) that C2 was to give evidence on a confined topic and that her questioning would not be complex or protracted. It is submitted that in these circumstances, including where C2 was able to engage with the trial judge and answer questions on a range of topics, it was clearly open for the trial judge to be satisfied that C2 had the capacity "to understand a question about facts pertinent to the relatively narrow issues in the trial, so as to satisfy the undemanding test posed by s 13(1)(a)" (Judgment No 4 at [126]). The Crown submits that the appellants have not demonstrated that his Honour erred in finding on the balance of probabilities that the presumption of competence was not displaced.
The Crown submits that C2's answers in cross-examination do not indicate that she was not competent to give evidence, but rather that she was hesitant and did not necessarily want to give evidence. It is submitted that the fact that she was able to identify herself on the DVD, after telling counsel she did not know if she recognised anyone on the DVD, indicates that her evidence, when pressed, was truthful.
The Crown submits that, having regard to Dr Banks' opinion that C2's Working Memory Index placed her in the Borderline range and that she was less likely to recall specific details and sequences of events (see above at [743]-[744]), it is not surprising that C2 could not recall the events of her khatna procedure some years before and argues that C2's inability to recall the incident does not indicate that C2 was not competent to give evidence. Further, the Crown submits that C2's evidence at trial was consistent with the opinion of Dr Pulman that she was unwilling to give evidence about her family and family life.
The Crown points out that at no time during the course of the trial did counsel for any of the appellants seek to have the trial judge revisit his ruling in relation to the competence of C2. The Crown notes that on the question of capacity no submission was made at trial that C2 did not have the capacity to give an answer that could be understood to a question about the fact (see s 13(1)(b) of the Evidence Act); rather, it was submitted that C2 did not have the capacity to understand a question about the fact: s 13(1)(a) of the Evidence Act.
As to the submission that the trial judge failed to assess whether C2 was competent to give evidence at the time of her recorded interview in 2012 and that such an assessment was necessary, the Crown notes that the submission made by counsel for C2 at trial was that C2 was not competent to give evidence at the time of trial and that, accordingly, the focus of the application before his Honour was the assessment of C2's competence to give evidence in 2015. It is submitted that, in determining that issue, his Honour paid close regard to the 2012 interview (to which he referred in Judgment No 4). It is submitted that in those circumstances his Honour was not required separately to determine the issue of competence at the time of the police interview. The Crown submits that the appellants' submission that C2 should have been sworn or affirmed at the start of the interview should also be rejected, arguing that the interview was admissible by the operation of the provisions of s 306V(1) of the Criminal Procedure Act.
As to the alternative submission that the trial judge erred in finding C2 competent to give sworn evidence, the Crown notes that in The Queen v GW at [26] the High Court said: [A] child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence.
It is submitted that the answers provided by C2 during the examination by his Honour make clear that it was well open for the trial judge to be satisfied that the presumption that C2 was competent to give sworn evidence was not displaced. It is submitted that C2 showed that she understood that she was under an obligation to give truthful evidence. The Crown argues that although at times her answers were short, the form of the answer is not determinative, and the reaction and response evoked from the child will be critical; noting that the trial judge had the advantage of being able to make an assessment having regard to matters such as the inflexion of the voice with which the questions were answered and the confidence with which the answer was given.
The Crown submits that there is no requirement under s 13(3) of the Evidence Act that C2 be specifically asked whether she understood that she was under an "obligation" to tell the truth; rather, what s 13(3) requires is that a witness has the capacity to understand that, in giving evidence, she is under an obligation to give truthful evidence. The Crown submits that an understanding of the word "obligation" is not required by the section. Further, it is submitted that there is no requirement that C2 be specifically asked whether she understood what the consequences would be if she told a lie; the question remaining one of capacity, "not amenability to punishment" (Crown written submissions, [649]).

[131]

(b) Leading questions in "evidence in chief"

At trial, objection was taken to the use of leading questions in C2's recorded interview and further questions and answers obtained as a result of the initial use of leading questions. The impugned questions are those from Q194-Q197: Q194 We heard that, that that word 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 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 had a cut on your private parts. Is that true? A Yes.
Those questions were followed by: 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.
By reference to the preceding questions, the Crown submitted (at trial) that in context the impugned questions could be seen as an attempt to focus C2's attention after attempts to introduce the topic which had not previously elicited any response.
The Crown noted that following the above questions, C2 was able to give a significant amount of detail including where the procedure happened, what position she was in when it happened, what she was lying on, what colour the cushions were, that it was not a school day, that it was a woman who did it to her, and that she knew the woman was coming that day.
The Crown also noted that, C2 having again told the interviewer that she did not want to talk about it and having spoken about what she was drawing at the time, when the interviewer asked C2 how she felt when the procedure happened, C2 replied that when the procedure happened she felt hurting in her bottom (Q232-Q233).
The Crown's submission to the trial judge was that while it was arguable that Q194-Q200 had the potential to be leading questions, given the context of the interview and the subject matter, the questions were totally appropriate (since the interviewer had tried to raise the discrete topic of khatna many times before putting the impugned questions and it was only when the questions were framed in this manner that C2 was able to answer the questions). The Crown's application for leave under s 37(1) of the Evidence Act to adduce the answers to these questions relied on the factors in s 192(2)(a), (c) and (d) of that Act.
The Crown submitted that the answers to the impugned questions provided evidence that was critical to the Crown case, because it was evidence from C2 as to what she felt and where and thus it was direct evidence which formed the basis of one of the elements of s 45(1) of the Crimes Act.
In relation to the nature of the proceedings (Evidence Act, s 192(2)(d)), the Crown submitted that the questions were based on the discrete topic of female genital mutilation being performed on female children of a very young age. It was said that the nature of these proceedings involved each complainant giving evidence of particularly intimate and painful acts done to their person. Moreover, the proceedings were against C2's mother, to whom C2 was very close at the time and with whom she lived. The Crown submitted that given the material in the Crown case from which it could be inferred that C1 had been subjected to significant pressure to change her story whilst in the presence of C2, it would have been unfair to C1, C2 and the Crown to attempt to elicit this evidence again were the questions disallowed (particularly given the effluxion of time and the cognitive difficulties of C2).
It was submitted that had leave not been granted to extract the same important evidence from C2, some amount of time would have been required to attempt to elicit the same answers. This had the potential to add unduly to the length of the hearing. It may also have required an application pursuant to s 38 of the Evidence Act for leave to cross-examine C2 to explore issues such as why she could not remember the events and to query whether she had been told not to say anything about it by others.

[132]

Trial judge's ruling

On 10 September 2015, the trial judge overruled the objection to the challenged parts of the recorded interview of C2 (PT 731-732). His Honour's reasons for so doing were published on 5 February 2016 (R v A2; R v KM; R v Vaziri (No. 21) [2016] NSWSC 24 ("Judgment No 21")).
The trial judge determined (at [30]) that Q194 and Q197 were leading questions but that the balance of the questions were not leading.
In relation to the question of leave, his Honour stated (at [35]-[37]): 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. 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.
Shortly after, his Honour said (at [43]-[44]): 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". I was satisfied, having regard to ss.37 and 192, that leave ought be granted to the Crown to adduce this evidence from C2 …
The trial judge also stated that his reasons for granting leave with respect to the questions in C2's interview were similar to those earlier expressed in relation to C1: that is, his Honour had regard to the interview taking place against the backdrop of the complainants being told not to talk about khatna by their mother and the increasing willingness of C2 to talk to investigators.
His Honour had also stated (at [40]-[41]): 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. 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).

[136]

Trial judge's ruling

On 10 September 2015, the trial judge made orders in relation to the Crown application under s 42(1) of the Evidence Act. On 16 September 2015, his Honour indicated that he would give reasons for his orders at a later time. On 5 February 2016, the trial judge gave his reasons in Judgment No 21.
His Honour had regard to C2's young age and the material before the Court as to her mild intellectual disability, together with the elapsed time since her participation in the JIRT interview. His Honour was also cognisant of the fact that C2 was living with A1 and A2.
In particular, his Honour found that it was significant that A2 had spoken to C2 and C1 following their interviews with police, telling them (see conversation recorded in Ex AC, and see above at [48]): You told them everything. I told you not to say, anyone. 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.
His Honour also pointed to evidence that A2, A1 and Magennis had advanced and embraced the false Africa checking story when talking to police.
His Honour indicated that he would permit the ruling to be revisited (see T 168-169) in effect if (for present purposes) C2 maintained the account given in her interview in cross-examination (T 112-113). His Honour also said (T 112): …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.
Counsel appearing for Magennis later raised concerns about being able to question C2 in a manner that allowed him to put the appellants' version before her in accordance with the principle in Browne v Dunn. It was accepted by the Crown and by his Honour that any such obligation had been discharged and the matter would not be raised against the appellants.
At [58]-[61] of Judgment No 21 his Honour said: 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. 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. 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. 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."
His Honour considered that a "two-phase approach" was appropriate given the subject matter of the questions and the particular factors existing in the case. His Honour indicated that proceeding in this way allowed counsel for the appellants 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. No applications were made to revisit the s 42 ruling.

[137]

Appellants' submissions

The appellants note that a condition on the use of the procedures set out in Part 6, Chapter 6 of the Criminal Procedure Act is that the vulnerable person is available for cross-examination (s 306U(3) of the Criminal Procedure Act).
The appellants argue that the effect of this ruling was that the only evidence before the jury as to whether any cut or nick was performed on C2's private parts resulted from a leading question in a recorded interview with a six-year-old child with a mild intellectual disability. They say that by this ruling the appellants were deprived of an ability to test the critical issues in dispute in the trial with C2 by the use of leading questions in cross-examination.
The appellants maintain that the fact that C1 and C2 were living with their parents (Judgment No 21 at [52]) had no bearing on whether counsel for Magennis should be prohibited from asking them leading questions in cross-examination; similarly they argue that the fact that A2 had spoken to each of C1 and C2 had no bearing on the question whether leading questions could be asked in cross-examination by counsel for Magennis (contrary to his Honour's reasons at [53]). It is argued that the willingness of Magennis to embrace the Africa checking story was also irrelevant as to whether C2's evidence should be tested by the asking of leading questions (cf his Honour's reasons at [53]). The appellants further argue that the fact that there had been a lengthy period of time (three years) between the date of the interview and the date of the trial militated in favour of the use of leading questions in order to direct the witness' attention to particular issues (cf [52]).
The appellants argue that his Honour's conclusion with respect to leave under s 37(1) of the Evidence Act sits in contrast with his determination in relation to cross-examination for the accused that "the facts concerned would be better ascertained if leading questions were not used" (see his Honour's reasons at [55]).
Insofar as his Honour noted that counsel for Magennis did not seek to revisit the ruling pursuant to s 42 of the Evidence Act after first using non-leading questions in cross-examination (at [60]) and said that this reinforced his view that the facts were better ascertained by using non-leading questions and confirmed that the approach was consistent with a fair opportunity to adduce evidence from each child (see [61]), the appellants maintain that any revisiting of the ruling at the time of cross-examination would have been futile, having regard to the apparent difficulties of C2 in answering the questions.
The appellants complain that his Honour granted leave to the Crown to ask a leading question of C2 about a critical fact in issue (the leading question occurring in the course of the recorded interview and the positive answer constituting the first representation made to the police regarding the matter), but then determined that the facts were better ascertained by using non-leading questions when considering cross-examination by counsel for the accused.
It is submitted that this ruling effectively meant that C2 was not available for cross-examination as required by s 306U(3) of the Criminal Procedure Act and undermined the safeguards put in place for an accused where a complainant's recorded interview with police forms his or her evidence in chief. The appellants argue that it is apparent from the cross-examination that C2 had difficulties comprehending what was occurring and what she was being asked. In particular, they point to the following exchange during cross-examination by counsel for Magennis (T 178.10-178.34): Q: Those ladies that were asking you questions in that DVD, they asked you questions about something that happened in your mum and dad's bedroom, do you remember that? A: No. Q: Do you remember anything happening in your mum and dad's bedroom? A: No. Q: Do you remember anything happening in your mum and dad's bedroom where you were lying on a cushion? A: No. Q: Do you remember anything happening in your mum and dad's bedroom where you were lying on a cushion and the lady touched you? A: No. Q: When you say "no", [C2], do you mean no, you don't remember, or no, you don't know, or no, you don't want to say? A: I don't want to say. Q: Why is it, [C2], that you don't want to say? A: (No verbal reply). Q: Why is that? A: I don't know.
Although it was indicated that no Browne v Dunn point would be taken as to matters not being put to C2 (T 181), the appellants submit that this did not cure the prejudice occasioned to them by not being permitted to cross-examine C2 to seek to elicit evidence that might have supported the appellants' case or undermined the Crown case completely.
The appellants further argue that permitting the Crown to ask leading questions in the evidence in chief of the two complainants and prohibiting counsel for the appellants from asking leading questions of the complainants on the issue in dispute was a fundamental departure from the rules of evidence and the conduct of criminal trials.

[140]

Appellants' submissions

The appellants' submission on this ground is that the above matters, taken alone or in combination, meant that it was not in the "interests of justice" (the test posed by s 306Y(2) of the Criminal Procedure Act) for C2's evidence in chief to be given by way of the recorded interview and that his Honour should have ruled that C2 not be permitted to give evidence by way of the recorded interview and/or that the jury should have been told that the evidence in the video had been withdrawn and they should not give it any consideration in determining their verdict. It is submitted that even if his Honour was correct to find that C2 was competent to give such evidence, the evidence in the recording was nonetheless unreliable, such that it was in the interests of justice that C2 not give her evidence in chief by way of the recording.
The appellants point to the recognition that the use of recorded interviews of children as evidence in chief has the "capacity to distort the adversarial aspects of the criminal justice system which the common law rules of criminal procedure regarded as indispensable to a fair trial" and necessarily deprives the accused of "the opportunity to challenge the 'evidence' as it is given, to object to questions put and, accordingly, to 'shape' the nature of the case made against him" (see R v Knigge (2003) 6 VR 181; [2003] VSCA 94 at [30]). The appellants point to the obligation of trial judges to ensure that the accused is not exposed to the risk of an unfair trial (see Martin v R (2013) 46 VR 537; [2013] VSCA 377 at [35], citing R v NRC [1999] 3 VR 537; [1999] VSCA 184).
It is also submitted that the giving of evidence by way of the recording, including the use of the leading questions and the prohibition on asking leading questions in cross-examination, caused the trial to miscarry. It is submitted that C2's evidence was potentially critical to the question of whether the Crown proved its case beyond reasonable doubt and that the appellants were precluded from adequately testing this evidence by reason of C2's incapacity to understand questions, reluctance to answer questions, and inability to understand (or misunderstanding of) the obligation to tell the truth. It is submitted that there was a real risk that the jury would place too much weight on the evidence of C2 when determining the issue of guilt and that there was a real issue as to whether C2's evidence could be relied upon to conclude that there had been a cut to her genitalia. The appellants emphasise that the only evidence from C2 on this issue was an affirmative response to a leading question asked by an interviewer in the course of her first interaction with police.

[143]

Appellants' submissions

The appellants submit that if this Court is satisfied that C2's evidence was properly before the jury and the procedure permitted by the trial judge was appropriate, we should nonetheless find that his Honour erred in declining to warn the jury as to the unreliability of C2's evidence.
The appellants note that the following matters were relied upon at trial as adversely affecting the reliability of C2's account given in her recorded interview and her evidence at trial (see trial MFI 91 - additional directions sought by the appellant Magennis): that C2 was six years old at the time of her recorded interview; that she was nine years old at the time of giving evidence before the jury; that she had been diagnosed with a mild intellectual disability and had problems with concentration; that the relevant evidence from C2 in her recorded interview was adduced by way of leading questions; that having regard to the evidence of Dr Banks, leading questions were not a particularly useful method of eliciting reliable evidence; that C2 was unable to indicate accurately or at all where her private parts and bottom were on the diagram shown to her in the interview; and that there was no opportunity properly to cross-examine C2 about her assertions in response to leading questions because of her unwillingness or inability to answer questions in cross-examination.
The appellants say that there were two other sources of potential unreliability in C2's evidence (including the recording of the evidence): first, that the answers given by C2 in her recorded interview indicated that she did not understand the distinction between the truth and a lie; and, second, that at the time of giving the answers in her recorded interview she had not taken an oath or made an affirmation.
The appellants maintain that it was incorrect for his Honour to conclude that it would not be appropriate to warn the jury that C2's evidence might be unreliable on the basis that the appellants were precluded from properly cross-examining C2 on her account on the basis of his earlier ruling that C2 could not be cross-examined by use of leading questions on critical subjects. It is submitted that the earlier ruling was not the only reason relied upon in respect of the appellants' inability properly to cross-examine C2. It is said that the course of C2's cross-examination, in particular C2's inability to answer the questions asked and then her unwillingness to do so, was such that the representations she made in her recorded interview could not be tested (whether by leading questions or otherwise) in cross-examination. Further, the inability to use leading questions in cross-examination meant that cross-examination was limited to a few broad questions regarding what happened in her mum and dad's bedroom.
It is submitted that although his Honour referred to his ruling pursuant to s 37 of the Evidence Act granting leave to ask the leading questions in the recorded interview, his Honour did not deal with the relevance this had in respect of the possible unreliability of it; and that this was a critical factor affecting the reliability of C2's account, particularly in circumstances where his Honour had formed the view (in relation to the disallowance of leading questions under s 42 of the Evidence Act) that the facts would be better ascertained if leading questions were not asked in cross-examination (Judgment No 21 at [9], [11], [55], [61]).
It is said that the fact that the jury were aware of C2's age and intellectual disability did not mean that a warning on, at least, these issues was not required; and that this made it all the more important for a warning to be given to the jury from the trial judge.
It is submitted that in these circumstances his Honour erred in declining to give a warning to the jury that C2's evidence might be unreliable on account of these factors.

[145]

Determination as to ground 4

As outlined above (at [726]), ground of appeal 4 has five aspects, identified in sub-paragraphs 4(a)-(e) of the notice of appeal. We have concluded that sub-paragraph (a) is made good, insofar as we find that the trial judge erred in ruling that C2 was competent to give sworn evidence. The balance of the sub-paragraphs have not, in our view, been made out. These reasons address each sub-paragraph in turn.
First, in sub-paragraph (a) of ground 4, the appellants maintain that the trial judge erred in ruling C2 competent to give evidence. In this regard, the appellants point to multiple alleged errors. It is convenient to deal first with the complaint that the trial judge failed to consider C2's competence as at the date of the 29 August 2012 interview (and that, had his Honour considered competence at that stage, it should have been found that C2 was not then competent to give evidence).
As to the point in time at which competence needed to be determined, the Crown (as noted at [791] above), submits that it was not necessary for his Honour separately to determine the issue of competence at the earlier date of the interview. We accept that submission, for the following reasons.
Part 6 of the Criminal Procedure Act provides a scheme for the giving of evidence by vulnerable persons. It is not in dispute that C2 was a vulnerable person as defined by s 306M(1) of the Criminal Procedure Act, and hence that Part 6 of that Act was applicable in this case. Section 306U permits a vulnerable person to give evidence in chief in the form of a recording. It is in the following terms: (1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording. (2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age. Note. Under section 306Y, a court may order that a vulnerable person not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording. (3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) if the evidence is given in any proceeding to which Division 4 applies - in accordance with alternative arrangements made under section 306W. (4) Subsection (3) does not apply in relation to committal proceedings. (5) Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1).
The submission that the trial judge was required to assess C2's competence as at the time of the interview by, in effect, applying s 13 of the Evidence Act in retrospect gives rise to several problems, which are apparent upon consideration of the terms of s 13. That section provides: (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
If this section were to be applied as at the time of the interview of a vulnerable person, the consequence would be that the police, joint investigation response team, or whatever other body was conducting the interview would, presumably, be required to make a determination of competence to give sworn evidence within the meaning of s 13(3) and, if satisfied of such competence, administer an oath or affirmation in accordance with s 21(1) (albeit that at this initial stage the complainant is not a "witness" and it may not transpire that the video recording is ever adduced as evidence in court).
The appellants' submissions suffered from some confusion in that, on the one hand, it was submitted that an inquiry into the competence of the child need not occur at the time the interview is conducted (rather, that the Court can conduct the inquiry as to competence at the time of the interview in retrospect) and, on the other hand, the appellants pointed to the absence of C2 taking an oath or affirmation before the interview as required for the giving of sworn evidence. In our view, the logical corollary of the appellants' submission that competence needs to be determined at the time of the interview is that, prior to the interview, the interviewer would need to make a determination of competence to give sworn or unsworn evidence (otherwise, on the appellants' case, a previously recorded interview would appear to be unable ever to meet the requirements of s 13(3)).
The problems with the appellants' application of s 13 are multiplied when one considers s 13(5), which refers directly to "the court" telling the witness the three matters set out in sub-paragraphs (a)-(c); on the appellants' argument, the interviewer would have an obligation to inform the witness of these matters prior to the interview - otherwise the witness would not be competent to give unsworn evidence.
Similarly, the reference in s 13(8) is to the court informing itself as it thinks fit (and further references to the court's power to give appropriate directions appear in s 31, referenced in the note to s 13(1)). Moreover, when the Court is (as suggested) conducting the competence inquiry in retrospect, its methods for informing itself as to a complainant's competence at a time potentially some years prior to the hearing would, realistically, be limited to what is apparent on the face of the recording.
This is not to say that the provisions of the Evidence Act are not engaged at the point in time when a previously recorded interview is adduced as evidence in chief. But the inquiry as to competence should be understood as taking place at that point in time, and not as an attempt to assess whether, at the time of the interview, the complainant or witness met the requirements for competence to give sworn or unsworn evidence under s 13.
Understood in this way, the fact that s 306U of the Criminal Procedure Act does not exclude the operation of s 13 of the Evidence Act (and see s 306O of the Criminal Procedure Act in this regard) means only that when the previously recorded interview comes to be adduced as evidence in chief, the requirements of s 13 are applied at that point to determine competence. It is the playing of the recording (rather than the initial taking of the recording) which constitutes the giving of evidence (and at the pre-trial hearing counsel for A2 and Vaziri submitted as much, albeit with respect to the issues regarding s 18 of the Evidence Act - see PT 103.24), and competence should be determined at the time of the giving of the evidence. Indeed, s 306U(3) requires this, by mandating that the vulnerable person be made available for cross-examination and re-examination (which necessarily requires that the vulnerable person is competent at the time of the adduction of the recording as their evidence in chief).
This conclusion accords with the tentative view expressed by McClellan CJ at CL in this Court's decision in RA v R (to which the appellants referred). In that case, defence counsel had submitted before the trial judge (and on appeal) that before a previously recorded interview could be admitted into evidence, the trial judge must be satisfied that at the time the complainant gave the interview, she was competent to give evidence. The Crown, on the other hand, submitted that the competence of the complainant to give evidence was only required to be considered at the time she was called to give evidence at the trial. Ultimately, because of the way in which the trial judge had expressed his reasons, it was unnecessary to resolve the question on appeal. However, McClellan CJ at CL observed (at [8]): Resolution of that question will require careful consideration of s 13 of the Evidence Act together with s 9 of the Evidence (Children) Act 1997 [the predecessor to Part 6 of the Criminal Procedure Act]. My tentative view is that the competence of the witness is only required to be determined at the time that person is called to give evidence. If competent the recording of the interview made in accordance with s 9 will be admissible in evidence, subject to s 15 of that Act [see now s 306Y of the Criminal Procedure Act]. That section provides that "if it is satisfied that it is not in the interests of justice for the child's evidence to be given by a recording" the court may make an order to that effect (s 15(2)). If, notwithstanding s 15 the recording of the interview is admitted into evidence the weight to be given to it may vary depending upon the age of the witness and other matters relevant to the truthfulness and reliability of their evidence revealed by the interview and any cross-examination of the witness.
Albeit in a different context (considering the admission of a previous written statement into evidence, where it was alleged that the witness was incompetent at the time of making the written statement), this reasoning also accords with the observations of the Victorian Court of Appeal in Hawker v The Queen [2012] VSCA 219 at [26] per T Forrest AJA (Buchanan and Redlich JJA agreeing), that the application of s 13(1) (of the Evidence Act 2008 (Vic), in the same terms as the NSW legislation) is "confined to a witness' capacity at the time of giving evidence and not at some earlier time". Further, this is consistent with the High Court in The Queen v GW proceeding upon the assumption that the time to determine the complainant's competence was as at the pre-trial hearing (see at [15]) (where her evidence in chief was given by way of an audiovisual recording) - although it does not appear that any issue as to the time for determination of competence was raised in that case.
Against this, we note the observations of Simpson JA (with whom Harrison and Davies JJ agreed) in Tikomaimaleya v R (2017) 95 NSWLR 315; [2017] NSWCCA 214 at [56]: It was never part of the appellant's case, as advanced at trial, that, at the time of the interview with Ms Rusk [a previously recorded JIRT interview with the complainant], the complainant lacked either of the required capacities [in s 13(1) of the Evidence Act]. Had the question been raised, the trial judge would have been obliged to make a finding about the complainant's capacity at the time of the interview. That could most readily have been done by observing the recording of the interview itself, but it could also, in accordance with s 13(8), have been done by the trial judge obtaining information from other sources. Since no issue was raised about the complainant's capacity or competence at the time of the interview, the trial judge was not asked to make, and did not make, any determination as to her competence at that time.
However, as the question of competence had not been raised at trial, her Honour's observations about what the trial judge would have been obliged to do in that event were obiter dicta and it is unlikely that the point was fully argued before the Court; the decision on this ground of appeal turned on, as is evident from [56], the fact that competence had not been raised at trial.
As indicated, in our opinion the better view is that competence is to be determined at the time of the adduction of the evidence at trial, and not in retrospect.
The Crown also submitted that the appellants' submission at trial had been that C2 was not competent to give evidence at the time of the trial and that the trial judge had therefore appropriately focussed on assessing C2's competence to give evidence at that time (rather than at the time of the interview). The transcript for the relevant days of the pre-trial hearing (17-18 June 2015, PT 1-113) bears out this submission (see, in particular, the submissions of Mr Gow, counsel for C1 and C2, at PT 70-72). Therefore, even if we are wrong and in some circumstances competence does need to be determined as at the date of a previously recorded interview (as Simpson JA suggested in Tikomaimaleya v R), this is not such a case because, as her Honour reasoned in Tikomaimaleya v R, the appellants should not now be permitted to raise a challenge to competence not raised at trial.
We turn therefore to a consideration of C2's competence to give evidence as at the date of the trial. The provisions of Part 2.1, Division 1 of the Evidence Act mandate a certain structure for this inquiry.
First, s 12(a) provides that unless otherwise provided by the Act, every person is competent to give evidence; and s 13(6) establishes a presumption that a person is not incompetent because of s 13, unless the contrary is proved.
Secondly, s 13(1) provides a threshold requirement of general competence to give evidence about a fact (whether sworn or unsworn), based on capacity to understand a question about the fact and to give an intelligible answer to such a question. Section 13(2) clarifies the operation of s 13(1), providing that a person who, because of s 13(1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
The legislative background to s 13(1)-(2) (of the Evidence Act 2011 (ACT), which provision is in the same terms as the NSW legislation) was set out by the High Court in The Queen v GW at [11]-[13], as follows: A decade after the enactment of the Commonwealth Act, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission (collectively, "the Commissions") conducted a joint review of the operation of the Uniform Evidence legislation. That review addressed the subtlety of the distinction between the test of competence to give sworn evidence - capacity to understand the obligation to give truthful evidence - and the test of competence to give unsworn evidence - satisfaction that a person understands the difference between a truth and a lie. In their joint report the Commissions recommended the introduction of a test of general competence to give evidence based upon basic comprehension and communication skills. … Amendments to the Commonwealth Act introduced in 2008 (the 2008 amendments) gave effect to the Commissions' recommendations in these respects. Section 13 was repealed and re-enacted in its present form. … It will be observed that competence to give evidence about a fact is confined to the person's capacity to understand a question about the fact and to give an intelligible answer to the question. It is only competence to give sworn evidence that requires the person to have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
As the Crown noted, it was not submitted for the appellants that C2 lacked the capacity to give an answer that can be understood to a question about a particular fact (s 13(1)(b)); rather, the submissions focussed upon C2's alleged incapacity to understand a question about a particular fact (s 13(1)(a)).
The terms of s 13(1)(a) require an ability to comprehend questions put to the witness, and the requirement is one of "basic comprehension skills": Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), [4.49] ("ALRC 102"); Odgers, Uniform Evidence Law (13th ed, 2018, Thomson Reuters), [13.60]. As to the focus on evidence "about a fact", at [4.72] of ALRC 102, it is noted: This is particularly important for children who may have differing language skills, abilities to make inferences, conclusions or estimates or capacities to understand concepts such as time and special perspective. This approach to competency allows a young child to respond under oath to simple questions but not to questions beyond the child's capacity that cannot be reframed in simple terms.
To similar effect, the Explanatory Memorandum of the amending Act which introduced the new s 13(1) into the Evidence Act 1995 (Cth) (the Evidence Amendment Act 2008 (Cth)) states (at [13]): New subsection 13(2) provides that even if the general test of competence is not satisfied in relation to one fact, the witness may be competent to give evidence about other facts. For example, a young child may be able to reply to simple factual questions but not to questions which require inferences to be drawn.
In large part the resolution of this aspect of ground 4 depends upon identification of the particular fact or facts about which C2 is said to be incompetent to give evidence. The expert evidence of both Dr Banks and Dr Pulman (recourse to which is permitted by s 13(8)) indicates that, in general terms, C2 had the capacity to understand (simple) questions put to her.
His Honour properly took into account the relatively confined topic in relation to which C2 would be called to give evidence (given the issues in dispute at trial) and was satisfied that she had capacity to understand questions about that topic, provided that they were not complex or protracted (Judgment No 4 at [125]-[126]). The appellants say that C2 could not have understood any question about a fact relevant to the issues in dispute, particularly because an ability to give evidence of specific details about what happened was critical. However there is a distinction between an inability to give specific details due to lack of knowledge, absence of memory, or a wish not to provide those details, and an incapacity to understand a question. The expert evidence was to the effect that C2 had capacity to understand simple questions and (although this was not challenged) provide intelligible responses; this is, in our view, supported by C2's responses during the recorded interview and during the trial judge's examination of C2 at the competence hearing. For example, C2 was able to give a basic description of where the relevant events occurred and how she felt when they occurred; the fact that some of her responses were initially "I don't know" but were then clarified or modified is not, in our view, sufficient to indicate that C2 did not have capacity to understand the questions that were put to her.
As to C2's evidence in cross-examination, the fact that she was hesitant and at times unwilling to give evidence does not demonstrate incapacity to understand a question about a particular fact. For example, C2's evidence at T 178.10-178.34 was that her "no" responses indicated that she did not want to answer the question (and this is different from incapacity to understand the question). There is a separate issue as to whether C2 was "unavailable" for cross-examination, but this does not go to competence to give evidence within the meaning of s 13(1) of the Evidence Act
Therefore we have concluded that the trial judge did not err in determining that C2 was competent to give evidence as required by s 13(1) of the Evidence Act. However, there then arises the appellants' submission in the alternative (see from [771] above) that, if the Court is satisfied that his Honour was correct in determining that C2 was competent to give evidence, his Honour nevertheless erred in finding C2 competent to give sworn evidence. This submission should be accepted.
The requirement pursuant to s 13(3) of the Evidence Act is that C2 had the capacity to understand that, in giving evidence, she was under an obligation to give truthful evidence. In The Queen v GW, the High Court held, at [26]: … "obligation" in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound - in this case, to give truthful evidence. A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence. Contrary to the respondent's submission, R's affirmative answer to the question "[a]nd do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?" is not to be understood as necessarily conveying that R had the capacity to understand that, in giving evidence, she was under such an obligation.
Although we recognise that the determination required by s 13(3) is, as the Crown submitted, a matter of judgment and inevitably includes assessment and impression (see Pease v R [2009] NSWCCA 136 at [11] per Grove J, McClellan CJ at CL and Buddin J agreeing - this Court there referring to the former iteration of s 13(1), which then stood in very similar terms to the current s 13(3)), nonetheless we are satisfied that the presumption of competence established by s 13(6) (which presumption also applies to competence to give sworn evidence - see The Queen v GW at [14]) is here displaced.
During the trial judge's examination of C2 on the competence hearing, C2 said that she did not know what a lie was, did not know why not telling the truth was wrong, did not know why it was important to tell the truth nor why it was important to tell the truth in court (see [756]-[758] above). The expert evidence does not provide any reason to doubt the conclusions we have drawn from the transcript: it goes no further in this regard than Dr Pulman noting that whilst C2 said she had not heard of the word "truth", it was evident that she was able to distinguish between a truth and a lie. Ability to distinguish between a truth and a lie does not demonstrate a capacity to understand the obligation to give truthful evidence in a court proceeding.
Our conclusion is that his Honour erred in finding that C2 was competent to give sworn evidence. It follows from our conclusion with respect to s 13(1) that C2 would have been competent to give unsworn evidence if informed of the matters set out in s 13(5)(a)-(c). Given our determination with respect to the other grounds of appeal, it is not necessary finally to determine the consequences of the conclusion that ground of appeal 4(a) only succeeds in respect of C2's competence to give sworn evidence.
Sub-paragraphs (b) and (c) of ground of appeal 4 may be read as in the alternative to sub-paragraph (a), in the sense that they assume that C2 is found to have been competent to give evidence - these grounds relate to questions put in "evidence in chief" and disallowance of leading questions in cross-examination.
As to ground of appeal 4(b), s 37(1) of the Evidence Act permits the Court to grant leave to ask leading questions in examination-in-chief. The trial judge's ruling concerning the use of leading questions was an exercise of his Honour's general discretion to control the form of questions pursuant to s 26 of the Evidence Act: see Heydon, Cross on Evidence (10th Australian ed, 2015) at [17-155]. His Honour appropriately considered the factors in s 192 of the Evidence Act and gave considered reasons for the grant of leave.
The appellants point to error, first, in his Honour taking into account the fact that the interview was part of the investigatory process. As to this, we are of the view that it was not inappropriate to take this into account. In SLJ v R (2013) 39 VR 514; [2013] VSCA 193, the Victorian Court of Appeal took this contextual factor into account, Redlich JA observing at [33] (Osborn and Whelan JJA agreeing) that: The objections that may be made to leading questions in evidence in chief should be applied with some caution in the context of a VATE [video and audio taped evidence] investigation, which occurs in a markedly different environment. As in the present case the investigator was seeking to elicit and amplify a potential young victim's account.
There are observations to similar effect in Martin v R (at [37] per Redlich JA, Maxwell P and Neave JA agreeing); and Sutton v R (2015) 47 VR 496; [2015] VSCA 251 at [84] per Maxwell P and Redlich JA. A similar approach has been taken with respect to the analogous provisions in the ACT: see, for example, Re JC [2010] ACTSC 134 at [27]; R v Al-Harazi (No 6) [2017] ACTSC 63 at [19].
The appellants' submission that until the leading question, Q197 ("We heard that you had had a cut on your private parts. Is that true?") was asked, there had been no representation made by C2 that this had happened to her, has some force. In particular, the Victorian authorities cited above have for the most part concerned leading questions asked in video recorded interviews where there has already been a voluntary admission or representation by the interviewee as to the events in dispute.
Nonetheless, we are not persuaded that the trial judge's exercise of discretion in managing the form of questioning miscarried. His Honour took relevant factors into account, including the fact that C2 volunteered later in interview (in response to open-ended questions) that she felt "hurting … in my bottom". The Crown's submissions also point, correctly in our view, to the nature of the topic under consideration (and the problems with any attempt to re-elicit the same evidence from C2 in court), given that C2 was being asked to give evidence of particularly intimate acts done to her, and that the proceedings were against her mother, in circumstances where there was evidence of significant pressure being brought to bear on C1 and C2 not to disclose what had happened or to change their accounts. We would therefore dismiss ground of appeal 4(b).
As to ground of appeal 4(c), we are not persuaded that the trial judge's exercise of his discretion to control the questioning of witnesses, including with respect to cross-examination, miscarried. Section 42 of the Evidence Act provides: (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 the 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.
Like the power under s 37 of the Evidence Act considered above, the power under s 42 to disallow leading questions in cross-examination is a discretionary one and is an incident of the trial judge's broad power to control the questioning of witnesses pursuant to s 26: see, eg, R v Qaumi (No 39) [2016] NSWSC 797 at [20]; R v Xie (No 13) [2015] NSWSC 2125 at [4], [12]. As such, it falls to be exercised subject to the criteria in s 192(2) of the Evidence Act (see ASIC v Rich [2006] NSWSC 243; (2006) 201 FLR 207 at [19]; R v Xie (No 13) at [6]).
In R v Xie (No 13) at [18]-[21], Fullerton J undertook a careful and detailed analysis of the operation of s 42, as follows: Strictly construed, the power in s 42(1) to direct that a leading question not be asked by the cross-examiner, and the discretionary considerations in s 42(2) that inform its exercise, is to be exercised on a question by question basis, as distinct from questions of a leading kind being disallowed about a subject matter or a series of subject matters. However, when applying the mandatory language of s 42(3), the question is whether I am satisfied that the facts the subject of the proposed areas of cross-examination would be better ascertained (which I take to mean adduced) by non-leading questions. In some circumstances (and this case is clearly one of them) it is open to a party, in reliance upon s 192A, to invite the Court to give a direction of the kind contemplated in s 42(1) in advance of cross-examination commencing or, if cross-examination has commenced, in advance of questioning upon areas or issues that are said by the party seeking the order to either invoke the considerations in ss 42(2)(a)-(c) [and s 42(2)(d)] justifying a direction under s 42(1) or mandating that questions be disallowed under s 42(3). Where an advance ruling under s 192A of the Evidence Act is sought, it seems to me that it is neither practical nor desirable that the strict terms in which ss 42(1) and 42(2) are expressed (that is, by a reference to disallowing a question) should limit the Court's determination of the way in which the witness is questioned in cross-examination, particularly where on the same application the Court will invariably be asked to disallow leading questions under s 42(3). For avoidance of doubt, I consider that the general power in s 26(a) to regulate the way in which witnesses are questioned allows for that approach. That is particularly the case in circumstances where (as here) there are a number of contentious subject areas that are likely to be the subject of questioning by the cross-examiner with a view to eliciting evidence favourable to the accused … That said, it also seems to me that an advance ruling under either s 42(2) [sic - this should probably be read, in context, as reference to s 42(1)] or s 42(3), and the terms in which it is expressed, taking into account the criteria in s 192(2), will, as a practical matter, only be possible where the areas that are expected to be the subject of cross-examination can be identified with reasonable particularity.
The trial judge's ruling in the present case could be understood as an application of s 42(3), particularly given the terms of his Honour's ruling ("I am satisfied that the facts concerned would be better ascertained if leading questions were not used with respect to the subject matters [as specified]" - T 112) and the fact that the rulings, made prior to commencement of cross-examination of each of C1 and C2, related to subject matters rather than individual questions.
Where there is some scope for confusion is that the Crown's application was made under s 42(1) and his Honour, in Judgment No 21, referred to the factors set out in s 42(2). In addition, there was (regrettably) no reference, either by counsel at trial or his Honour, to either of ss 192 or 192A. In particular, it would have been relevant to consider s 192(2)(b), (c) and (d). However, we are not persuaded that the failure to apply the provisions of s 42 meticulously or to refer expressly to ss 192 and 192A led his Honour into error. It is not now material to determine which sub-section of s 42 was in fact applied and the finer aspects of the statutory framework in this regard were not a focus of the submissions on appeal. Rather, the nub of the appellants' complaint on this ground is that it was unfair to deprive them of the opportunity to test the critical issues in dispute and inconsistent to grant leave to the Crown to ask leading questions and then disallow leading questions from counsel for the accused (pursuant to ss 37 and 42 of the Evidence Act, respectively).
However, it is clear from both the trial judge's remarks at the time of making the orders (T 112-113, 168-169) and from his Honour's subsequent reasons for those orders in Judgment No 21, that there was not a complete disallowance of leading questions; instead, his Honour adopted what he referred to as a "two-phase approach". His Honour gave counsel the opportunity, in relation to both C1 and C2, to revisit the issue in light of answers given by the witnesses in response to non-leading questions in cross-examination. His Honour also noted that his ruling did not preclude counsel from drawing the witnesses' attention to particular questions or answers in their video recorded interviews, indicating that he would view such questions not as leading questions but as introductory questions "which would then lead to the next question which, for the first part at least, should not be a leading question" (T 112). Insofar as the appellants maintain that the lengthy period of time between interview and trial militated in favour of use of leading questions to direct the witnesses' attention to particular issues, it is clear that the trial judge was prepared to permit counsel to draw the witnesses' attention to their questions or answers in their interviews.
His Honour's approach was cautious and balanced, appropriate to the nature of the proceedings and the age of the witnesses, and did not deprive the appellants of the opportunity to test the issues in dispute in a meaningful manner. It was not inconsistent with the approach adopted to examination-in-chief, which (as noted above) had occurred in a different context - and his Honour correctly took that factor into account. While the importance to the appellants of the evidence sought to be elicited, and the prejudice or unfairness which may result in disallowing leading questions, are certainly relevant factors in exercising the discretion under s 42 of the Evidence Act, we are not persuaded that his Honour's two-phase approach was prejudicial or unfair (compare Bell v Regina [2017] NSWCCA 207 at [178]; R v Qaumi (No 39) at [21]).
The appellants submitted that any revisiting of the ruling (with a view to opening a second phase of leading questions) at the time of cross-examination would have been futile, having regard to the apparent difficulties of C2 in answering the non-leading questions put to her initially. However, it does not follow from a witness' "difficulty" in answering non-leading questions that his Honour erred in adopting the two-phase approach, nor that a revisiting of the ruling, which may have opened up the possibility of leading questions, would have been futile (and indeed, such difficulty may have made it all the more apparent that leading questions might be necessary, although that is no more than speculation).
The above is probably sufficient to dispose of ground 4(c), but we will briefly address the appellants' other specific complaints. The trial judge's ruling did not mean that C2 was effectively unavailable for cross-examination contrary to the requirement in s 306U(3) of the Criminal Procedure Act. As we have explained, it did not rule out subsequent permission to ask leading questions upon application by Counsel, and in any event, there is a distinction between "cross-examination" and "leading questions". So much is clear from the statutory definitions of both concepts (appearing in the Dictionary to the Evidence Act): leading question means a question asked of a witness that: directly or indirectly suggests a particular answer to the question, or 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. … [Dictionary Part 2, clause 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.
As to the complaints relating to matters taken into account by the trial judge which were said to be irrelevant to the s 42 ruling (see at [827] above), it is clear that the factors in s 42(2) are, although mandatory, not exclusive. The submission here appears to be that C1 and C2's relationship with A2, conversations with A2, and vulnerability due to their age and living situation, could only have been relevant to cross-examination by counsel for A2, and not to cross-examination by counsel for Magennis. But it is too simplistic to view cross-examination of C1 and C2 by counsel for Magennis as divorced from the issues in dispute in relation to A2, given that the subjects on which leading questions were disallowed were subjects which clearly would have related to both A2 and Magennis.
Therefore, ground of appeal 4(c) is not made good.
Under sub-paragraph (d) of ground 4, the appellants argue that his Honour should have excluded or withdrawn the video evidence by applying s 306Y(2) of the Criminal Procedure Act and finding that it was not in the "interests of justice" for C2's evidence to be given by recorded interview. (We note that no application to this effect was made at trial.) Moreover, the appellants say that the combination of the giving of evidence by recording, the use of leading questions in the video interview, and the prohibition on asking leading questions in cross-examination, caused the trial to miscarry.
It follows from our reasons with respect to sub-paragraphs (b) and (c) of ground 4 above that we do not accept that the course of C2's evidence at trial, viewed as a whole including the method of adduction of her evidence-in-chief, the questioning adopted therein, and the two-phase approach for questioning during cross-examination, was contrary to the interests of justice or caused the trial to miscarry. In relation to the overall assessment of the interests of justice called for by s 306Y(2), we are cognisant of the duty of the trial judge to balance the traditional - and crucial - function of cross-examination in facilitating a fair trial for the accused by permitting full and fair interrogation of the evidence (see, for example, Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300 and Lee v R (1998) 195 CLR 594; [1998] HCA 60 especially at [32]), with the need to ensure that the cross-examination is fair to a vulnerable, young witness (see particularly the comprehensive consideration of these issues by Maxwell P and Redlich JA in Ward v The Queen [2017] VSCA 37 at [96]-[135]). In our view, this is a case where the trial judge discharged that difficult duty with care, and although we have found that his Honour erred in deciding that C2 was competent to give sworn evidence at the time of the trial, it does not follow that the admission of C2's evidence was contrary to s 306Y(2) or gave rise to a miscarriage of justice.
Finally, as to ground 4(e), we do not consider that the trial judge erred in declining to give an unreliability warning to the jury as permitted by s 165A(2) of the Evidence Act. This is a case where it is relevant to note the distinction to be drawn between the need for a warning about matters of which the jury could have little understanding or appreciation, but where the Court would have such an understanding; and matters which the jury was well able to assess without particular assistance (see AL v Regina [2017] NSWCCA 34 at [81]). In Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 at [178], Crennan J said: The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences.
In our view, the jury were well aware of C2's age and mild intellectual disability and were able, in the light of their own experiences, to evaluate the expert evidence and C2's evidence in chief and in cross-examination. His Honour was correct to find that there was no foundation for a warning pursuant to s 165A(2).
Despite the fact that we are not satisfied that sub-grounds 4(b), (c), (d), and (e) have been made out, it should be noted that we have determined these grounds in the context of the evidence that was before the trial judge. It is to be accepted that factors such as the fresh evidence, the appellants' success on other grounds and our conclusion that C2 was not competent to give sworn evidence would all be relevant considerations that would have warranted a reconsideration of these issues had any retrial on the alternate counts been ordered.

[146]

Ground 5 - consciousness of guilt directions (A2 and Magennis)

The Crown sought directions to the jury from his Honour concerning the post-offence conduct of A2 and Magennis. The relevant post-offence conduct was the advancement of lies by A2 and Magennis over an extended period of time. It was the Crown case that A2 had developed the Africa checking story (which at trial the appellants accepted was a lie) with others in the Dawoodi Bohra community to explain away the truth which had been exposed; namely that khatna had been performed upon C1 and C2 by Magennis in the presence of A2. The evidence regarding this conduct came from the lawfully obtained telephone intercept material and was summarised in trial MFIs 94, 95, 96, 97, 98, 99 and 117.
The trial judge held that "[a] clear foundation was laid for the giving of an orthodox consciousness of guilt/post-offence conduct direction to the jury" in relation to A2 and Magennis (Judgment No 20 at [58]). The direction was not opposed by Counsel for the appellants (T 2030.6-2030.10). The Crown points to the trial judge's observation that (at T 2029.24-2029.28): I've already indicated that I would give a consciousness of guilt direction by reference to lies. Of course, it has to be specific consciousness of guilt of the offence charged. Here, the alternatives both involve the causing of a cut or nick to the genital area with the primary charges being more specific, the clitoris.
The jury were given directions (at SU 51-56) as to consciousness of guilt reasoning and post-offence conduct in relation to A2 and Magennis only. At SU 53-54, the jury were told: First, you must find that what the Accused person said that amounts to a lie relates to an issue that is relevant to the offence that the Crown alleges that the Accused person committed. It must relate to some significant circumstance or event connected with that alleged offence. The Crown says that it is relevant because it indicates an awareness, on behalf of the particular Accused person, that the procedure carried out on each of [C1 and C2] involved "khatna" of the nicking or cutting variety to the clitoris, or on the alternative count, at least to the genital area. Now the second thing that you must find, before you could use this material as evidence of consciousness of guilt, is that the reason that the relevant Accused person told this lie is because she feared that telling the truth might reveal her guilt in respect of the charge which she now faces. In other words, she feared that the telling of the truth would implicate her in the commission of the offence with which she is now on trial. … people do not always act rationally and … telling a lie may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence. If you think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence or offences to which the relevant Accused person is now on trial, then it cannot be used as evidence of the Accused person's guilt. The defence case in relation to this issue is that the Accused persons panicked not because of the fear of being implicated in an offence involving "khatna" of the cutting or nicking type, but a fear that she may be implicated in some sexual offence or indecent assault or other offence of common assault concerning each girl.
His Honour gave an example of the consciousness of guilt by reference to the telephone conversation at Ex AA at Tab 4, namely the statements by Magennis that "Yea, but we can just say, 'We had a check on her and that was it"' and "We didn't do anything… But there is no scar or anything there" (SU 55).
His Honour directed the jury that "[y]ou must find that the reason that the particular Accused person told this lie was because she feared that the truth would implicate her in relation to the commission of the offence or offences for which she is now on trial" (SU 55).

[147]

Appellants' submissions

The appellants argue that the trial judge's directions on this issue suggested that the lie could be used as consciousness of guilt evidence on either the primary count or the alternative count but not with respect to other potential offences (for example, indecent assault). It is submitted that the directions were erroneous as they failed to distinguish between consciousness of guilt for the primary count and the alternative count.
The appellants argue that the jury should have been told that they could only use the relevant conduct (embracing the Africa checking story) if satisfied that it evinced a consciousness of guilt for the offence they were considering and not the lesser offence (or vice versa). In particular, the appellants say that the jury should have been told that they could not use the post-offence conduct as evidence of a consciousness of guilt on count 1 if they were only satisfied that it was evidence of a consciousness of guilt in respect of count 2.
It is submitted that the directions to the jury should have set out the way in which a consciousness of guilt for the offence charged could be inferred from the conduct (i.e., willingness to embrace the Africa checking story) by reference to the issue in dispute. The appellants accept that the inference that arises from the appellants' willingness to embrace the Africa checking story is that the procedure that was performed was something that the appellants wanted to conceal from the authorities, but they submit that the conduct did not rise so far as establishing a consciousness of guilt that there had been any injury to the clitoris; and they say that the jury should have been warned against concluding as such. In Magennis' case it is submitted that such directions were required particularly because Magennis' case was that a ritualistic procedure was performed.
It is further submitted that the jury should have also been told that one particular issue, in respect of concluding that Magennis embraced the Africa checking story because of a consciousness of guilt for the offence charged, was that the Africa checking story originated from A1 and A2 but that there was no evidence that A2 (though present at the procedures) saw what occurred during either procedure and A1 was not present. It is submitted that A1 and A2 might have mistakenly assumed that the procedure was more significant than it actually was and, in that sense, the development of the Africa checking story may have arisen out of a mistaken assumption by A1 and A2 rather than a consciousness of guilt for the offence charged (either by A2 or by Magennis).
The direction regarding the other reasons as to why a person may engage in the post-offence conduct is also said to be inadequate. First, the appellants say that the direction should have referred to the possibility that the conduct was engaged in because of an acknowledgement of some general or moral wrongdoing. Second, they maintain that it was not sufficient to raise the prospect that the conduct could evidence a consciousness of guilt for the offence of indecent assault or common assault (i.e. some lesser offence) in the context of what the defence submission was; rather, these offences should have been explicitly referred to in the main direction. Third, the appellants emphasise that the jury should have been reminded of Magennis' evidence as to why she embraced this story (namely that she assumed she had done something wrong because officers from the Department of Community Services were involved and she thought maybe the ceremony she had performed was against the law because the genital area was exposed - see T 1546). Fourth, it is said that if a lie is told out of "panic" that is sufficient to eliminate its probity as consciousness of guilt - there is no need to establish that the lie was told "out of panic to escape an unjust accusation" - and that the trial judge's direction suggested that this latter aspect was necessary.
Reliance is placed on the statement by the Victorian Court of Appeal in R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 ("Ciantar"), in which the Court said (at [78]): Trials which concern a one count presentment with lesser included offences, or a multiple count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to "other offences". Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such "other offence" does not provide a possible reasonable explanation for the lies.
As to the examples that his Honour gave (see [907] above), it is submitted that including the first statement as an example of the post-offence conduct was erroneous and particularly prejudicial; and that the last statement is exculpatory (that they "didn't do anything"). The appellants note that it was not alleged that this last statement was a lie; rather, the lie relied upon by the Crown was a willingness to embrace the Africa checking story (see MFI 117). The appellants say that general denials were not relied upon as lies evidencing a consciousness of guilt. Further, they point out that the statement that there was "no scar or anything there" (see [907] above) was true and exculpatory.
It is submitted that the directions, and in particular the use of the above examples, were likely to create in the mind of the jury that these exculpatory statements could be used to inculpate Magennis.
The appellants accept that no objection was taken to the consciousness of guilt directions and no redirection was sought; and therefore that leave to rely on this ground of appeal is required under r 4 of the Criminal Appeal Rules (NSW). In that regard, the appellants submit that the Africa checking story formed an important part of the Crown case and there was a real danger the jury would give the evidence greater weight than it deserved in the absence of correct directions.

[148]

Crown submissions

The Crown notes that the proposition in Ciantar was put in qualified terms and refers to the decisions of the High Court in The Queen v Baden-Clay (see at [73]-[77]) and of this Court in Mulvihill v R [2016] NSWCCA 259 (at [226]-[227]) in that regard, to the effect that there is no rule that post-offence conduct never serves to distinguish intent as between murder and manslaughter and the issue is determined in light of the specific facts of the case, there being no rigid prescriptive rules as to when and in what precise terms an "Edwards-type" direction (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) is to be given.
The Crown emphasises that no direction was requested at trial to the effect that an alternative inference was available from evidence of the appellants' willingness to embrace the Africa checking story (namely to conceal from the authorities a ritualistic procedure with no injury occasioned), but in any event says that his Honour did direct the jury that telling a lie may sometimes be explained in other ways and gave other possible reasons for the telling of the lie. The Crown argues that reference to a lie being told "to escape an unjust accusation" is not objectionable (even though it followed reference to "panic").
It is submitted that the standard direction that was given by his Honour was more than adequate to address the appellants' case that the lie was told in the context of fear of exposure of a ritualistic procedure having occurred with no injury being occasioned; and that his Honour made clear to the jury that before they could use the story as a lie which established a consciousness of guilt of either offence, they would need to consider other possible reasons why the particular appellant could have told this lie.
As to the submission that his Honour should have directed the jury that, before they concluded that A2 and Magennis embraced the Africa checking story out of a consciousness of guilt, they should consider whether this may have occurred as a result of a mistaken assumption by A1 and A2 that the procedure was more significant than it actually was, the Crown submits that this should be rejected. The Crown notes that A2 is the mother of both C1 and C2; that the procedure conducted on both complainants was a significant event in their lives; that it was conducted for cultural reasons and because of the direction in Sharia law; and that there was no issue that A2 was present during the procedures on her daughters and was aware of what was happening to each child at the relevant time. It is submitted that A2 must have known what occurred in the room on each occasion and that there was no need for his Honour to give an extended direction to cover a hypothetical situation not supported by the evidence.
The Crown argues that leave to rely on this ground of appeal should be refused, arguing that the fact that a redirection was not sought by experienced trial counsel, in the atmosphere of the trial, suggests that there has been no miscarriage of justice (referring to Hill v R [2017] NSWCCA 136 at [18]; [21]).

[149]

Determination as to ground 5

For the reasons which follow, we are not persuaded that error has been established arising out of the trial judge's directions concerning consciousness of guilt, and we refuse to grant leave pursuant to r 4 of the Criminal Appeal Rules to rely on this ground of appeal. As with many of the grounds relied upon by the appellants in this appeal, a number of discrete complaints are made that need to be addressed in turn.
First, it is submitted that the trial judge erred because he failed to distinguish between consciousness of guilt for the primary counts and the alternative counts. The difficulty with this complaint is that, as the trial judge observed (at T 2029.24-28), the primary counts and the alternative counts all involved an allegation of a cut or nick being made to the genital area, with the primary charge being specifically concerned with the clitoris. In those circumstances, there was insufficient difference between the elements of the offences to warrant such a direction.
Although reliance was placed on the decision in Ciantar at [78], the proposition stated in that paragraph was qualified. The Court there observed that in cases where the same evidence discloses the principal offence as well as other offences, the jury "may" have to be instructed that before they can rely on the lies as consciousness of guilt they need be satisfied that the lies cannot be explained by such other offences. Each case must turn on its own facts. In a similar vein, the High Court observed in The Queen v Baden-Clay (at [74]) that there is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter; see also, Mulvihill v R at [226]-[227].
Second, as for the complaint that the trial judge's identification of possible "other offences" in the summing up came too late, such complaint fails to have regard to the direction as a whole. The relevant portion of the direction is extracted above at [906]. His Honour provided examples of alternative explanations for the lie. He explained to the jury that, "[f]or example, a lie may be told out of panic to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence". The jury was then, correctly, instructed that if they thought that the lie may have been told for "some reason other than to avoid being implicated in the commission of the offence or offences" then it could not be used against the relevant accused. The jury was then immediately reminded that Magennis' case was that she panicked "not because of the fear of being implicated in an offence involving "khatna" of the cutting or nicking type, but a fear that she may be implicated in some sexual offence or indecent assault or other offence of common assault concerning each girl". The fact that this last sentence was not included in the "main direction" does not disclose error.
Third, as for the complaint that the trial judge ought to have directed the jury that the lies may have been told because of an acknowledgement of "some general or moral wrongdoing", we are not satisfied that this was required in the circumstances of this case. In circumstances where the defence case at trial was that only symbolic khatna had been performed, it is difficult to see how a reference to this additional possible explanation (awareness of some general moral wrongdoing) could have added anything of substance to the direction already given.
Fourth, we are satisfied that no error is disclosed by virtue of the fact that the jury was not reminded as part of this direction of Magennis' explanation for embracing the Africa checking story, being that she thought the ceremony may have been illegal because the genital area was exposed. The absence of reference to this evidence needs to be considered in the context where the jury had already been reminded of Magennis' explanation that she "panicked out of fear that she may be implicated in some sexual offence or indecent assault or other offence of common assault concerning each girl".
Fifth, complaint was made as to that part of the direction where the trial judge stated that "…a lie may be told out of panic to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence". It was submitted on behalf of the appellants that a lie told out of "panic" alone is a sufficient explanation, without any need to establish that the lie was told "out of panic to escape an unjust accusation". The difficulty with this complaint is that it seems highly likely that a comma is missing from the transcript of the summing up after the word "panic", such that the relevant sentence should read "out of panic, to escape an unjust accusation…". There are two reasons to suggest that this is how his Honour gave that direction. First, it is consistent with the grammatical structure of the rest of the sentence. Secondly, the direction given by his Honour comes directly from the standard direction contained in the Criminal Trial Courts Bench Book (2017) at [2-965], which is in these terms: "For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence." In these circumstances, this complaint has not been made good.
Sixth, we are not satisfied that the trial judge erred in not reminding the jury in this direction that it was A1 and A2 who fabricated the Africa checking story in circumstances where A1 was not present at the procedure and A2, although present, may not have observed the actual procedure. We do not accept the appellants' submission that the jury ought to have been directed that the lie may have arisen out of a mistaken assumption. A2 did not give evidence at the trial and it would have been speculation to assert that she did not observe the procedure.
Finally, we are not satisfied that the examples of some of the lies provided by the trial judge in this direction would have led the jury to believe that exculpatory statements could be used to inculpate Magennis. Although it is to be accepted that some of the covertly recorded answers in Ex AA may be considered exculpatory when taken in isolation, the jury were invited to have regard to all of the evidence and the recorded conversations, which clearly established that Magennis adopted the Africa checking story. In any event, there was no dispute at trial that the appellants had initially created a false story - the dispute was over the reasons for doing so.
Overall, we are satisfied that the direction given by his Honour was adequate in the circumstances of the issues raised. The jury could have been left in no doubt that before they could use the Africa checking story as a lie establishing a consciousness of guilt of either offence, they would need to exclude other possible explanations for the lie.
No complaint was made to the trial judge by counsel for the appellants in relation to any of these matters. As such, leave to rely on this ground of appeal is required under r 4 of the Criminal Appeal Rules. The effect of that rule was summarised by McHugh J in Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [72] as follows: There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice.
As Bathurst CJ observed in ARS v R [2011] NSWCCA 266 at [148] (James and Johnson JJ agreeing), subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].
These observations, recently reiterated by this Court in Flood-Smith v R [2018] NSWCCA 103 (at [116]), are apt in the circumstances. It follows from our reasons above that we do not consider the requirements for a grant of leave under r 4 are met.

[151]

How the issue was raised at trial

The coincidence evidence was not led against Vaziri (only against A2 and Magennis). The Crown submitted that there was a "particular and peculiar pattern of behaviour such that it is highly improbable that each girl could be giving her account by sheer chance or coincidence" (R v A2; R v KM; R v Vaziri (No. 18) [2015] NSWSC 1625 at [25] ("Judgment No 18")).
As to Magennis, the Crown sought to rely on the following similarities between the allegations of each complainant, in order to prove the truth of each complainant's account (trial MFI 110) - that she: conducted a procedure which caused the genitals of the complainants to be cut; conducted such a procedure which caused pain to the genitals of C1 and C2; conducted such a procedure against pre-pubescent female children to whom she was no relation; conducted such a procedure whilst the complainants were lying down; conducted such a procedure in secret, in a house not a clinic or hospital; conducted such a procedure while the complainants' mother was present; conducted such a procedure while other women were present; conducted such a procedure whilst there were no men present; and conducted a procedure that is not generally spoken about.
As to A2, the Crown sought to rely on the following similarities between the allegations of each complainant, in order to prove the truth of each complainant's account (trial MFI 111) - that she: engaged in organising a procedure which caused the genitals of C1 and C2 to be cut; engaged in such a procedure that caused the genitals of the complainants to hurt; engaged in such a procedure whilst the complainants were lying down; engaged in such a procedure in secret, in a house not a clinic or hospital; engaged in such a procedure which was performed by a woman who was not related to the complainants; was present while such a procedure was being performed; engaged in such a procedure while other women were present; engaged in such a procedure whilst there were no men present; engaged in such a procedure that is not generally spoken about; and engaged in such a procedure which amounted to female genital mutilation.
Counsel for A2 and Magennis objected to the use of coincidence reasoning and to his Honour giving a coincidence direction.

[152]

Trial judge's ruling

His Honour's reasons on the coincidence evidence are in Judgment No 18. His Honour noted that the principles to be applied on the application were not in doubt and referred to a number of decisions including DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9; R v Gale [2012] NSWCCA 174; (2012) 217 A Crim R 487; R v MR [2013] NSWCCA 236 and El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 ("El-Haddad").
His Honour observed that the issues in dispute in the trial were relatively narrow; and that there was no dispute that Magennis, in the presence of and at the request of A2, did something with a metal instrument to each complainant. His Honour noted that the Crown said that khatna (or circumcision) involving a cut or nick to the clitoris was performed; and that the appellants asserted that there was a form of symbolic khatna, where no cut or nick resulted.
His Honour noted that the Crown had submitted that there were similarities such that it was highly improbable that each complainant could be giving her account by sheer chance or coincidence (Judgment No 18 at [25]). His Honour noted that many of the similarities between what happened to C1 and what happened to C2 were not in dispute and said that it was "the final and critical step or event concerning what was done physically to each child which is in contest" (at [31]).
His Honour considered that the accounts of C1 and C2 supported the Crown case that something more than a symbolic touching of the genital area occurred (at [34]). His Honour then said it would be "open to the jury to consider whether the two events occurred coincidentally in this case as part of a benign, symbolic ceremony, or, as the Crown asserts, as part of a circumcision procedure causing a cut or nick to the clitoris, or at least, the genital area" (at [35]).
His Honour also said that the evidence would bear upon the question of whether each complainant had given credible and reliable evidence regarding what happened to each of them (Judgment No 18 at [36]).
His Honour said the purpose of coincidence evidence was to permit the jury to undertake an inferential process leading to the question: "Is it improbable that the two events occurred coincidentally?" and said (at [33]) that if a coincidence direction were to be given, "it will allow the jury to consider similarities and dissimilarities, including that part of each child's account which supports the Crown case that a cut or nick to the clitoris or genital area occurred - the process is not confined to undisputed similarities". Further, his Honour noted that it was not necessary for the jury "to be satisfied beyond reasonable doubt concerning the allegations about one child or the other before this process is undertaken - it will be a matter for the jury, as the tribunal of fact, to determine what inferences should be drawn concerning the acts alleged to have been carried out by KM and A2".
His Honour then said (at [37]): In my view, the evidence is such as would permit the jury, acting reasonably, to reach the conclusion (advanced by the Crown) or to draw that inference so that the evidence has significant probative value: R v Gale; R v Duckworth at 495 [27]. I am satisfied, for the purpose of s.101, that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused persons.
His Honour noted that this was a case where there was an overlap between the tendency and coincidence rules, of the type which arises in particular cases where there is no dispute as to the identity of the alleged offender but what is in issue is whether the offences occurred.

[154]

Complaint as to admission of coincidence evidence

The appellants argue that in analysing the probative value of coincidence evidence (and in making directions to the jury on the subject) it is a serious logical fallacy to include an "event" the occurrence of which is a fact in issue in the "events" that give rise to coincidence reasoning in respect of that event, referring to R v Gale where Simpson J, as her Honour then was, said at [37] that "similarities for the purposes of s 98 must be capable of proof by means other than the "facts" sought to be established" and that the coincidence reasoning cannot assume the very fact sought to be proved by the coincidence evidence.
The significance of this, the appellants say, is that, in concluding that the evidence had significant probative value as coincidence evidence, his Honour assumed the truth of the allegations made by C1 and C2 and repeated this in the directions given to the jury.
The appellants argue that his Honour framed the wrong question when he described the purpose of the coincidence evidence as being "to permit the jury to undertake an inferential process leading to the question: Is it improbable that the two events occurred coincidentally?" (Judgment No 18 at [32]); rather, according to the appellants, the relevant question was whether it was improbable that the two complainants would make the same allegation (referring by way of example to Hoch v The Queen (1988) 165 CLR 292 at 296; [1988] HCA 50, albeit in the context of the common law before the enactment of the Evidence Act). It is submitted that asking whether it was improbable that the two events occurred coincidentally assumes that the events did in fact occur (which is what the evidence is being used to prove) and invites circular reasoning.
It is submitted that framing the question in this way also skews and affects the analysis of whether the evidence had significant probative value - because it asks whether the evidence has significant probative value to prove whether the events occurred coincidentally, whereas the correct question in this case was whether the complainants' allegations were sufficiently similar that it made it improbable that the two allegations were made coincidentally.
The appellants maintain that this error flowed through to his Honour's conclusion regarding significant probative value. The appellants again argue that his Honour erroneously framed the coincidence reasoning as applying to the happening of the event and not the making of the allegation.
Insofar as his Honour also said that the evidence would bear upon the question of whether each complainant has given credible and reliable evidence regarding what happened to them (Judgment No 18 at [36]), the appellants accept that the use of coincidence reasoning where similar allegations are made is based on the unlikelihood of two complainants making similar allegations, which gives force to the contention that they are telling the truth and therefore might be seen as supporting the credibility or reliability of the complainants' evidence. However, they argue that because this is the mode of reasoning employed, matters regarding whether that inference can be drawn will affect the strength of the probative value to be attributed to the evidence.
It is submitted that his Honour erred in concluding that the evidence had significant probative value since his Honour's assessment of the probative value of the evidence as coincidence evidence was limited to whether the events occurred rather than whether the allegations were made and his Honour failed to consider the correct question - namely, what was the probative value of the evidence to support the inference that each count occurred on the basis that it was improbable that the complainants made similar allegations.
The appellants argue that it was erroneous for his Honour to conclude that the evidence had significant probative value as coincidence evidence. First, they say that, to the extent that his Honour only considered that it was open to the jury to consider that the events occurred coincidentally in proof of the counts, that relies upon the truth of the events; and that in those circumstances it could not be concluded that the evidence had significant probative value because it involved illogical reasoning. Second, they say that the evidence could not be said to have significant probative value as coincidence evidence even if the correct question was asked, because there were matters which strongly suggested that any similarities in the complainants' accounts (and in particular their evidence that they had been cut) were not an improbable coincidence but a result of the form of questioning.
The appellants point to the exchange between his Honour and counsel to the effect that the case for coincidence might be stronger than tendency (in which counsel for Magennis said: "What is the jury going to be told about what the coincidence is? It can only be that both girls complain of a cut or being hurt in the genital area. Now that is in the context where these two are sisters, your Honour. They live in the same house" - seeT 1719.37-1719.41) and note that counsel for Magennis later maintained his objection to the jury being given coincidence evidence directions in the context where he accepted tendency directions could be given (see T 1866-1867; the draft directions on coincidence prepared by the Crown being trial MFI 110 and trial MFI 111).
The appellants accept that the inference identified by the Crown in the draft direction (that "because the allegations made by each of the complainants against [the appellant] are so similar in the particular conduct attributed to [the appellant] it is highly likely that each is telling you the truth in giving her separate accounts" - see MFI 110 at [8]) correctly identifies the inference sought to be drawn from the coincidence reasoning. However, they say that reference in the draft direction to the appellant conducting herself in a particular way assumes the events occurred.
The appellants note that the form of coincidence reasoning contended for by the Crown in oral submissions was different to the way in which his Honour left the case to the jury on the subject. In particular, they note that the Crown was not relying on the happening of something to the complainants as giving rise to coincidence reasoning but, rather, on the fact that both had made separate allegations and whether those allegations were true (see T 1870.1-1870.8).
It is noted that counsel appearing for Vaziri and A2 at the trial agreed with that analysis in a theoretical sense but added that "[t]he difference in this case is that the similarities in the accounts between the two girls which do coincide, there is no dispute about it. There was a khatna ceremony… coincidence reasoning is not required in this case. What is at issue is the 10%, to pick up your Honour's description of the final act as it were, and the girls in my respectful submission, don't of themselves give the coincidence circumstance on that fact. That is the ultimate fact that the jury are going to have to determine on all of the evidence. That's the reason in my respectful submission coincidence is not appropriate in this case" (T 1870.14-1870.24).
The appellants note that issues regarding the interview with C2 raised in the context of ground 4 bear upon an assessment of the probative value of the evidence for the purposes of s 98(1) of the Evidence Act (which it is submitted is in accordance with the approach in IMM v The Queen at [50]) because the Court must look at the total circumstances of the evidence when assessing its probative value. The appellants submit that the answers given by C2 in the interview were affirmative responses to leading questions and need to be assessed in the context of C2's lack of understanding of the difference between the truth and a lie.
The appellants also observe that some of the alleged "similarities" could not be gleaned from C2's account - giving by way of example, whether other women were present, that no men were present, and that the procedure was not generally spoken about.
The appellants argue that the nature of the similarities in the complainants' allegations could not inform the question as to the improbability that the allegations were made coincidentally in circumstances where the narrow issue in dispute was as to whether what happened was a cut or nick to the clitoris or was, as the appellants contended, a symbolic procedure. It is said that the similarity in the accounts was reduced to the assertion that there was a cut and that there was hurting. The appellants point out that it was accepted that there was no differentiation physically between what happened to C1 and C2 (see submission at trial at T 1867.41-1867.42).
The appellants maintain that there were a number of matters that deprived the evidence of C1 and C2 of significant probative value as coincidence evidence. First, they note that C1's account that she had been cut in her private part was made in the context of having previously denied that someone had done something to her private part and having said that she did not know what khatna was; and was not voluntarily disclosed in circumstances where the idea that there had been a cut to her private part was introduced by the interviewer. Second, the appellants emphasise that C2's account was made in response to a leading question by the same person that had conducted the interview with C1 less than an hour earlier and there was again no voluntary disclosure to the interviewers that she had had a cut to her private part (and C2 did not know where her private part was).
Third, the appellants point to the paucity of details in C2's account, which meant there was little evidence of similarities between the complainants' accounts (submitting that at best all that could be said was that there was evidence of a cut to the complainants' private parts by another woman, that there was some pain, that it occurred while the complainants were lying on the bed, and that it occurred at the age of six or seven). Fourth, the appellants' point to the difficulties with respect to C2's evidence arising from her lack of understanding of the difference between the truth and a lie.
Thus it is submitted that the inference that it was improbable that the two complainants would make similar allegations by coincidence was substantially weakened and that his Honour erred in ruling the evidence admissible as coincidence evidence.

[155]

Complaint as to directions on coincidence evidence

As to the complaint in relation to his Honour's directions to the jury on the use that could be made of the coincidence evidence, the appellants say, first, that his Honour erroneously identified the coincidence reasoning by reference to "similarities in the alleged conduct of each of [the appellant] and [A2]" (SU 59) rather than by reference to the fact of the making of the allegations (thus assuming the truth of the event sought to be proved) and erroneously directed the jury that the Crown submission on the coincidence evidence was "that the similarities concerning what happened to each of [C1] and [C2] are so strong that you could be satisfied that it is highly improbable that the events concerning [C1] and [C2] were not coincidental" (SU 60-61).
It is submitted that these directions invited the jury to rely on the happening of the event rather than the making of the allegations and that the jury should have been warned against using such reasoning on the basis that it was illogical. Further, it is said that the error was compounded by his Honour's comment that the jury did not need to be satisfied beyond reasonable doubt that an offence concerning one complainant occurred before considering the application of that evidence to the other complainant (SU 61).
Second, it is submitted that his Honour failed to direct the jury that they would need to be satisfied that the similarities alleged by the Crown could be gleaned from the accounts of C1 and C2 (simply noting that the Crown alleged there were similarities in the alleged conduct).
Third, complaint is made that his Honour noted that the critical issue in dispute was whether there was any cutting or nicking so as to constitute female genital mutilation (SU 60), referring to the Crown and the defence submissions. The appellants say that the defence submission was that the events were not coincidental; but also that they did not involve cutting or nicking (SU 60-61). The appellants say that the jury should have been told that before they could use this evidence they had to be satisfied that it related to whether there was in fact a cut or a nick. Complaint is made that no such direction was given; nor did his Honour give any explanation as to how precisely the jury could use the evidence to conclude that such a cut was made to the clitoris of C1 and C2.
Finally, it is said that the directions were deficient because they failed to identify for the jury the matters that affected the probative value of the evidence and failed to demonstrate how the coincidence reasoning related to the evidence as well as the critical issue in dispute at trial.

[157]

Admission of coincidence evidence

It is submitted that, in determining issues of admissibility, his Honour was well aware of the distinction between events, on the one hand, and the making of an allegation, on the other; distinguishing between these concepts in his judgment in using terms such as "accounts of the complainant" (Judgment No 18 at [33]) and the "alleged performance of female genital mutilation" (Judgment No 18 at [35]) when referring to the evidence of C1 and C2.
It is submitted that his Honour made clear that each complainant was describing an event, which was the allegation that they had been cut, and that it was that concept to which his Honour referred when he was referring to the event and when considering the issue of significant probative value.
The Crown submits that, when regard is had to the fact that for the purposes of assessing probative value under s 98 of the Evidence Act, his Honour was entitled to proceed on the assumption that the jury would accept the evidence of C1 and C2; and that, generally speaking, such a process does not involve a judge undertaking any assessment of their credibility or reliability (referring to DSJ v The Queen at [56]).
The Crown notes that while C2's original disclosure to police was provided in response to leading questions, her answer in the record of interview with investigators relating to the primary issue (whether she was cut) was not elicited in the same way; rather, C2 said that she felt "hurting in [her] bottom" in response to the non-leading question of whether she felt any pain during the procedure.
While C1 was hesitant to disclose khatna during her record of interview, the Crown submits that she too provided significant details in response to non-leading questions, referring in particular to C1's disclosure that the procedure caused her pain in her "private part" in response to a general question of what she felt during the procedure; and to her ability to articulate later in the interview that it involves "a little cut…in your private part".
The Crown points to a key similarity in the complainants' accounts, being that they both complained of pain during the procedure, and notes that the answers in respect of this issue were given in response to which were found by his Honour not to be leading (and which were not argued by defence counsel at the trial to be leading).
It is submitted that his Honour was correct to approach the issue on the assumption that the jury would accept the evidence of C1 and C2 when assessing significant probative value. It is submitted that this was not a situation where a possible alternative explanation inconsistent with guilt emerged which robbed the evidence of its otherwise cogent capacity (see DSJ v The Queen at [78] per Whealy JA (Bathurst CJ, Allsop P (as his Honour then was), McClellan CJ at CL, and McCallum J agreeing)). Further, the Crown submits that it was not in issue at the trial that no pain would be occasioned by a symbolic ceremony only.

[161]

How the issue was raised at trial

The Crown sought tendency directions in respect of the evidence of each complainant's account, such that the evidence would be cross-admissible on the charges in respect of each complainant. The directions sought contemplated the evidence of C1's account being admitted as tendency evidence on the counts relating to C2 and the evidence of C2's account being admitted as tendency evidence on the counts relating to C1 (pre-trial MFI 34, trial MFIs 108 and 109).
In the Crown written submissions on the cross-admissibility of each complainant's evidence as tendency evidence, the tendency of Magennis sought to be proved was said to be as follows (pre-trial MFI 34 at [57]): to perform procedures that amount to female genital mutilation; to perform such procedures against pre-pubescent, female children; to do so during the NSW public school holidays; to do so while the child is laying down on a bed; to do so in a private house, not a clinic or hospital; to do so while other women, related to the child, are in the room; and generally not to speak about such procedures in the greater public.
The tendency of A2 sought to be proved was said to be a tendency (pre-trial MFI 34 at [56]): to engage in activity that amounts to female genital mutilation; to engage in such activities against her biological, pre-pubescent, female children; to be present in the room, whilst the activity is being conducted on her children; to do so during the NSW public school holidays; to do so while the child was laying down on a bed; to do so in a private house, not a clinic or hospital; to do so whilst other women, related to the child are in the room; to speak to the children about such activities prior to them occurring; to tell the children after such activities have occurred that they are not to talk about them; and generally not to speak about such activities to the greater public.
Similarly to the coincidence evidence, the tendency evidence was only sought to be led against A2 and Magennis.
Counsel for Magennis at trial argued that apart from the first alleged tendency, the other matters were not tendencies that had significant probative value in the trial (see T 1717.45-1717.48). The first alleged tendency was the issue that was in dispute (T 1717). It was argued that the other matters in the tendency notice were not in dispute and they did not lead to a conclusion that the first had occurred (T 1718.35).
There was further argument on whether the jury should be given tendency evidence directions after the provision of draft directions prepared by the Crown (MFIs 108 and 109). His Honour noted that the case was "unusual in that 90% of what happened is common ground. It's the critical 10% that's in dispute" (T 1864.36-1864.37). His Honour then queried whether it was open to direct the jury that "if … the Crown satisfies them that the critical last bit occurred with [C1], then they utilise that in considering the count involving [C2]? Or vice versa" (T 1865.10-1865.13). Counsel for Magennis at trial accepted this was an available approach (T 1865.15).
Counsel for Magennis at trial noted, in relation to Magennis, that the only tendencies in dispute were those particularised at 3 and (b) in MF108, namely: "[t]o perform procedures that amount to female genital mutilation" and "to FGM procedures against pre-pubescent, female, children"; all the other tendencies were either agreed or irrelevant (T 1865.46-50).
His Honour said that "the Crown are entitled to argue I think, that if one gets 90% down the pathway, then you might more readily move the final 10%, but that depends eventually upon the jury's view by reference to the whole of the evidence" (T 1866.2-1866.5). The appellants submit that this analysis is questionable, noting that his Honour had earlier appeared to question whether this analysis would satisfy the requirement for the evidence to have significant probative value (see T 1865.42-1865.44). Counsel for Magennis at trial also submitted that the tendency in 3 and (b) should be particularised as "a cut or nick to the clitoris".
Counsel for A2 at trial adopted the submissions of counsel for Magennis outlined above (at [990]-[993]): T 1867.22-1867.24.

[164]

Appellants' submissions

It is submitted that the directions to the jury regarding the use of tendency evidence were erroneous and inadequate in several respects. The appellants argue that, although counsel for the appellants at trial appeared to acquiesce in a direction being given, this was limited to acquiescence that only one complainant's evidence (C1) could be used in respect of the other (not both accounts being left as tendency evidence in respect of each other). Further, it is noted that suggested amendments of the draft directions were not adopted by his Honour in his directions to the jury on the subject.
The appellants note that most, if not all, of the alleged tendencies (other than the first two) were not in fact tendencies of Magennis or A2 to act in a particular way; they were circumstances in which Magennis or A2 was alleged to have acted in a particular way. It is submitted that it was erroneous for his Honour to refer to these matters as relevant tendencies.
The direction noted that the Crown alleged that Magennis and A2 had a pattern of behaviour that was revealed in the list of factors; and later that this pattern of behaviour could be taken into account when considering each charge regarding the separate complainants (SU 58-59). It is submitted that this implied that the existence of these tendencies could inform the existence of the tendency to behave in the particular way alleged in the first two of the tendencies (see SU 58-59).
The appellants argue that the matters (other than the first two matters) said to be alleged tendencies were not in dispute; nor was it in dispute that these matters existed on both complainants' counts. Rather, it was disputed that these matters were capable of bearing upon what his Honour said was the remaining 10 per cent in dispute. The appellants say that none of those alleged tendencies permitted an inference that Magennis cut or nicked the clitoris of C1 or C2 and that it should have been made clear to the jury that they could not reason that the other matters (which were not in dispute) could inform whether there was a nick or cut to the clitorises of C1 or C2.
It is submitted that the jury should have been told that they had to be satisfied that the evidence established the existence of the tendency of the appellant to act in a particular way before they could take it into account in proof of her guilt. It is said that the direction that if they were satisfied beyond reasonable doubt that khatna of the nicking or cutting variety was performed on one complainant that it could be taken into account in proof of her guilt in relation to the other complainant was not sufficient; rather, the jury should have been told that they had to be satisfied beyond reasonable doubt that one of the counts occurred (either against C1 or C2) and before they could take this into account in proof of the count against the other complainant they had to be satisfied from that evidence alone that the appellant had a tendency to act in the particular way alleged (that is, the tendency alleged in the first two matters with respect to each of A2 and Magennis).
Further it is said that the direction was inadequate because it referred to the first tendency as the performance of procedures that amounted to "female genital mutilation", whereas the issue in dispute was whether there had been an injury to the clitoris.
The jury were told that (SU 58-59): In the circumstances of this trial, I direct you that if you are satisfied beyond reasonable doubt that "khatna" (involving cutting or nicking) was performed on one girl, you may take that finding into account in deciding whether "khatna" (involving cutting or nicking) was carried out on the other girl. In this way, you would be permitted to take into account the pattern of behaviour or alleged tendency on behalf of each of [the appellant] and [A2] to act in the manner alleged, when considering your verdicts on the charges involving each girl.
The appellants argue that this failed to make clear to the jury that they could only use the evidence of one complainant as tendency evidence on the count involving the other complainant if satisfied that the count in respect of the first complainant was proved beyond reasonable doubt and they were satisfied that that evidence indicated that the appellant had the requisite tendency. In particular, it is said that the direction that "In this way, you would be permitted to take into account the pattern of behaviour or alleged tendency on behalf of each of [Magennis] and [A2] to act in the manner alleged, when considering your verdicts on the charges involving each girl" (SU 58-59) and its later description as "cross-admissibility of evidence as between the events of one girl to the events of another" (SU 59) suggested that the jury could use the evidence of both complainants in support of the alleged tendency, which could be then used as proof of guilt for both complainants (notwithstanding the direction that they had to be satisfied beyond reasonable doubt that it happened to one of the complainants).
It is submitted that the precise mode of reasoning contemplated (by reference to the evidence in the case) should have been identified for the jury; that the jury should have been told that if they were satisfied beyond reasonable doubt that Magennis had cut or nicked the clitoris of C1 (i.e. of the truth of the C1's account) then they should consider whether C1's evidence indicated that Magennis had a tendency to cut or nick the clitoris in the circumstances alleged (said to be tendencies but more properly characterised as circumstances); and that, when considering whether this tendency was established, the jury should have been told that they could not have regard to the evidence of C2. It is submitted that the jury should then have been told that if they were satisfied that there was such a tendency of Magennis, then this could be used in support of the Crown case against Magennis in respect of C2.
It is submitted that the jury should also have been informed that they could take into account whether the evidence of C1 enabled the jury to conclude that Magennis had cut her clitoris and whether the evidence of C1 enabled the jury to conclude that Magennis had a tendency to cut the clitorises of pre-pubescent girls in those circumstances as alleged.
It is submitted that such an analysis indicates the problems in relying on tendency evidence in this case. In particular, the appellants emphasise that C1's evidence that she was cut was the result of a series of leading questions and that in her evidence at trial she could not exclude that it was a pinching; and she could not identify precisely where she was cut, but instead referred to it as her private parts. It is submitted that this raised doubt as to first, whether that evidence had significant probative value and, second, whether it had significant probative value as tendency evidence. It is submitted that it could not have had that quality.
The appellants accept that the evidence of C1 was stronger than the evidence of C2 regarding the procedure performed and note that the procedure performed on C1 was also the earlier in time. It is submitted that this made it the better fit for a tendency direction - that is, the evidence of C1 may have had some force as tendency evidence in respect of the count regarding C2 (although it is not accepted by the appellants that it had significant probative value in this respect). However, it is submitted that the reverse was not true; namely, it is said that the evidence of C2 had little, if any, value as tendency evidence in respect of the count regarding C1. The appellants note that the procedure on C2 occurred after the procedure on C1; and that C2's evidence was far more ambiguous and convoluted than C1's evidence. It is said that while his Honour referred to this in his judgment (Judgment No 18 at [17]-[18]), his Honour did not address the ramifications of this in relation to his finding of significant probative value. It is submitted that the problems with C2's evidence and the fact that it occurred second in time deprived it of much of its value as tendency evidence. Thus it is submitted that the directions to the jury on tendency should have been limited to using C1's evidence in respect of the count involving C2, but not vice versa.
The appellants note that the tendency evidence was the evidence of each other complainant's account; that neither C1 nor C2 volunteered that their private parts were cut; that C1 in evidence could not exclude a pinching; and that C2 could not identify where the private part was on the diagram of the body.
The appellants note that the jury were told that if they were not satisfied the complainant was cut to the clitoris then the alternative count of assault occasioning actual bodily harm arose for consideration. It is said that the inability of this evidence to distinguish precisely where each complainant was cut affected what could be concluded about the strength of its probative value and also affected the way in which it could be used as tendency evidence on each count; and that the directions to the jury elided these complexities.

[165]

Crown submissions

The Crown accepts that C1's account provided more detail than C2's, but points out that C1 was two years older than C2 at the time of the JIRT interview. The Crown submits that the fact that one complainant's account provides more detail than the other does not, in itself, deprive the second account from being able to have significant probative value in relation to the first.
The Crown submits that, when determining the probative value of evidence for the purposes of s 97(1) of the Evidence Act, his Honour was to assume that the jury would accept the evidence of C2; he was not to have regard to the credibility or reliability of the evidence (IMM v The Queen at [51]-[52], [54], [58]).
The Crown argues that the description of pain by C2 during the relevant procedure, taken at its highest, strongly supported proof of the relevant tendency and that this tendency strongly supported proof of the critical fact in issue, namely whether C1's clitoris was cut (or nicked) (referring to Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 at [41] ("Hughes")).
The Crown submits that the fact that the procedure involving C2 occurred later in time did not deprive the evidence of its significant probative value (referring to RH v R [2014] NSWCCA 71; (2014) 241 A Crim R 1), noting that the gap in time was readily explicable by the fact that there was a need for C2 to reach the age of six before the procedure could be carried out upon her.
As to the directions in respect of tendency evidence, the Crown submits that the tendency in this case was properly identified with a high level of specificity (citing Hughes and El-Haddad) and that it relied upon the cumulative effect of the various matters identified.
The Crown points out that commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue (referring to Hughes at [39]); and submits that the "particular way" in which a person is alleged to act necessarily can incorporate the circumstances of those actions. The Crown notes that in Hughes the relevant tendency identified incorporated the circumstance of a high risk of detection.
The Crown submits that the fact that relevant matters identified in the asserted tendency were not in dispute did not preclude the Crown from relying upon them for their cumulative effect to demonstrate a very specific tendency or pattern of behaviour; and that the absence of challenge to those tendencies did not mean that the remaining two factors should be considered in a vacuum.
The Crown points out that, after setting out the relevant tendency as asserted by the Crown, his Honour immediately noted that most of the factors were not really in dispute in the case and that it was the feature involving the performance of the alleged genital mutilation which was in dispute in the trial.
As to the complaint that the jury should have been directed that they had to be satisfied that the evidence established the existence of the tendency of the appellants to act in a particular way before they could take it into account in proof of guilt (and that the direction that if they were satisfied beyond reasonable doubt that khatna of the nicking or cutting variety was performed on one complainant that that could be taken into account in proof of the guilty of the other complainant was not sufficient), the Crown argues that there was no need for such a direction to be given in this instance because the finding of the relevant tendency was necessarily implicit in the finding that the nicking or cutting occurred beyond reasonable doubt. No such amendment, as now contended for, was sought at the trial, from which it is submitted that it was at that time recognised that no such direction was required.
As to the contention that his Honour's directions suggested that the jury could use the evidence of both complainants in support of the alleged tendency, which could then be used in proof of guilt for both complainants, it is submitted that this is unsustainable in light of his Honour's directions at SU 58-59, which included reference in clear terms to the need for the jury to be satisfied beyond reasonable doubt of what happened to one of the complainants before they could engage in tendency reasoning in respect of the other complainant.

[167]

Ground 6 and ground 7(c)

We turn first to consider whether the trial judge erred in permitting the Crown to rely upon the evidence of C1 and C2 as coincidence evidence. As the summary of the relevant submissions above highlights, a number of discrete errors were relied upon. Particular criticism was directed at the fact that the trial judge sought to compare the events (that is, the procedure performed) as opposed to the accounts provided by C1 and C2. The Crown response is that the references to "events" in his Honour's judgment clearly refer to "accounts".
We are satisfied that his Honour made a number of references in his reasons to the "accounts" of each child (see, for example, Judgment No 18 at [33] and [34]), and his Honour noted in his reasons that the jury would be invited to have regard to the similarities and dissimilarities for the purpose of drawing inferences as to what was actually done to each child on each occasion, referring to the "contested event in question" as the "alleged performance of FGM" (Judgment No 18 at [35], emphasis added). We do not accept that his Honour asked the wrong question or engaged in circular reasoning in this respect.
However, the appellants also submit that, even if the correct question was asked, his Honour erred in concluding that the evidence had significant probative value as coincidence evidence.
The coincidence rule appears in Part 3.6 of the Evidence Act. Section 98(1) states an exclusionary rule, with an exception to that rule provided in s 98(1)(b): Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: … (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The "probative value" of evidence is defined in Part 1 of the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".
In IMM v The Queen, the High Court considered the exercise to be undertaken by a trial judge in determining the "probative value" of evidence for the purposes of each of ss 97(1)(b) and 137, and a resolved a divergence in approaches that had emerged between this Court and the Victorian Court of Appeal (compare, for example, R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112; R v XY (2013) 84 NSWLR 363; [2013] NSWCA 121; and Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328). Relevantly for present purposes, the High Court held (at [44]-[46] per French CJ, Kiefel, Bell and Keane JJ) that: The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. … Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge. Cross on Evidence [10th Aust ed (2015) p 763 at [21252]] suggests that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
The High Court went on to explain, at [52], that once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to the credibility or reliability of the evidence can arise; if the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated.
It may be that the circumstances surrounding the evidence indicate that, even taken at its highest, that highest level is "not very high at all" (IMM v The Queen at [50]). This was, in effect, the result reached with respect to the tendency evidence in issue in IMM v The Queen, as the High Court concluded that the evidence lacked the requisite degree of probative value for the purposes of s 97(1)(b) (see at [62]-[64]).
The observations in IMM v The Queen as to the assessment of "significant probative value" for the purposes of s 97(1)(b) apply with equal force to the meaning of "significant probative value" in s 98(1)(b) (see R v Mantonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 per Bathurst CJ at [78], Rothman and McCallum JJ agreeing).
Specifically with respect to coincidence evidence, in DSJ v The Queen, a five-judge Bench of this Court held that s 98(1)(b) requires a trial judge to determine whether the evidence is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue (per Bathurst CJ at [8], Whealy JA at [55]; Allsop P (as his Honour then was), McClellan CJ at CL, and McCallum J agreeing). Their Honours emphasised that the trial judge makes no evaluation of the actual weight of the evidence, Bathurst CJ observing, for example (at [8]), that: [W]hat the court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence. (This reasoning, albeit not referred to by the plurality in IMM v The Queen, accords with the view there adopted.)
Turning to the present case, it is not in dispute that the evidence of each of C1 and C2 was relevant; the question is whether it rose to the level of "significant" probative value for the purposes of s 98(1)(b). On the assumption (required by IMM v The Queen) that C1 and C2's evidence were to be accepted by the jury, it would clearly be influential and important in the context of fact-finding.
Even accepting the appellants' argument that the relevant similarities in C1 and C2's accounts (given the limited scope of the facts in issue) were effectively reduced to the assertion that there was a cut and that there was hurting, nonetheless those similarities were in our view capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue in the context of the other evidence led at the trial. Section 98(1)(b) required the trial judge to consider whether the evidence would "either by itself or having regard to other evidence adduced … by the [Crown] have significant probative value". As we have stated above at [629], a different conclusion might have been reached in the absence of some of the evidence of Dr X and given the fresh medical evidence.
The appellants pointed to matters which were said to strongly suggest that any similarities in C1 and C2's accounts were not an improbable coincidence but, rather, a result of the form of questioning - referring in particular to the fact that the relevant answers given by C1 and C2 in their interviews were not voluntarily disclosed, in the sense that the idea that there had been a cut to each complainant's private parts was introduced by the interviewer. However, we accept the Crown submission that C1 and C2's answers about the pain they felt during the procedure were in response to non-leading questions, and that C1, especially, provided significant details in response to non-leading questions. The form of questioning which elicited C1 and C2's evidence could be taken into account by the jury in assessing the weight (and reliability) of the evidence; this factor does not rob the evidence, taken at its highest, of a significant capacity (including in light of other evidence adduced or to be adduced) to rationally affect the assessment of the probability of the existence of a fact in issue.
The appellants relied under this ground on the difficulties arising from C2's interview raised under ground 4, submitting that the probative value of C2's evidence needed to be assessed in the context of C2's lack of understanding of the difference between the truth and a lie. Earlier in these reasons, we have accepted (see above at [877]; [881]) that C2 was not competent to give sworn evidence. However, as stated above at [627], this factor goes to the weight of C2's evidence, not its probative value as defined in accordance with the authorities outlined above.
Under ground 7(c), the appellants maintain that his Honour erred in his directions to the jury on the subject of coincidence evidence. Again, complaint is made that the trial judge focussed on conduct or events, rather than C1 and C2's accounts or allegations. However, reading the directions as a whole, we are satisfied that in referring to "what allegedly occurred" to C1 and C2, his Honour did not direct the jury incorrectly. It is well-established that the trial judge's summing up must be read as a whole, and when addressing a complaint as to a jury direction, it is insufficient to point to sentences or parts of sentence in isolation (see, for example, Selby v R [2017] NSWCCA 40 at [41]). His Honour expressly directed the jury that the critical issues in dispute were "whether there was any cutting or nicking so as to constitute female genital mutilation" (SU 60) and reminded the jury that the defence "says that they were not coincidental, but neither involved cutting or nicking, they were a symbolic 'skin sniffing the steel' procedure not involving any cutting or nicking" (SU 61).
There was no objection taken by defence counsel (for either Magennis or A2) at trial to the directions on coincidence evidence given by his Honour to the jury and no redirection was sought (see SU 59-62). Defence counsel for both Magennis and A2 had engaged in discussion with his Honour as to the framing of the direction: see T 1863-1870. This is again a case where, as we observed (see [933]-[935] above) in relation to the consciousness of guilt directions, the fact that counsel did not raise any issues on the summing up supports the conclusion that it was not thought that the words chosen had a material impact upon the jury's appreciation of its task, and indicates the fairness and adequacy of the summing up: see Selby v R at [46]; Tekely v R [2007] NSWCCA 75 at [88], [130].
Accordingly, the appellants have not succeeded in establishing error in respect of the admission of, or directions as to, coincidence evidence and, to the extent that leave pursuant to r 4 of the Criminal Appeal Rules is (as the Crown submitted) required to now raise objection to the directions, we would refuse to grant that leave.

[168]

Grounds 7(a) and 7(b)

The overwhelming focus of the appellants' submissions on these sub-grounds is in pointing to error in the trial judge's directions to the jury with respect to tendency evidence. That is, the submissions focus on ground 7(b).
The obvious difficulty with many of the specific criticisms of the trial judge's tendency directions is that, as his Honour noted in Judgment No 18 (at [20]-[23]), neither counsel for Magennis nor counsel for A2 opposed his Honour's proposed directions. In response to this difficulty, the appellants say that the acquiescence in a direction being given was limited to acquiescence only that one complainant's evidence (C1's) could be used in respect of the other, not both complainants' accounts being left as tendency evidence in respect of each other.
First, this is by no means apparent from the relevant part of the transcript, where his Honour said: I suppose one way of looking at this may be if the jury looked at this say and thought, "Well, we'll start with the count alleging FGM against [C1]" and if they were satisfied beyond reasonable doubt that count 1 was established against Mrs Magennis, could they then utilise that finding by way of tendency evidence, when it comes to looking at the count involving FGM against [C2], bearing in mind that almost everything is the same, except the critical last bit, and if they are satisfied the Crown satisfies them that the critical last bit occurred with [C1], then could they utilise that in considering the count involving [C2]? Or vice versa. I'm using the [C1] example at this stage. Is that an available approach?
It is open to read the words "[o]r vice versa" as indicating that, while his Honour was using C1 as an example, the proposal was to permit both complainants' accounts to be left as tendency evidence in respect of each other.
However, even assuming in the appellants' favour that any acquiescence to a tendency direction related only to C1's evidence, the further difficulty arises that when, during the summing up, his Honour expressly made tendency directions in respect of both complainants, the appellants did not then object or seek a redirection despite being given the opportunity to do so (see SU 56-62).
When his Honour's directions are viewed as a whole, we are not persuaded that his Honour erred. To address several of the appellants' specific complaints: although his Honour noted the Crown's list of alleged tendencies with respect to Magennis, he immediately went on to say that the "very live issue" was only "the suggested tendency to engage in FGM activity" and that it was "the features involving the performance of alleged female genital mutilation which are in dispute in the trial" (SU 57-58). True it is that his Honour referred at this stage to "FGM" rather than to cutting or nicking specifically, however in the very next paragraph (extracted at [1003] above), his Honour proceeded to focus on "khatna", involving "cutting or nicking", and made it clear that a prerequisite of using one complainant's evidence as tendency evidence was that the jury were "satisfied beyond reasonable doubt" that khatna was performed on that complainant.
In our view, his Honour's directions were appropriate and, applying the principles discussed in more depth above with respect to alleging errors in directions, in circumstances where neither those errors - nor indeed any objection - were raised at trial, we find that ground 7(b) should be dismissed.
We return now to what is really an anterior question, as to the admission of C2's evidence as tendency evidence in relation to the charge with respect to C1 (noting that the reverse - the admission of C1's evidence as tendency evidence in relation to the charge with respect to C2 - is not challenged on appeal).
The appellants maintain that C2's evidence was ambiguous and convoluted, and that C2's inability to distinguish precisely where she was cut (that is, whether there was a cut to the clitoris) affected what could be concluded about the probative value of her evidence.
As already addressed under ground 6, the requirement for admissibility under s 97(1)(b) of the Evidence Act is that the court thinks that the evidence will, either by itself or having regard to other evidence adduced (by the Crown) have significant probative value. This requires an assumption that the jury accept C2's evidence. The High Court's approach to tendency evidence in IMM v The Queen was recently reiterated by a majority of that Court in Hughes (per Kiefel CJ, Bell, Keane and Edelman JJ at [16]). We accept that there was a paucity of detail in C2's evidence, as well as ambiguities and contradictions. Those matters were all capable of being considered by a jury engaged in its task of evaluating the weight to be attributed to it. Importantly, that evaluation would have occurred in the context of all of the other evidence in the trial. On that basis we see no error in his Honour's conclusion as to its admissibility. Again, as we have observed above at [629], a different conclusion might have been reached in the absence of some of the evidence of Dr X and given the fresh medical evidence.
Finally, we should note (although neither party focussed upon this in submissions) that again r 4 of the Criminal Appeal Rules would presumably be engaged in respect of these grounds, given the conduct of the trial. We would refuse leave to rely on ground 7(b), for similar reasons as expressed above with respect to ground 7(c).
As to leave with respect to ground 7(a) - it can be accepted that C2's evidence, even taken at its highest, was weaker than C1's and was certainly not specific as to, for example, precisely what part of the female genitalia was said to have been cut or nicked. We have concluded that it nonetheless possessed the requisite degree of consequence and importance to be said to have significant capacity to rationally affect the assessment of the probability of the existence of a fact in issue. However, the appellants may be considered to have had at least an "arguable case". In those circumstances, we would grant leave pursuant to r 4 to rely upon ground 7(a), but dismiss the ground on its merits.

[169]

Ground 8 - FGM community education program

Ground 8 contends that his Honour erred in admitting the evidence regarding the FGM community education program. The evidence has been summarised above (see at [300]-[303]).
The Crown had sought to adduce this evidence: first, on the basis that Magennis had been a registered health professional at a time when there was an education program concerning female genital mutilation directed towards health professionals (Judgment No 7 at [15]). There was no evidence that Magennis actually attended any particular female genital mutilation education session. The Crown argued that it could be inferred that it came to her attention when she was a nurse/midwife (Judgment No 7 at [15]).
The second basis on which the Crown sought to adduce this evidence (against each of the appellants) was that it served to fortify the proposition that the development of the Africa checking story evidenced a consciousness of guilt of the offence contrary to s 45 of the Crimes Act (Judgment No 7 at [16]-[18]). This reasoning was based on the fact that A1 (the father of C1 and C2) was a medical practitioner and it was argued that it could be inferred that he was aware of the education material. The Crown argued that he was closely involved in the development of the Africa checking story with each of the accused and, even though he was not an accused person (nor present at the time the procedures were conducted), this could be used to show that the Africa checking story was known to be false (Judgment No 7 at [16]).
The Crown also submitted that "it may be inferred, from the content and frequency of these conversations, that not only did [A1] know of the New South Wales education material concerning FGM, but that he told the accused persons about this matter" (Judgment No 7 at [17]). There was no direct evidence that he had done so.
The third basis on which the Crown submitted the evidence was relevant was that it related to evidence given by Professor Grover (the medical expert relied upon by the appellants) regarding female genital mutilation in Australia (Judgment No 7 at [19]).

[170]

Trial judge's rulings

His Honour ruled the evidence admissible on each of the three bases on which it was submitted to be relevant.
As to the first, his Honour found the evidence to be relevant on the basis that it was "capable of assisting the jury in considering [the appellant Magennis'] responses to being told that [C1] had told investigators what had happened, and in assessing whether her responses (orally and by conduct) constituted admissions or are evidence of consciousness of guilt on her part, that what had happened with each girl involved the performance of FGM resulting in some injury" (Judgment No 7 at [40]). His Honour held that the evidence was admissible against the Magennis on this basis.
As to the second, his Honour (Judgment No 7 at [41]) said the evidence was relevant to assessing the responses in the telecommunications intercept material where the accused persons and A1 developed an allegedly false story in the form of the Africa checking story (Judgment No 7 at [41]). This was because of A1's position "as a practising medical practitioner in this State, taken with his alleged part in developing with the Accused persons" the "Africa checking story" (Judgment No 7 at [41]). His Honour held that the evidence was admissible against each appellant on this basis.
In relation to the third basis, his Honour ruled the evidence admissible (Judgment No 7 at [49]) as being relevant to refute the evidence of Professor Grover that there was no evidence that female genital mutilation was happening in Australia and that there was a distinction between mutilation and a superficial minor cut (see Judgment at [45]-[49]). His Honour noted that the scope of the term "mutilates" was a question of law on which the jury would receive directions, not an evidentiary matter (Judgment No 7 at [46]).
His Honour said that the FGM community education program material would also assist the jury by providing information to the jury regarding female genital mutilation in NSW as communicated to health professionals and the general community (Judgment No 7 at [48], [49]).
Subsequent to his Honour's ruling and the reasons for that ruling in Judgment No 7, during the course of the evidence from Ms George and Ms Strong, an issue arose as to the admissibility of further evidence from those witnesses, being evidence that they had attended a mosque in Auburn to provide the FGM community education program material to the Imam (see at T 736). The Crown argued that this evidence was relevant to Vaziri's state of mind at the time of the offence alleged against him.
His Honour ruled the evidence admissible and noted that "The question of what information came to [Vaziri's] attention on the topic of female genital mutilation is a relevant matter and it is in a different context the subject of my ruling in judgment no 7" (T 751).

[171]

Appellants' submissions

The appellants submit that his Honour erred in concluding that the evidence was relevant on each of the three bases.
As to the first, it is submitted that in the absence of evidence that Magennis participated in or was aware of this program the evidence was not capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55 of the Evidence Act). It is submitted that there was no way of establishing the scope of the knowledge that Magennis would have gained from her exposure (if any) to such a program.
As to the second, it is submitted that, whatever was in the mind of A1 and any acknowledgment of wrongdoing on his part was irrelevant to proof of Magennis' (and her co-accused's) guilt. The appellants further say that there was no evidence that A1 was aware of this material - his evidence was that he only became aware there was an FGM education program as a result of these proceedings (T 1131-1132). It is submitted that there was no evidence that A1 communicated information obtained from the program to Magennis (or her co-accused). As he was not present when the procedures were performed it is said that very little (if anything) could be drawn from his state of mind.
As to the third basis, the appellants point out that at the trial both defence counsel said that there would not be reliance on Professor Grover's observation that there was no evidence that female genital mutilation was happening in Australia (Judgment No 7 at [45]). Even apart from the indication by his Honour that the distinction in her evidence between mutilate and superficial injury was to be disregarded by the jury, the appellants say that this evidence did not bear upon a fact in issue in the proceeding, namely whether C1 and/or C2 had suffered a cut or nick to their clitorises.
As to the additional basis upon which the further evidence of Ms George and Ms Strong was admitted (being its relevance to Vaziri's state of mind at the time of the offence alleged against him), the appellants note that Ms Strong's evidence was that the visit (by her and Ms George) to the Auburn mosque on 4 September 2012 was the first step taken to disseminate the FGM community education program material to the Dawoodi Bohra community (T 766-767). They point out that Ms Strong's evidence was that she had become aware of the possibility of female genital mutilation occurring in the community by reason of the complaint made in this case and this was the reason for the dissemination of the information in the community. The appellants submit that this further evidence was irrelevant to the case against Magennis, and in any event, it further undermined any suggestion that Magennis would have been aware of this material, which in turn affected the consciousness of guilt case against her.
The appellants submit that there was a danger that the further evidence would be used to reason to guilt on the basis that the Dawoodi Bohra community were targeted by the FGM community education program, inferring that members of that community must practise female genital mutilation and that because Magennis and A2 were members of that community then they must have committed female genital mutilation. The appellants argue that this reasoning is circular because the only reason the Dawoodi Bohra community were targeted was because of this case and the ensuing investigation; as such, it was submitted that the further evidence was irrelevant because it could not rationally affect the probability of the existence of a fact in issue.

[172]

Crown submissions

The Crown accepts that evidence that it led as to the attendance records of the seminars did not record Magennis as attending the seminars but points to the evidence that she was a very experienced nurse and midwife who had been in the profession since 1998 in Australia, and to the evidence of Ms Strong that the main method of education about female genital mutilation from 1997 until 2007, when the material was published, was workshop-based education; and that those health professionals who attended a workshop were encouraged to spread the word about FGM amongst their colleagues.
The Crown submits that there was an available inference that Magennis was exposed to the large amount of information made freely accessible through the FGM community education program to health professionals including midwives, nurses and general practitioners (including through many forms of self-education, such as the internet, word of mouth, and brochures available from various health facilities). The Crown says that whether that inference was drawn was a matter for the jury and submits that the evidence was capable of assisting the jury in considering Magennis' responses to being told that C1 disclosed to investigators what had happened and in assessing whether these responses constituted admissions or could properly be considered to evince consciousness of guilt. Thus, it is said that the evidence was capable of rationally affecting a fact in issue in the proceedings and was relevant and admissible.
As to the submission by the appellants that his Honour erred in determining that the evidence was admissible because there was no direct evidence that A2's husband, A1, was aware of the education program, that what was in the mind of A1 was irrelevant to the proof of the appellants' guilt, and that there was no evidence that A1 communicated this information to the appellants - the Crown points to the fact that there was evidence at trial which included that A1 was an experienced medical practitioner working and registered in NSW; and that he had been a resident in Australia since 2000. The Crown says that whilst there was no direct evidence that A1 had attended an educational program about female genital mutilation, he was an allied health professional who had mandatory reporting obligations and he was part of the audience the program was targeting in the education about female genital mutilation. It is said that the inference was available that he would have been exposed to the FGM community education program.
The Crown points to the electronic evidence in Ex AA and Ex AF, which, the Crown says, demonstrated that A1 was very closely involved in the development of the Africa checking story with the three appellants (pointing to Judgment No 7 at [41], where his Honour noted that on learning of the children's disclosure A1 immediately started concocting the Africa checking story). The Crown submits that evidence of the FGM campaign was relevant to the jury's assessment of the Crown's consciousness of guilt submission in relation to that fabrication.
Insofar as the appellants submit that his Honour also erred in ruling that the evidence was admissible to refute the opinion of Professor Grover that there was no evidence that female genital mutilation was happening in Australia, the Crown says that although Magennis did not ultimately rely on what was said by Professor Grover in that regard, Professor Grover was interposed and called during the Crown case. It is submitted that the evidence of the campaign was relevant and admissible to assist the jury in assessing the appropriate weight to be given to her evidence, "particularly in light of the partisan approach she took to her role" (Crown written submissions at [853]; referring to Judgment No 7 at [46]).
As to the further evidence admitted against Vaziri, the Crown points to the timing of the attendance by Ms Strong and Ms George at the mosque (which was after a Dawoodi Bohra community member sent an email suggesting female genital mutilation may be occurring), noting that it was shortly after the distribution of information at the mosque that Vaziri was charged for his involvement in the offences. It is submitted that the evidence of the distribution and timing of the information given by the educators to the mosque, and in particular evidence that Vaziri was made aware of it, was relevant in light of what Vaziri says in the recorded conversations which were in evidence and the position he takes on female genital mutilation within the community in those conversations. It is submitted that, like A1, Vaziri had an opportunity to relay his awareness of the illegality of female genital mutilation to the other appellants. The Crown argues that this inference was available on the evidence and was a relevant consideration for the jury when it came to assessing the appellants' responses in the recorded conversations.
Thus the Crown argues that the evidence was relevant and probative of a fact in issue. The Crown contends that there was no risk of impermissible reasoning by the jury as submitted by the appellants and that error has not been demonstrated in the admission of the evidence.

[173]

Determination as to ground 8

This ground concerns whether the material relating to the FGM community education program was relevant and therefore admissible under ss 55 and 56 of the Evidence Act. For the following reasons, we allow this ground of appeal.
The trial judge was satisfied that the FGM community education program material was relevant on the three bases put forward by the Crown, as well as in a fourth respect, as set out above at [1058]-[1062]. Section 55(1) of the Evidence Act relevantly provides: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
In a criminal proceeding, the facts in issue are those which establish the elements of the offence (Hughes at [16]; R v SG [2017] NSWCCA 202 at [26]).
If the evidence was not relevant, then that would have been the end of the matter. As Gleeson CJ, Gaudron, Gummow, and Hayne JJ stated in Smith v The Queen at [6]: Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise.
It is important to note at the outset that there was no evidence led in the Crown case to suggest that Magennis had seen any of the literature tendered, nor that she was aware of the particular education program. Rather, the literature was relied upon by the Crown to argue that the appellants must have known that what they were doing was wrong. That is, the fact that A1 (who was not on trial) was a medical practitioner and that Magennis was also a health practitioner was relied upon to assert that they must have known about this literature.
The four bases of relevance identified by the trial judge were: 1. to consider whether Magennis' responses evidenced consciousness of guilt that some injury had occurred; 2. to assess the circumstances surrounding the conversation (recorded in the telecommunications intercept material) in which A1 (a practising medical practitioner) and A2 concocted the Africa checking story; 3. to refute the evidence of Professor Grover that there was no evidence that female genital mutilation was happening in Australia and that there was a distinction between mutilation and a superficial minor cut; and 4. to assist the jury by providing information regarding female genital mutilation in NSW as communicated to health professionals and the general community.
It is to be accepted that if the evidence was relevant for at least one of these reasons then it was properly admitted at trial (the appellants not placing any reliance in their submissions on any reasons for exclusion of the material beyond irrelevance, such as the provisions of ss 135 and 137 of the Evidence Act).
There was no issue taken but that the attendance records of the seminars did not record Magennis as attending, nor A1 for that matter. The question is whether the occupations of Magennis and A1 were sufficient to give rise to the inference that they must have known of the material. Although A1 was not on trial, it was he, with A2, who first concocted the Africa checking story.
It is difficult to see, in the absence of evidence that Magennis participated in the program, how the evidence was capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceeding. The "issue" was said to be whether Magennis' participation in the Africa checking story was capable of amounting to consciousness of guilt that she had performed khatna on C1 and C2, as opposed to merely a symbolic procedure.
Whether A1 was aware of the program was not relevant to the guilt of the appellants. He was not on trial. In any event, again, there was no evidence that A1 was aware of this particular material. On the contrary, he gave evidence that he only became aware of such an education program as a result of these proceedings (T 1131-1132). There was no evidence that A1 communicated information obtained from the program to Magennis (or her co-accused).
We are not satisfied that the evidence was relevant to refute the evidence of Professor Grover. As his Honour noted in his judgment, both defence counsel at trial had expressly disavowed reliance on Professor Grover's observation that there was no evidence that female genital mutilation was happening in Australia (Judgment No 7 at [45]).
Finally, providing assistance to the jury by means of information regarding, at a general level, female genital mutilation in NSW does not, in our view, meet the requirement of rationally affecting, even indirectly, the assessment of a fact in issue in the proceedings.
It may be accepted that s 55 of the Evidence Act is to be given a wide interpretation and poses a relatively undemanding test (see, eg, R v SG at [29], [36]; Regina v Vinh Le at [19]). Nonetheless, the evidence sought to be adduced must have some minimum rational connection to the facts in issue (see, eg, Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 at [5] per Gleeson CJ, Heydon and Crennan JJ). The FGM community education program material, as admitted against Magennis and A2, does not meet that requirement. We therefore allow ground 8 in this respect.
Finally, it is necessary to consider whether his Honour erred in admitting, against Vaziri, the further evidence of Ms Strong and Ms George in relation to their visit to the mosque in September 2012. Given the timeline (in particular that there were a number of recorded conversations from September 2012 admitted against Vaziri), there is a window of time within which, as the Crown submits, that further evidence may be relevant to understanding what Vaziri says in recorded conversations and to considering the position he takes on female genital mutilation within the community in those conversations. That is, if the visit to the mosque had not occurred until October 2012, for example, it would be difficult to see how it had any relevance; as it is, dated by the witnesses as occurring at some point in September 2012, it has at least some rational connection to the facts in issue with respect to Vaziri. We therefore do not accept that his Honour erred in admitting that evidence.

[177]

Crown submissions

The Crown accepts that its case was that Magennis performed circumcision within the Dawoodi Bohra community in Sydney. The Crown submits that there was significant evidence which supported such a proposition, namely, that: Magennis was a very experienced nurse and midwife and as such had experience with surgical instruments and familiarity with the female genitalia; khatna meant female circumcision; Magennis had her own delivery bag which contained her instruments; and had this bag or a variation of it at the khatna procedures she performed on C1, C2 and her daughter, Fatima; Magennis was specifically asked by A2 to perform khatna on C1 and C2 on a number of occasions and eventually performed it; both C1 and C2 complained that the procedure performed on them caused pain in their genital region; Magennis performed khatna on her own daughter, Fatima, when she reached the relevant age; on a number of occasions Magennis was sought out specifically to perform khatna procedure on another Sydney girl, AK, and did eventually perform it; while she was living in the United Kingdom the Imam's wife requested that Magennis perform khatna on the daughters of the Dawoodi Bohra families who lived in England at the time; and that another woman within the community requested that Magennis perform khatna on her daughters, however because of Magennis' dislike for this woman she refused the request.
The Crown also submits that the recorded intercept material supports that submission, referring to the recorded conversations in: Ex AA tab 3 (see above at [50]-[55]), where Vaziri, with reference to Magennis, stated "that is to say that one might want to catch someone that who does it" (this, however, was not admitted against Magennis); Ex AA tab 5 (see above at [74]-[75]), where Magennis said that she "for many years, used to pay attention to a seven year old girl" (which the Crown says can only be a reference to Magennis' role in performing the traditional form of khatna); Ex AA tab 14 (see, relevantly, above at [90]), where Magennis agreed with her daughter who said it was not the first time "you have done"; Ex AA tab 20 (see above at [99]-[108]), where Magennis indicated that she had a particular method of performing khatna and was one hundred per cent confident that nothing would be seen on examination; and Ex AA tab 32, in another conversation with her daughter where Magennis stated that she was no longer going to perform khatna (see above at [124]).
The Crown thus submits that the submission that Magennis was the Dawoodi Bohra circumciser was thus well available on the evidence.
As to the appellants' contention that the term "circumcision" was inaccurate or unfair, the Crown maintains that this is not supported by the evidence of the interpreters (Mr Bhatt and Mr Panwala) who gave evidence as to the meaning of the words khatna and khatanat (as summarised earlier). The Crown also points to Dr X's evidence as to khatna being a particular form of circumcision practised by the Dawoodi Bohra community for some time, which involved injury to the clitoris area on female children normally in the age bracket of six or seven years old.
The Crown maintains that the only evidence of the "skin sniffing the steel" ceremony came from Magennis, whose credibility was compromised. Dr X said that she was not aware of any symbolic procedure being conducted within the community involving a "skin sniffing the steel ceremony", said by A2 and Vaziri in their adoption of the evidence of Magennis to have been the very procedure performed upon C1 and C2. The Crown points out that no evidence was led in the defence case about the asserted maladaptation of the word "circumcise" as a translation of "khatna", and notes that the appellants do not now suggest any more appropriate English translation.
The Crown maintains that the evidence clearly supported the use of the word "circumciser" to describe Magennis and did not invite tendency reasoning, as indicated by the failure of counsel at trial to make any such complaint.

[178]

Appellants' submissions

The appellants' second complaint is as to the Crown's submissions on the medical evidence; in particular, that despite the concession in the Crown's closing address as to the neutrality of Dr Marks' findings (that she could neither confirm or deny that this complainant had been subjected to female circumcision), the Crown invited the jury to treat the medical examinations of Dr Marks and Professor Jenkins as cogent evidence supporting a finding of guilt (see Crown's closing address, T 2242.36-2243). It is submitted that the evidentiary effect of the medical evidence was overstated.
The evidence of Dr Marks and Professor Jenkins has been summarised earlier. What was said by the Crown in closing submissions at the trial was (T 2163): So if you look at that finding in the context of all of the circumstances of this case, and the Crown submits that you are entitled to look at that possibility in the Crown's entire case, you might find, and it's, of course, entirely a matter for you, you might be very comfortable in coming to accept that the possible reason why she couldn't clearly visualise the clitoral glans was because in the context of this trial, in the context of all of the evidence that's been put before you, both direct and circumstantial, that you could comfortably come to the factual position that the clitoral head was not there because it had been removed.
At T 2243, the Crown made the same submission: This being a circumstantial case, members of the jury, you are entitled to look at all of the evidence and if you exclude labial adhesions and the lichen sclerosus [sic], that leaves only one alternative, being the tightness of the clitoral hood being the reason for not seeing the clitoral glans and you might think in the context of this case the reason why Dr Marks could not clearly visualise the clitoral glans of either girl was because, simply put, they were not there. That, of course, is entirely a matter for you, looking at all of the evidence the Crown has put before you in what the Crown says is both a case based on direct evidence and circumstantial evidence.

[182]

Crown submissions

The Crown contends that the submission that there was a shift in its case should be rejected. It points to the confirmation by the Crown prosecutor at an early stage of the proceedings that the Crown relied, at minimum, on a nick or cut having been occasioned to both C1 and C2 to prove mutilation for the purposes of s 45(1) of the Crimes Act. It is submitted that this was sufficient to establish mutilation and that the Crown did not need to rely on excision to establish mutilation for the purpose of the charge.
As to the appellants' submission (written submissions for A2 and Vaziri at [166]) that it was unfair for the Crown to rely on the same body of evidence for the jury to find either that a nick or cut had occurred or there had been an excision, the Crown submits that it was sufficient for the charge to be made out for the Crown to establish a nick or a cut; that this was the way the Crown ran its case from the outset when making submissions on the term "otherwise mutilates" and also when ultimately making submissions in its closing address; and that at no point did the Crown submit to the jury on excision alone.
As to the appellants' submission (written submissions for A2 and Vaziri at [165]) that the Crown told the jury that it was not necessary for the Crown to prove whether the nick or cut was to the clitoris or prepuce, the Crown notes that the jury were reminded that Dr X's evidence was that a bit of skin was excised, which was consistent with the complainants suffering from a cut or nick; and that Professor Jenkins' evidence was that if only a small area of tissue was excised there would not necessarily have been a scar. The Crown argues that reference to such an "excision" was consistent with the complainants being cut or nicked. The Crown notes that the Crown prosecutor did not argue that what happened to the complainants was identical to what Dr X experienced. It is said that the evidentiary limits of Dr X's evidence were explained by the Crown in closing and the trial judge in summing up.
It is submitted that it was open to the jury to find that circumcision occurs within the Dawoodi Bohra community, and that the nature and the extent of the injury depends on the particular circumciser's skill and the circumstances in which the procedure is performed. The Crown says that an obvious available inference is that an experienced nurse who is familiar with working with surgical instruments and who had access to such instruments may be able to cut more delicately than someone who did not have such experience or equipment.

[195]

Determination as to ground 9

As was properly conceded by Mr Dhanji, an assertion that a trial miscarried due to the closing address of the Crown prosecutor requires regard to be had to the address as a whole, rather than to isolated aspects of it.
The principles governing the conduct of closing addresses for the Crown were conveniently summarised by this Court in Hughes v The Queen (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [266]-[276], as follows: First, the Crown prosecutor has a special role that combines that of an advocate contending for a cause in adversarial proceedings with that of a Minister of Justice: see Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 at [54] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); and McCullough v The Queen (1982) 6 A Crim R 274 at 285. In that fundamental sense, the role of a Crown prosecutor is different from that of a counsel appearing for a plaintiff, who bears the onus of proof in civil proceedings, and from that of accused's counsel in criminal proceedings. Secondly, a Crown prosecutor should never use language designed or calculated to inflame the jury: see R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [24]. Thirdly, a Crown prosecutor should take special care not to use such language when the subject matter of a criminal trial has an inherent tendency to cause the jury to react emotionally to the evidence in the Crown case. Examples that spring readily to mind are trials of horrific murders and trials of allegations of child sexual assault, crimes for which the community reserves a special abhorrence. Fourthly, a Crown prosecutor is not prohibited from forcefully and firmly putting the prosecution case to the jury: see McCullough at 285; and R v Rugari (2001) 122 A Crim R 1; [2001] NSWCCA 64 at [52] (Carruthers AJ, with whom Spigelman CJ and Sperling J agreed). Nor is a Crown prosecutor prohibited from utilising rhetoric: see Libke v The Queen (2007) 230 CLR 559 at 600; [2007] HCA 30 (Heydon J). Nor is a Crown prosecutor prohibited from firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable. Fifthly, on the other hand, the Crown prosecutor must not belittle or ridicule either an accused person, or his or her evidence, or his or her case: see Livermore at [31]. Sixthly, a Crown prosecutor should especially eschew advocates' tricks designed to curry favour with the judge and especially with the jury, or to gain an ulterior advantage: see Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 at [605] (McClellan CJ at CL, with whom Lathan and Rothman JJ agreed). An example of what may be described as an advocate's trick (there are many, regrettably) is asking a question in the presence of the jury that one believes or knows will be the subject of a successful objection merely in order to force that response from one's opponent, and to cause the jury to reflect upon the subject matter of the question that will remain unanswered. Seventhly, the conduct of a Crown prosecutor in a criminal trial can of itself lead to a miscarriage of justice, that can found a successful appeal against conviction: see Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42 (Deane J). Eighthly, speaking generally, no advocate in criminal or civil proceedings should place his or her personal opinion before the tribunal of fact or law, because it is irrelevant: see KNP v R [2006] NSWCCA 213 at [53] (McClellan CJ at CL, with whom James and Hall JJ agreed); R v Liristis [2004] NSWCCA 287 at [95] (Kirby J, with whom Studdert J and Hislop JJ agreed); and Rugari at [60]. Ninthly, speaking generally, every advocate in criminal or civil proceedings is entitled to mount a firm attack on the evidence and submissions (with regard to matters of both fact and law) placed before the court by his or her opponent. Great care should be taken, however, to ensure that a personal attack is not made upon one's opponent himself or herself, unless there are very sound bases for doing so. Tenthly, the determination of grounds such as these is very much a matter of this court analysing exactly what was said or done, and considering it in the context of the entirety of the trial, including remedial steps (if any) taken by the presiding judge: see, for example, KNP.
With the exception of the complaint as to the alternative ways in which the Crown put its case, no issue was raised at trial about any of the matters of which complaint is made, and hence r 4 of the Criminal Appeal Rules again applies. For the reasons which follow, we are not satisfied that the appellants were denied a fair chance of acquittal by virtue of the closing address, and we would refuse to grant leave to rely on this ground of appeal.
Given that a number of discrete complaints were made regarding the closing address, consistently with how a similar ground was argued in this Court in Hughes v The Queen, we will address each complaint in turn.
The first complaint was that it was unnecessarily inflammatory for the Crown prosecutor to refer to the alleged process as a "circumcision" and to Magennis as "the local circumciser" and that there was no evidence that this was the case in any event. Although it is to be accepted that the evidence of the interpreters was somewhat unsatisfactory on the issue of the proper translation of khatna, it was the Crown case that khatna involved the cutting or nicking in some way of the child's clitoris. In this sense, we do not consider it to be inappropriate for someone who performs the procedure of khatna, which on the Crown case Magennis did, to be described as a circumciser rather than a performer of khatna, nor for the procedure to be described as circumcision. It was accepted by Mr Dhanji that there would have been no complaint if Magennis had been described as a "khatna performer".
As for the secondary part of this complaint regarding the lack of an evidentiary basis for such a description, we are satisfied that there was a sufficient evidentiary basis to make such a submission, given the evidence summarised by the Crown above at [1097]-[1098].
As for the complaint that the evidentiary effect of the medical evidence was overstated, it is to be noted, as we have stated above (see at [1108]), that this complaint is now largely superseded by the finding in relation to the new evidence (ground 11).
The appellants further complain: that there was a failure by the Crown to particularise the precise nature of the alleged injury to the clitoris; that there was a shift in the Crown case relating to the nature of the injury; and that the trial judge's directions failed to cure the prejudice and may have served to reinforce in the jury's mind that an excision case was open or that, while the Crown was not required to prove excision to establish guilt, evidence that was available to prove an excision was also available to prove a 'nick or cut'. The trial judge's directions were based on his Honour's conclusions as to the statutory construction of s 45 of the Crimes Act; as we have allowed the appeal on ground 1, these complaints are also largely superseded by that conclusion.
As to the complaint relating to the Crown submissions on possible motives for carrying out the procedure, we accept that evidence of the reason why khatna was performed was relevant to rebut the defence suggestion that what happened was a symbolic procedure that did not involve cutting. The Crown address in this respect was not unnecessarily inflammatory; it was open to the Crown to examine, as part of the circumstantial case, to make submissions based on the evidence as to the purpose for which khatna was traditionally performed.
As to the Crown's characterisation of the defence case as "bizarre", in our view the Crown's language fell within the bounds of forcefully and firmly putting the prosecution case to the jury. The Crown was entitled to mount a firm attack on the appellants' evidence. The use of the term "bizarre" was open to the Crown in circumstances where Magennis had accepted in her evidence the proposition that the "skin sniffing the steel" ceremony was "bizarre".
In relation to C2's evidence, the Crown prosecutor's address made clear, in our view, that the treatment of C2's evidence was a matter for the jury, and did not rise to the level of implying that the Crown prosecutor was making some kind of expert assessment of C2's capacities.
We are also not persuaded that the Crown prosecutor's comments in relation to the FGM community education program created any risk of the jury arriving at the oversimplified conclusion that because the appellants were members of the Dawoodi Bohra community they were therefore guilty of the primary counts charged. The submissions on this material may be accepted to have distracted from the real issues at trial, but in our view they did not occasion a miscarriage of justice.

[197]

Appellants' submissions

The appellants submit that his Honour's summing up did not sufficiently balance the respective cases for the prosecution and appellants, the result of which was a miscarriage of justice. In particular, it is submitted that there was undue emphasis on the Crown case as part of the explanation of various legal principles (by reference to the provision by his Honour of examples of inferential reasoning, admissions and confessions, and lies - see Mr Dhanji's written submissions at [216]-[239]); that there was widespread integration of the Crown submissions within his Honour's summary of the evidence (see Mr Dhanji's written submissions at [240]-[265]); and that the defence case was not fairly summarised (see Mr Dhanji's written submissions at [266]-[279]). The appellants complain that the widespread integration of Crown submissions into the summary of the evidence and legal directions created a real danger that the Crown's position concerning the evidence would dominate the summing up.
As to the explanantion of legal principles, the complaint is that, in providing examples, there was a disproportionate emphasis on key Crown arguments. In this regard, reference is made to his Honour's discretions as to: the roles of judge and jury; inferential reasoning; alleged admissions (or confessions) in the electronic evidence; and as to lies and consciousness of guilt.
As to his Honour's summary of the evidence in the case, the complaint is that, in relation to a range of factual issues, his Honour repeatedly referred in great detail to the Crown submission on the issue whilst often making only brief reference to the defence submission. For example, in relation to the evidence of Dr X, an important Crown witness, the appellants submit that his Honour provided "a quite detailed outline" of that evidence (Mr Dhanji's written submissions at [253]) and described the Crown submissions at a "level of detail" (submissions at [257]); yet his Honour's summation of the defence arguments "was limited to the non-descript statements" that "her evidence was under challenge 'in a number of respects' and that 'a number of submissions' had been made by defence counsel about her evidence" (Mr Dhanji's written submissions at [257], referring to SU 81.9; 83.3).
As to the submission that his Honour failed properly to summarise the defence case (in his summing up at SU 112-119), the appellants point to the detailed analysis by the defence of the medical evidence and its submission that the medical evidence failed to support the contention that the complainants had been subjected to a nick or a cut (see SU 102-103; 104; 108.5; 108.9).

[198]

Crown submissions

As to the first of the directions about which the appellants complain (the role of the judge and jury), what his Honour said was (at SU 7): By way of contrast however, your task and responsibility lies in determining the facts of the case. You must decide the outcome of the trial by the application of the law as I state it, to the facts as you find them. The function of determining the facts is for you and you alone. In performing my role, I will necessarily refer in the summing-up to some parts of the evidence. I should observe, however, that in this regard you should not think that because I refer to some parts of the evidence and not to other parts, that you should necessarily confine your attention to the evidence to which I refer. That would be wrong. Likewise, if I fail to refer to evidence that you regard as significant or important, you must act on your own view and give the material the weight you think it deserves. If you think that something that I mention has a bearing on the factual issues, or if you do not think it has much bearing on those factual issues, you are entitled to weigh up the evidence in the way you see fit. You are not obliged to accept anything that I might say, except of course, on questions of law where my directions bind you.
The Crown notes that failure to direct in accordance with the standard Bench Book does not constitute error (referring to FH v R [2014] NSWCCA 231 at [60]). In any event, the Crown contends that his Honour's preliminary direction made it clear to the jury that they were the sole judges of facts and this was the function of the jury not the trial judge, and emphasised to the jury that they were not obliged to accept what he said, other than on a question of law.
As to the complaint made of inferential reasoning (Mr Dhanji's written submissions at [221]-[223]), the Crown says that his Honour was required to sum up on evidence and principles that were complex and would not have been within the common knowledge of the lay persons on the jury and notes that no complaint is made about the explanation of inferential reasoning given by the trial judge. His Honour gave a number of hypothetical examples of inferential reasoning (at SU 36-37), before turning to some of the specific matters relied upon in the Crown case (at SU 38-39). The Crown notes that after giving each example his Honour immediately reminded the jury of the relevant defence submission (see SU 38-39).
The Crown submits that it was not unfair or inappropriate for the trial judge to use some of the inferences relied on by the Crown as a way of illustrating the way in which inferential reasoning worked and says that this was properly balanced by an immediate recitation of the defence submission on the issue.
As to the explanation given of the alleged admissions or confessions (Mr Dhanji's written submissions at [224]-[237]), the Crown submits that there was no unfairness in his Honour's explanation of admissions and the way in which they should be approached by the jury.
The Crown says that in the context of this trial, where the Crown case was heavily reliant on telephone intercept and listening device material, it was appropriate that the trial judge explain the concept of admissions by using examples in the trial advanced by the Crown. The Crown says that it was incumbent upon the trial judge to explain the way in which the jury could and could not approach the evidence by reference to the issues at trial; and that the trial judge also clearly put the defence submission (see SU 49 and 50).
As to the complaint made by the appellants of the way in which his Honour explained the concept of post-offence conduct and consciousness of guilt in relation to the Africa checking story (Mr Dhanji's written submissions at [238]-[239]), the Crown says that it is difficult to conceive of a way in which his Honour could properly have directed the jury on lies without identifying them and the way in which the Crown sought to rely upon them; and notes that this is a requirement of a properly expressed direction on consciousness of guilt.
In response to the complaint made as to the integration of Crown submissions within his Honour's summing up of the evidence (Mr Dhanji's written submissions at [240]-[265]), the Crown notes that the trial judge reviewed the evidence heard during the trial and in so doing his Honour referred (at SU 104 and following) both to some of the Crown submissions and to some of those of defence counsel. The Crown accepts that the appellants complain that the trial judge did not repeat the entire submissions of the defence, but says that neither did his Honour do so with respect to the Crown submissions.
The Crown notes that the Crown's closing address spanned five days (in which the jury was taken for the first time through the listening device and telephone intercept material in detail) and that the appellants' closing addresses were relatively brief and did not address all of the matters raised by the Crown. The Crown says that the inevitable consequence of this was that more time was required to be spent by the trial judge summarising the Crown's submissions and that this is not indicative of a lack of balance (referring to Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [105]-[106]; R v Meher [2004] NSWCCA 355 at [86]; R v Lars (aka Larsson) (1994) 73 A Crim R 91).
In relation to the defence submission that the term "cut" or "cutting" was used first by the police, the Crown notes that his Honour made the point that the defence position was that the phrase had been used first by the police and then reminded the jury of the Crown submissions (contrary to Mr Dhanji's written submissions at [242]).
The Crown says that his Honour was correct when he told the jury that the evidence of the police witnesses (topic 22 referred to in the summing up) was not controversial. The Crown notes that there was no real challenge to the evidence of the police witnesses called by the Crown for the purpose of tendering material (except for parts of Detective Sergeant Stek's evidence in the cross-examination by counsel for Magennis).
As to the topic "The FGM education witnesses", the Crown contends that the evidence adduced by the Crown was not the subject of any challenge; rather, the issue of importance in relation to this evidence was whether A1, Magennis and Vaziri were aware of the illegality of female genital mutilation. The Crown notes that in summing up his Honour said (SU 78): The Crown submitted to you that she was a nurse and a midwife. The Crown cannot point to any evidence of her attending a seminar or a session, but it is submitted that information of this sort would have permeated through to those parts of the health profession, including nursing and midwifery. It is a matter for you ladies and gentlemen, to make an assessment of that submission.
It is submitted that in his summary of the evidence on this topic the trial judge referred to the essence of the submissions of both the Crown and defence.
As to the interpreter witnesses, the Crown says that there was no real controversy between the parties at the trial; that Mr Bhatt and Mr Panwalla explained that khatna meant either male or female circumcision; and that this was the literal translation of khatna. The Crown notes that in the defence closing submissions for Magennis very little time was devoted to this issue. The Crown says what when addressing the jury on the interpreters' evidence there was no occasion for his Honour to address the defence submission that khatna meant a symbolic ceremony, because this was not their evidence. The Crown says that the appellants' complaint (see Mr Dhanji's written submissions at [246]-[247]) in this regard is one of semantics (and that the complaint at [248] is directed at admissibility rather than the ground of appeal raised by ground 10). The Crown notes that neither matter was raised by defence counsel in closing and no redirection on these issues was sought.
As to the summary of Dr X's evidence, the Crown notes that his Honour reminded the jury that she was like any other witness, who they were to assess as his Honour had described earlier (i.e., it was a matter for the jury to accept or reject all or parts of her evidence). The Crown notes that his Honour reminded the jury that defence counsel made a number of submissions to them and later, reminding the jury that it was a matter for them as to what use they would make of the evidence of Dr X, said (at SU 81): Look at, consider and assess the factual matters underlying her opinions, her own experience, both with respect to the procedure carried out on her, but more generally, her involvement in the Dawoodi Bohra community in India, and then the research which she carried out. That research, of course, has been challenged, both as to methodology, and as to issues such as peer review of the publication. It is of course, a single article in a journal, but it is an article which the Crown says bears directly upon the subject matter of this trial.
It is submitted that it was appropriate and necessary for the trial judge to summarise the evidence of Dr X and to explain the way the Crown relied upon that evidence and that the trial judge's approach in this instance was fair and balanced.
As to the reading out by the trial Judge of parts of some of the recorded calls, the Crown says that this approach assisted in reminding the jury that what was said was not a matter of real challenge but that what was really in issue was how the calls should be interpreted. The Crown notes that counsel for Magennis made some submissions about this in his closing address in support of the ritualistic nature of khatna but that counsel for A2 and Vaziri made hardly any reference to this body of evidence. No reference was made in the defence submissions to the electronic evidence. The Crown says that in any event, the trial judge reminded the jury of defence submissions at various stages of the summary. Within that, his Honour reminded the jury of which calls were admissible against which appellant and whether the calls were relied on as admissions and the use to be made, if any, of the calls by the Crown. It is submitted that by this stage his Honour had explained admissions, inferential reasoning, and repeated numerous times in his summing up that such findings were a matter for the jury.
The Crown notes that, though invited to raise anything in the absence of the jury as to the summing up to that point, neither of the defence counsel raised any complaint. The Crown argues that this indicates that the impression left by his Honour's approach at that point was not one of an unfair or unbalanced summing up.
As to the submission that his Honour failed properly to summarise the defence case, the Crown notes that (at SU 112-119), his Honour: summarised the parties' submissions; reminded the jury that the defence had advanced a number of criticisms of Dr Marks including that it was the defence submission that Professor Grover was in a position to express opinions about scarring, bleeding, pain and healing; and reminded the jury that the defence position was that there was a reasonable possibility that what occurred was a form of ceremonial khatna.
It is submitted that his Honour dedicated considerable time to reminding the jury of the way in which the evidence given by Magennis could and could not be used, that no adverse inference was to be made against A2 and Vaziri because they had not given evidence, and as to the ways in which good character could be used. When directing the jury on good character, his Honour stated that the Crown position was that good character was impacted by the Africa checking story but reminded the jury that ultimately it was a matter for their own judgment and that if they found that the appellants were of good character that could be used when considering the likelihood of them committing the relevant offences.
The Crown notes that his Honour also spent time when summarising the defence submissions in going through the submissions made on behalf of Magennis. In particular, his Honour reminded the jury that they should have regard to the evidence of Magennis; that appropriate weight should be given to her prior good character; that she had memory issues; the difficulties facing a witness giving evidence; and that her account supported a reasonable hypothesis consistent with innocence, namely that what was conducted on the complainants was khatna of a symbolic nature.
The Crown notes that the matters now complained of were not the subject of criticism at trial and so r 4 of the Criminal Appeal Rules applies and that experienced trial counsel, both senior and junior, made no complaint in the terms now raised. The Crown submits that when the summing up is read as a whole, the impression is not one of imbalance or unfairness; and that the failure to seek a redirection to complain of any of these matters gives rise to a strong presumption that the summing up was not unfair. The Crown submits that leave to raise this ground of appeal should be refused, or that alternatively the ground should be dismissed.

[199]

Determination as to ground 10

The appellants submit that his Honour's summing up did not sufficiently balance the respective cases for the prosecution and appellants, the result of which was a miscarriage of justice.
Since argument was heard in this appeal, two decisions of this court have considered the question of unbalanced summings up.
In McKell v R [2017] NSWCCA 291, the appellant contended that a miscarriage of justice was occasioned by the trial judge's unbalanced summing up. It was submitted that this was the result of the cumulative effect of a number of individual passages in the summing up. It was contended that the trial judge implicated the appellant in an importation of drugs in the first consignment; raised arguments beyond those relied upon by the Crown; and conveyed to the jury that the trial judge considered the appellant was knowingly involved in the importations by comments that his Honour made during the summing up. In the majority, Payne JA and Fagan J held that the trial judge's summing up was not unfairly lacking in balance and did not cause any miscarriage of justice. Beech-Jones J dissented, observing at [103]: One component of the fair trial to which the appellant was entitled was a summing up by the trial judge which put his case and the prosecution case "accurately and fairly" to the jury (Domican v The Queen (1991-1992) 173 CLR 555 at 561; Broadhurst v The Queen [1964] AC 441 at 464). The summing up is the last substantive discussion of the issues in the trial that the jury hears before they retire to consider their verdict. However, as explained below, instead of a delivering [sic] an accurate and fair summing up, the trial judge in this case made an address to the jury the substantive parts of which were a sustained attempt to persuade them of the appellant's guilt. This rendered his trial unfair. A miscarriage of justice was occasioned.
It is to be noted that the complaints in the present matter are in a very different category to those considered in McKell v R. It is not suggested that the trial judge expressed any opinion or attempted to persuade the jury of the appellants' guilt. Rather, the complaint in the present matter is similar to the complaint made in the more recent decision of this Court in Odisho v R [2018] NSWCCA 19. The complaint in that matter, which was raised by defence counsel at the conclusion of the summing up, was that the trial judge had not separately summarised the defence case as a separate case to the Crown case. On appeal the complaint was made that, even after a request was made to do so, the defence case was not summed up to the jury in a "complete and credible manner" and the summary of the defence submissions was both lacking in detail, and expressed in limited and simplistic terms.
In Odisho v R, a majority of this Court (Bellew J, with whom Price J agreed) dismissed this ground of appeal. In doing so, Bellew J helpfully summarised the relevant principles governing the obligations of a trial judge when summing up to a jury, at [97]-[104] as follows: Firstly, and fundamentally, a trial judge is required to put the defence case fairly [citing RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [41]]. Failure to do so will constitute a miscarriage of justice [R v Schmahl [1965] VR 745 at 748]. Secondly, the weaker the defence, the more essential it is for that defence to be put to the jury so that it can be considered in light of the Crown case, and evaluated as part of the overall determination of whether or not the Crown has discharged its onus of proof [R v Tomazos (Court of Criminal Appeal (NSW)), 6 August 1971, unreported]. Thirdly, how a trial judge structures a summing-up, and the extent to which he or she reminds the jury of the evidence, are matters for individual judgment. That judgment is to be exercised according to a number of factors, including the complexity of the issues, the length of the trial and the conduct of the respective cases by the parties [Castle v R; Bucca v R (2016) 259 CLR 449; [2016] HCA 46 at [51]]. Fourthly, whilst it is the function of an appellate court to review and safeguard the fairness, balance and impartiality of a summing-up, that exercise is not conducted by reference to the length of time which was devoted to the Crown case on the one hand, or the defence case on the other [Golossian v R [2013] NSWCCA 311 at [91]; R v Inamata [2003] NSWCCA 19; (2003) 137 A Crim R 510 at [29]; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 56]. Fifthly, just as the question of whether a party's position has been adequately put to the jury is not measured by the length of time devoted to that position or the number of words spoken, it is similarly not measured by direct comparison with the attention given by the trial judge to the case brought by the opposing party. This is particularly the case in criminal proceedings because the Crown case will, generally speaking, constitute the vast majority (and sometimes the whole) of the evidence, such that more often than not, more time will need to be spent on summarising it [Aravenaq v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 ("Aravena") at [105]-[106]; R v Meher [2004] NSWCCA 355 at [86]]. Sixthly, when one case is strong and the other case is weak, it does not follow that a balanced summing will be achieved by under-weighting in the strong case, and over-weighting in the weak case. A balanced account will inevitably reflect the strength of the one, and the weakness of the other [R v Ali (1981) 6 A Crim R 161 at 165]. Seventhly, the law does not mandate that a trial judge "compartmentalise" the summing-up by separately identifying and summarising the defence case. On occasions, the most effective way for the trial judge to fairly put the defence case to the jury is in the course of summarising the issues for their determination [AP v R [2013] NSWCCA 189 at [24]]. Finally, the ultimate question is whether the trial judge has put the case for the accused in such a way as to allow the jury to properly consider the issues raised on the accused's behalf [Aravena at [109]]. It follows that in determining whether a complaint that a summing-up was unbalanced is made out, it is necessary to view the summing-up as a whole, and not in a piecemeal way. The ultimate question is whether the trial judge put the case for the appellant in such a way as to allow the jury to properly consider the issues raised on his behalf.
We have set out the individual complaints and the Crown response to each of them above. Although a large number of separate complaints are made under this ground, the nub of the complaint is that the real issues in the case did not emerge from his Honour's summing up and that disproportionate time and emphasis was placed on the Crown case, such that the summing up was unbalanced and a miscarriage of justice resulted.
It is significant to note that, unlike in McKell v R and Odisho v R, no complaint was made about any of these issues during or at the end of the summing up, despite being invited to do so in the absence of the jury. It is to be inferred that defence counsel were not left with the impression at that time that the summing up was unfair or unbalanced.
Having carefully examined his Honour's summing up overall and applied the principles extracted above from Odisho v R, we are not satisfied that this ground has been established. In circumstances where this ground of appeal could only have been relevant to whether a new trial should be ordered, we do not consider it necessary to address each of the particular complaints individually in our consideration of this ground.
There were a number of issues in this trial of some complexity. We are not satisfied that the degree of integration of the Crown submissions into his Honour's summary of the evidence, nor the references to some of the Crown arguments when explaining the legal principles, created any unfairness in this matter. It is to be accepted that his Honour did spend some considerable time summarising the evidence of Dr X and that we have already concluded under ground 3 that some of that evidence should not have been admitted. However, even taking this into account, when the summing up is examined as a whole we are not persuaded that it was unbalanced or resulted in a miscarriage of justice. We would dismiss this ground of appeal; and in any event, applying the principles earlier outlined with respect to r 4 of the Criminal Appeal Rules, we would not grant leave to rely upon it.

[202]

Judgment No 24

Between the first sentencing judgment and the second, the 53rd Dai al-Mutlaq (the worldwide religious leader of the Dawoodi Bohra community) gave a sermon in India during which he stated that the khatna procedure must continue on women in a discreet way. This sermon received considerable media attention which his Honour detailed in Judgment No 24 (at [52]-[57]).
His Honour also had regard to evidence tendered by Vaziri from Dr Mustafa Ebrahim Abdulhussein (at [62]). This evidence included the fact that, until the conviction of the applicant and his co-offenders, the community was not of the view that khatna was illegal and that, in the same sermon, the 53rd Dai al-Mutlaq had stated the importance of abiding by the law of the lands in which each community lives (at [62]-[63]).
With respect to this evidence his Honour stated (at [68]-[69]): These recent developments must be considered in light of the assumption which I was prepared to make in R v A2; R v Magennis; R v Vaziri (No. 23) at [141] (see [44] above). The evidence now explains the need for laws in individual jurisdictions which prohibit FGM expressly, otherwise members of the Dawoodi Bohra community will be expected to comply with the religious requirement favouring the performance of "khatna" on young girls. The principle of general deterrence extends not just to members of the Dawoodi Bohra community who may be minded to practice "khatna", but to other communities in New South Wales who may undertake FGM.
His Honour reiterated (at [70]-[71]) what he had said at Judgment No 23 (at [214]) with respect to the significant increase in the maximum penalty for offences against s 45 of the Crimes Act and its effect on the role of general deterrence in the sentencing of A2 and Magennis.
With respect to Vaziri, his Honour stated (at [72]-[73]): However, the maximum penalty applicable to the Offender Vaziri, as an accessory after the fact to the s.45 offences, is imprisonment for five years: s.350 Crimes Act 1900. The increase in the maximum penalty for s.45 offences does not apply to the position of persons who are accessories after the fact to those offences. The maximum penalty under s.350 remains as it was, at the time of these offences, at imprisonment for five years. Accordingly, general deterrence continues to have particular application to the sentencing of the Offender Vaziri, above and beyond its role in the sentencing of the Offender A2 and the Offender Magennis.
His Honour noted that, given the nature of khatna, (male) religious leaders such as the applicant would only become criminally involved as accessories after the fact. Such persons would also continue to be liable to a maximum penalty of 5 years' imprisonment.
His Honour also placed weight on the tension that remained within the community regarding the "need" to practise khatna and stated (at [81]): Members of the Dawoodi Bohra community should be entitled to turn to their religious leaders for clear and decisive statements condemning the practice of "khatna" upon young girls, and this should have been the position in 2012 when the Offender Vaziri committed these serious offences. General deterrence continues to have a particular application to the sentencing of the Offender Vaziri.
His Honour also distinguished Vaziri's offending from the more common accessorial offences which are committed by "misguided relative[s] of the principal offender… presented with an unexpected state of affairs giving rise to an emotional response"; and emphasised that Vaziri acted in a calculated and deliberate way over a period of weeks (at [104]).
At [114]-[117], his Honour held: For reasons expressed earlier (at [65]-[81]), I consider that general deterrence is a greater factor on sentence in the case of the Offender Vaziri than of the other Offenders. The increase in the maximum penalty for s.45 offences can have a limited effect only in sentencing an accessory after the fact to a s.45 offence. The maximum penalty under s.350 Crimes Act 1900 remains at five years' imprisonment. Further, I accept that a strong message should be sent to male Dawoodi Bohra religious leaders that criminal acts such as those committed by the Offender Vaziri, for the purpose of covering up the performance of "khatna" and deflecting a police investigation of FGM offences, ought be met by sentences of full-time imprisonment. The same strong message should be sent to leaders of other communities where FGM is practised that if they become liable as accessories after the fact to s.45 offences by way of covering up and deflecting police investigations, they too will be met by stern punishment. It is the religious leaders within the Dawoodi Bohra community who should be urging their followers to discard the practice of "khatna" and to act in a manner which supports this approach. In the case of the Offender Vaziri, his actions were the opposite to this approach. His words expressed in the unsworn and untested letter of 4 February 2016 (see [107] above), prepared after trial, indicate a luke-warm attitude which does not support a conclusion that the Offender Vaziri himself will urge others to discard the practice of "khatna" now and in the future. Having considered the objective and subjective factors relating to the Offender Vaziri's offences and applicable sentencing principles, I am not satisfied that the term of imprisonment which I have fixed, if served by way of home detention, is appropriate. It would not reflect the criminality of the conduct in the circumstances of the case and having regard to all relevant considerations.

[203]

Challenge to sentence

Vaziri seeks leave to appeal against the severity of his sentence on the basis of a justifiable sense of grievance as a result of the sentences imposed on the co-offenders A2 and Magennis, referring to the principle of parity as articulated by the High Court in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ.
Vaziri argues that the reasons given by his Honour for sentencing him (an accessory after the fact) more severely than the principal offenders cannot justify the outcome, submitting that it will be an "unusual case" in which this occurs and that, in this case, it was not justified by the factual matters to which his Honour referred.
The Crown notes that the three offenders were sentenced by the same judge at the same time and points to what was said in Tuivaga v R [2015] NSWCCA 145 by the presiding judge in the present appeal (Hoeben CJ at CL) at [55]-[56] (RA Hulme and Wilson JJ agreeing): It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be "gross, marked or glaring" (Tan v R [2014] NSWCCA 96 at [39]).
The Crown submits that it was open to the trial judge to find that general deterrence, and to some extent personal deterrence, had a particular role to play in the case of Vaziri.
It is submitted that his Honour was mindful of the parity principles and took care to assess the specific differences in culpability and subjective circumstances of each participant; that his Honour appropriately differentiated the sentences imposed on Vaziri and his co-offenders allowing for such differences whilst imposing sentences reflective of the purposes of punishment.
The Crown thus argues that Vaziri has failed to demonstrate a gross, marked or glaring disparity that would give rise to a justifiable sense of grievance so as to attract appellate intervention.

Legislation Cited (17)

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

Crimes Amendment (Female Genital Mutilation) Act 2014(NSW)

Evidence (Children) Act 1997(NSW)

Evidence Amendment Act 2008(Cth)

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

(the Evidence Amendment Act 2008(Cth)

Australian Securities and Investments Commission Act 2001(Cth)

Children (Criminal Proceedings) Act 1987(NSW)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Criminal Procedure Act 1986(NSW)

Evidence Act 1995(Cth)

Evidence Act 1995(NSW)

Evidence Act 2008(Vic)

Evidence Act 2011(ACT)

Interpretation Act 1987(NSW)

Acts Interpretation Act 1901(Cth)

Cases Cited (240)

CRIME - sentencing appeal - appellant Vaziri appeals sentence - parity principle - not necessary to determine Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 67 Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW) Crimes Act 1900 (NSW), ss 45, 45A, 59, 306B(1), 315A, 322, 326, 545B Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW) Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 7(2), 8 Criminal Appeal Rules (NSW), r 4 Criminal Code 1995 (Cth), s 268.47 Criminal Procedure Act 1986 (NSW), ss 306M, 306O, 306S, 306U, 306V, 306X, 306Y(2) Evidence (Children) Act 1997 (NSW), s 9 Evidence Act 1995 (Cth), s 13(1) Evidence Act 1995 (NSW), ss 12(a), 13, 18, 21(1), 26, 31, 37, 38, 42, 55, 56, 79, 97, 98, 135, 137, 165A, 192, 192A Evidence Act 2008 (Vic), s 13(1) Evidence Act 2011 (ACT), s 13 Evidence Amendment Act 2008 (Cth) Interpretation Act 1987 (NSW), ss 33, 34, 35 Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 AL v Regina [2017] NSWCCA 34 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 Amaca Pty Ltd v Novek [2009] NSWCA 50; (2009) Aust Torts Reports 82-001 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 ARS v R [2011] NSWCCA 266 ASIC v Rich [2006] NSWSC 243; (2006) 201 FLR 207 Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 Australia and New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 B and G (Children) (No 2) v Leeds City Council [2015] EWFC 3 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 Bell v Regina [2017] NSWCCA 207 Brown v R [2006] NSWCCA 69 Browne v Dunn (1893) 6 R 67 Buggy v Reinisch [2010] FCA 917 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; [1995] HCA 44 Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 Cozens v Brutus [1973] AC 854 Crowe v Graham (1968) 121 CLR 375; [1968] HCA 6 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Davies v The King (1937) 57 CLR 170; [1937] HCA 27 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152 Deutscher v The State of Nevada (1979) 601 P 2d 407 DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 FH v R [2014] NSWCCA 231 Flood-Smith v R [2018] NSWCCA 103 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70; [1946] HCA 13 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Grindrod v R [1999] WASCA 44 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 Hawker v The Queen [2012] VSCA 219 Hill v R [2017] NSWCCA 136 Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hughes v The Queen (2015) 93 NSWLR 474; [2015] NSWCCA 330 Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 Hunter Resources Ltd v Melville (1988) 164 CLR 234; [1988] HCA 5 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Lee v R (1998) 195 CLR 594; [1998] HCA 60 Luke v Inland Revenue Commissioners [1963] AC 557 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacAlister v The Queen (1990) 169 CLR 324; [1990] HCA 15 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Manly Council v Malouf t/as Fusion Point (2004) 61 NSWLR 394; [2004] NSWCA 299 Martin v R (2013) 46 VR 537; [2013] VSCA 377 McKell v R [2017] NSWCCA 291 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 MK v R [2014] NSWCCA 274 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 Mulvihill v R [2016] NSWCCA 259 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53 Odisho v R [2018] NSWCCA 19 Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 Pease v R [2009] NSWCCA 136 People v Bullington (1938) 27 Cal App 2d 396 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Purdon v Dittmar [1972] 1 NSWLR 94 R v A2; R v KM; R v Vaziri (No. 11) [2015] NSWSC 1541 R v A2; R v KM; R v Vaziri (No. 18) [2015] NSWSC 1625 R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 R v A2; R v KM; R v Vaziri (No. 20) [2016] NSWSC 23 R v A2; R v KM; R v Vaziri (No. 21) [2016] NSWSC 24 R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264 R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306 R v A2; R v KM; R v Vaziri (No. 9) [2015] NSWSC 1491 R v A2; R v Magennis; R v Vaziri (No. 15) [2015] NSWSC 1545 R v A2; R v Magennis; R v Vaziri (No. 23) [2016] NSWSC 282 R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427 R v Al-Harazi (No 6) [2017] ACTSC 63 R v Aubrey (2012) 82 NSWLR 748; [2012] NSWCCA 254 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Climas (1999) 74 SASR 411; [1999] SASC 457 R v Gale [2012] NSWCCA 174; (2012) 217 A Crim R 487 R v Knigge (2003) 6 VR 181; [2003] VSCA 94 R v Lars (aka Larsson) (1994) 73 A Crim R 91 R v Mantonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 R v Meher [2004] NSWCCA 355 R v MR [2013] NSWCCA 236 R v NRC [1999] 3 VR 537; [1999] VSCA 184 R v Peters [1886] 16 QBD 636 R v Qaumi (No 39) [2016] NSWSC 797 R v RAG [2006] NSWCCA 343 R v SG [2017] NSWCCA 202 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 R v Sieders (2008) 72 NSWLR 417; [2008] NSWCCA 187 R v Vaziri [2016] NSWSC 1283 R v Xie (No 13) [2015] NSWSC 2125 R v XY (2013) 84 NSWLR 363; [2013] NSWCA 121 RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221 Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318; [2012] NSWCA 296 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326 Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 Re JC [2010] ACTSC 134 Regina v Vinh Le [2000] NSWCCA 49 RH v R [2014] NSWCCA 71; (2014) 241 A Crim R 1 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Scott v Cawsey (1907) 5 CLR 132; [1907] HCA 80 Selby v R [2017] NSWCCA 40 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 SLJ v R (2013) 39 VR 514; [2013] VSCA 193 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300 State of Arizona v Michael Joe Murdaugh (2004) 97 P 3d 844 Sutton v R (2015) 47 VR 496; [2015] VSCA 25 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Taufahema v The Queen (2007) 228 CLR 232; [2007] HCA 11 Tekely v R [2007] NSWCCA 75 The King v Adams (1935) 53 CLR 563; [1935] HCA 62 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 Tikomaimaleya v R (2017) 95 NSWLR 315; [2017] NSWCCA 214 Tuite v R (2015) 49 VR 196; [2015] VSCA 148 Tuivaga v R [2015] NSWCCA 145 Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 Ward v The Queen [2017] VSCA 37 Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 Texts Cited: Attorney-General's Department (Cth), Review of Australia's Female Genital Mutilation Legal Framework: Final Report (March 2013) Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) Australian Oxford Dictionary (1999) Bill Hughes, 'Female Genital Mutilation: The Complementary Roles of Education and Legislation in Combating the Practice in Australia' (1995) 3(2) Journal of Law and Medicine 202 D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) Family Law Council, Female Genital Mutilation: A Report to the Attorney-General (June 1994) J D Heydon, Cross on Evidence (10th Australian ed, 2015, LexisNexis Butterworths) Judicial Commission of NSW, Criminal Trial Courts Bench Book (2017) Macquarie Dictionary (6th ed, 2013) Macquarie Dictionary (online ed) Oxford English Dictionary (online ed) Stephen Odgers, Uniform Evidence Law (13th ed, 2018, Thomson Reuters) World Health Organization, Eliminating Female Genital Mutilation: An Inter-Agency Statement (2008) Category: Principal judgment Parties: 2012/280081 A2 (Appellant) Regina (Respondent)

Cited By (15)

A2 v R; Magennis v R; Vaziri v R

Addo v R

Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi

BDS17 v Minister for Immigration and Border Protection

Director of Public Prosecutions (NSW) v Banks