A2 v R; Magennis v R; Vaziri v R

Background

1. The background to the matter is set out in this Court's earlier reasons and need not here be repeated. Leaving aside the ground of appeal which, on the proper construction of s 45(1)(a) of the Crimes Act, should not have been upheld (ground 1), and the unreasonable verdicts ground, which has now been abandoned (ground 2), the appellants have succeeded in this Court on four grounds of appeal. These are: ground 3 (as to evidence from Dr X as to the static nature of the khatna procedure; that it is not a ritualistic procedure; as to the reasons for the procedure; and as to what part of the genital area was involved in the procedure) (see Magennis at [725]); ground 4(a) as to C2's competence to give evidence (see Magennis at [850]; [881]); ground 8, as to whether the material relating to the FGM community education programme was relevant and therefore admissible under ss 55 and 56 of the Evidence Act 1995 (NSW) (see Magennis at [1090]); and ground 11, the miscarriage of justice ground which related to the new evidence available to the appellants which established that there had ben no removal of the tip of the clitoris or clitoral glans from either complainant (see Magennis at [358]).
2. As to the particular evidence of Dr X referred to above, we considered that evidence as to those matters should have been excluded even though relevant and even if (contrary to our conclusion in this regard) it was specialised knowledge, because the probative value of that evidence (being no more than subjective opinion and/or supposition or speculation) did not outweigh the potential prejudicial effect of such evidence.
3. As to ground 4(a), we noted that, despite the fact that we were not satisfied that other sub-grounds had been made out (grounds 4(b), (c), (d), and (e)), we had determined those sub-grounds in the context of the evidence that was before the trial judge. We 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.
4. As to ground [8], we were not satisfied that the material relating to the FGM community education programme was relevant (for the reasons set out at [1083]-[1090] of Magennis). In the absence of evidence that Magennis participated in the programme, the evidence was not capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceedings. We concluded that it should not have been admitted into evidence.
5. As to ground 11, we said the following (Magennis at [358]-[359]): Ground 11 should be upheld. There is now undisputed evidence that the tip of the clitoral head or glans has not been removed from either complainant. Therefore one possible explanation that was before the jury at trial as to the inability of Dr Marks clearly to visualise the tip of the clitoral head (and one that was left to the jury in closing), being an explanation that would have supported a finding of guilt in respect of the appellants, is no longer available. While having regard to the whole of the evidence, and the summing up, it cannot be concluded that the jury would have come to the same decision had the new evidence been available at the trial. Therefore a potential miscarriage of justice has been established. Having regard to the conclusions the Court has reached (see below) on grounds 1 and 2 of the grounds of appeal, the appropriate order is for there to be an acquittal.

Determination

1. The overturning of this Court's conclusion on ground 1 together with the subsequent abandonment of ground 2 of the appeal grounds brings into sharp focus our finding that a potential miscarriage of justice had been established in relation to the fact that one possible explanation that was before the jury at trial (as to the inability of Dr Marks clearly to visualise the tip of the clitoral head) was no longer available; that being an explanation that was left to the jury in closing and would have supported a finding of guilt in respect of the appellants.
2. When the matter was before this Court on the hearing of the appeals in the first instance, the appellants had maintained that, if ground 11 succeeded, their convictions should be quashed and the Court should exercise its discretion not to order a retrial. The Crown's position, on the other hand, was that the new evidence did not make the Crown's 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. It was submitted that a retrial would not involve advancing a case on a radically different basis to the one originally advanced; and that there would be a narrowing of the existing case on the retrial, not the running of a different or inconsistent case. The Crown submitted that there was clear and compelling evidence from a range of sources (including the appellants themselves) that amply supported the verdict.
3. Section 8 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 a 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 a 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.
4. It confers on the court a broad discretion (see Gerakiteys v R (1984) 153 CLR 317 at 321 (Gerakiteys); King v R (1986) 161 CLR 423 at 433 (King v R); ST v Regina [2010] NSWCCA 5 (ST v Regina); and Castagna v R; Agius v R [2019] NSWCCA 114 (Castagna)).
5. In Spies v The Queen(2000) 201 CLR 603; [2000] HCA 43, a new trial was ordered despite the fact that the appellant had already served the sentence for the particular offence and that it was said to be unthinkable that, if convicted, he would receive any additional punishment. There, Gaudron, McHugh, Gummow and Hayne JJ said (at [103]-[104]): … That being so, it seems prima facie oppressive to put the appellant to the expense and worry of another trial which, on the evidence of the previous trial, is likely to take about ten days. On the other hand, the case against the appellant … seems a strong one. If this Court were now to refuse to order a new trial of that charge, the appellant would be acquitted of all charges. In addition, members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach criminal or company law do not escape conviction. Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted …. That being so, it is a matter for the prosecuting authority to determine whether in all circumstances there should be a further trial …
6. In ST v Regina, Basten JA (at [9]) observed that "[i]t is well-established that a new trial should not be ordered if the evidence presented to the jury on the first trial was inadequate to support a conviction" (citing Andrews v The Queen; (1968) 126 CLR 198 at 211; [1968] HCA 84; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630; [1984] HCA 48). However, his Honour went on to note (at [10]) that "[w]here the evidence satisfies the test of sufficiency [(see Gerakiteys; King v R; and R v Taufehema (2007) 228 CLR 232; [2007] HCA 11 at [52] (Taufehema))], the discretionary power to grant a new trial is properly engaged" His Honour quoted the statement of O'Connor J in Peacock v The King (1911) 13 CLR 619 at 675; [1911] HCA 66 that: In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused. In this case there was … ample evidence to justify a verdict of guilty, if the jury thought fit to come to that finding on the evidence. If it were not for the misdirection as to the prisoner's statement, the verdict of the jury could not in my opinion have been disturbed.
7. In considering whether an order for a retrial was appropriate in that case, Basten JA weighed a number of factors (see ST v Regina at [12]-[17]), referring, as applicable, to the decisions of the High Court in Gerakiteys and in Taufehema. Those were: the time since the offences were committed (and whether this would preclude the appellant properly being put before a second jury); the time that the appellant had served of his sentence (noting that the fact that a significant part of the sentence on each count had been served was a factor weighing against the order of a retrial); that the first trial was brief and so any retrial might be expected to be of similar duration; whether the error at the first trial was one for which the prosecution was responsible; and (though doubting that this was a factor entitled to great weight) whether the appellant had been released from custody following a successful appeal (noting that it might be an element of potential prejudice to the appellant in having to face the stress and ordeal of a second trial).
8. In ST v Regina , Basten JA considered that the factor weighing most heavily against an order for a new trial under s 8 of the Criminal Appeal Act was the fact that a significant portion of the sentence had been served but noted that the effect of a further period of conditional liberty could, if a further trial resulted in fresh convictions, properly be taken into account by the sentencing judge. His Honour also took into account that the public interest in ensuring that compaints of the kind there before the Court (sexual abuse on a young child committed by a member of the family at least on one occasion acting in a position of trust as a babysitter) should be resolved in accordance with the process of law, concluding overall that this interest should be allowed to prevail.
9. In the present case, the factors that support an order for a retrial include that: the case presented at the first trial was one on which a jury, properly instructed, could reasonably convict the appellants; the unreasonable verdicts ground has been abandoned; there is no suggestion that the evidential basis for the prosecution would be significantly different at a new trial (albeit that evidence which it was found should have been excluded would presumably not be adduced at a new trial); the administration of justice favours the resolution of the charge in accordance with the process of law; and it would not be unfair, in a general sense, to put the appellants again on trial. Factors weighing against the order for a new trial include that: the first trial occupied a number of weeks and it may be assumed that a retrial would also take a not insignificant period of time; the conduct in question occurred in 2012; the sentences imposed on A2 and Magennis (prior to the quashing of their convictions) were to be served by way of home detention; the custodial sentence imposed on Vaziri (15 months' imprisonment with an 11 month non-parole period) has been partially served (about 3 months in custody before the grant of bail pending a stay); and there will no doubt be a degree of stress and uncertainty (not just to the appellants but also to the complainants) caused by an order for a new trial.
10. Unlike as was the case in Castagna v R (see the discussion at [191]-[205] by the Court, there comprised of Bathurst CJ, Macfarlan and Gleeson JJA), the present is not one where the case on a re-trial would be significantly different to that propounded in the original trial. Nor is it a case where, on the findings made by this Court, the appellants were entitled to verdict by direction so as to make it unjust in the circumstances to order a new trial to enable a new case to be agitated.
11. We accept that the appellants have already been exposed to a lengthy trial and that there will be stress occasioned by a re-trial. However, the factor that in our opinion weighs most heavily in favour of an order for there to be a re-trial is the public interest in the proper administration of justice. There is nothing to suggest that a retrial would be unfair to the appellants nor that they could not properly be put before a second jury. Nor can it be said that the prosecution had deliberately presented a case on an erroneous basis. The proper construction of s 45(1)(a) of the Crimes Act was one on which reasonable legal minds differed (as evidenced by the fact that the High Court decision was not unanimous). Particularly in light of the mischief that the legislation was enacted to address, and having regard to all the circumstances of the case, we consider that the appropriate order is for there to be a new trial, on the basis that the potential miscarriage of justice in the present case can more adequately be remedied by an order for a new trial than by any other order which the court is empowered to make.
12. It is to be accepted that, in our first judgment, we reached a different conclusion regarding the weighing of these discretionary matters when considering whether a new trial ought be ordered on the alternate counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act (Magennis at [635]-[638]). The Crown's basis for bringing those alternate counts was in our view unclear (Magennis at [594]-[607]). That said, we are satisfied that the discretionary considerations pertinent to the question of a new trial on the s 45(1) counts are different; and, that being so, we consider that it is appropriate to leave to the exercise of prosecutorial discretion whether to pursue the alternate counts in the context of a new trial on the s 45(1) counts and hence not to confine the counts on which a new trial is to be ordered.

Conclusion

1. For the above reasons, the Court makes the following orders in respect of each of the appellants: 1. Confirm that the appeal against conviction is allowed and the convictions quashed. 2. Order that there be a new trial of each of the appellants having regard to the proper construction of s 45(1)(a) of the Crimes Act. 3. List the matter before the Arraignments List Judge on 6 March 2020.

Amendments 12 February 2020 - publication restricted removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2020