R v A2; R v Magennis; R v Vaziri

Supreme Court of NSW|2015-09-24|Before: Johnson J

Judgment

JOHNSON J: The Crown seeks to adduce evidence of steps taken as part of the New South Wales Education Program on Female Genital Mutilation ("FGM") following the enactment in 1994 of an offence prohibiting FGM as contained in s.45 Crimes Act 1900.
Objection is taken on behalf of each of the Accused persons to the tender of this evidence.

The New South Wales FGM Education Evidence

The Crown seeks to call Ms Vivienne Strong, recently retired Manager of the New South Wales Education Program on FGM and Ms Linda George, the Community Education and Development Officer of the New South Wales Education Program on FGM since 2007.

Registration of Health Professionals

There is evidence before the jury from Detective Sergeant Stek that the Accused, Kubra Magennis, has been a registered nurse and midwife (T259 and T293). There is additional information before me (MFI29), provided by the Executive Officer of the Nursing and Midwifery Council of New South Wales, that the Accused Magennis born in 1943, was first registered in New South Wales as a nurse and midwife in 1977 on the basis of overseas qualifications and registration. Continuous registration records prior to 1995 are not available. However, available records reveal that she: 1. was registered from 28 February 1995 to 6 March 1997 when her registration lapsed, as she failed to pay her registration fee; 2. was re-registered from 9 October 1997 to 5 November 1998 when her registration lapsed for failure to pay the registration fee; 3. was re-registered from 23 February 1999 to 4 March 2004 when the registration lapsed again for non-payment of the registration fee; 4. was re-registered on 3 May 2004 with registration lapsing on 7 June 2007 for non-payment of the registration fee; 5. has not been registered as a nurse or midwife since 7 June 2007.
Evidence has been adduced on the voir dire this morning from Detective Sergeant Stek that enquiries reveal that the Accused Magennis worked at Liverpool Hospital between 2000 and 2004 (T425).
The Crown also points to the status of A1 as a medical practitioner working in that capacity in New South Wales. He has resided in Australia since 2000 (PT626.) He is the husband of one of the Accused persons, A2. I will return to this aspect later in this judgment.
Although A2 is a pharmacist (T259), the Crown does not seek to tender the FGM education material against her (upon the education of health professionals basis). It appears that FGM training is provided to frontline health care workers such as doctors and nurses, but not to pharmacists (MFI30).
The role and significance of a community education program undertaken after the enactment of s.45 in 1994 was referred to in my judgment in R v A2; R v KM; R v Vaziri (No. 2) 2015 NSWSC 1221 at [198]-[205]. Reference was made, at [202]-[204], to the statement of Ms Strong and the 2007 brochure which has been disseminated as part of the New South Wales Education Program on FGM.
It may be noted that the conclusion that I reached on the meaning of the word "mutilate" in s.45 (that it includes causing any injury to any extent for non-medical reasons) is not dissimilar to the explanation of a s.45 offence given in the New South Wales Education Program on FGM material: R v A2; R v KM; R v Vaziri (No. 2) at [110], [202]-[205] and [240]-[258].

The Crown Tender of New South Wales FGM Education Evidence

I turn to the bases upon which this material is tendered by the Crown, and against each of the Accused persons.
Firstly, the Crown seeks to tender the material against the Accused Magennis upon the basis that she has been a registered nurse and midwife over a period when education of health professionals, including nurses and midwives, concerning FGM was actively available. Although there is no direct evidence that the Accused Magennis attended any particular FGM education session, the Crown submits that it may be inferred that this information came to her attention as a nurse and midwife.
Secondly, the Crown seeks to tender the material against all of the Accused persons. It says that A1, as a practising medical practitioner in New South Wales, may be inferred to have been aware of the FGM education material. Although he is not an accused person (he is a Crown witness), the Crown submits that the electronic evidence demonstrates that he was closely involved in recorded conversations with each of the Accused persons in the development of the "Africa story" and the "checking story" which, the Crown says, were false explanations intended to explain away the true position, namely that FGM was undertaken, separately, by the Accused Magennis in the presence of the Accused, A2, upon each of C1 and C2 with injury to each girl resulting from that process.
The Crown submits 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.
The Crown seeks to rely upon some statements made in these conversations as admissions, and statements made concerning the "Africa story" and the "checking story" as lies which indicate consciousness of guilt of the performance of FGM causing some injury.
Thirdly, the Crown submits that the FGM education material is admissible because of some evidence of Professor Sonia Grover, a witness called for the Accused, A2 and Shabbir Vaziri, whose evidence was interposed at a relatively early point in the Crown case because of the impending unavailability of Professor Grover.
Counsel for each Accused person objects to the tender of this evidence on relevance and other grounds as appear in the transcript and submissions on this issue (T383-388).

Issues in Dispute in the Trial

As is apparent from the opening addresses at the start of the trial of Mr Sutherland SC for the Accused, A2 and Shabbir Vaziri, and Mr Bouveng, counsel for the Accused Magennis, there is a confined area of dispute in this trial (T50-70). There is no dispute that at places and times alleged in the indictment, the Accused Magennis used a metal instrument to come into physical contact with the genital area of each of C1 and C2. On each occasion, the Accused, A2, was present and she had requested the Accused Magennis to so act. Each girl was lying on a bed naked from the waist down during the event.
The issues in dispute may be summarised as follows. The Crown says that, on each occasion, what was happening was a form of FGM where some injury was caused to the clitoris of each child. The defence says that this was a form of religious or cultural ceremony where metal is laid upon the child's genital area, but that it was not a form of FGM, and that no injury was caused to either child.
The Crown seeks to rely upon different forms of evidence, both direct and indirect. As mentioned, the Crown will contend that the recorded conversations which took place on and after 29 August 2012 constitute admissions, express or implied, or evidence of lies indicative of consciousness of guilt.
It will be necessary, in due course, with the assistance of counsel, to formulate directions to be given to the jury concerning lies and consciousness of guilt by reference to the authorities, including Steer v R [2008] NSWCCA 295; 191 A Crim R 435, R v Lane [2011] NSWCCA 157; 221 A Crim R 311 and McKey v R [2012] NSWCCA 1; 219 A Crim R 227.

Some Evidence Relevant to this Ruling

For the purpose of this ruling, mention will be made of some parts of the evidence.
Between 9.50 am and 1.03 pm on 29 August 2012, each of C1 and C2 were interviewed separately by investigating officials concerning alleged FGM. That evidence is before the jury by way of video recordings (MFI2 and MFI7). Reference was made, in those interviews, to being "cut" and "hurt".
That same day, a number of conversations took place which were recorded by way of surveillance device or telephone interception warrant. Reference will be made to some of these.
Between 2.49 pm and 2.58 pm on 29 August 2012, whilst travelling in a motor vehicle, the Accused, A2, asked C1 and C2 what they had been spoken to about that day. Upon being told about what had been discussed, the Accused, A2, said to C1 (Exhibit AD): "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."
At 3.04 pm on 29 August 2012 (Exhibit AA, Tab 3), a telephone conversation takes place between the Accused, Shabbir Vaziri, and A1. The Crown says that there is discussion that C1 has told the interviewers that circumcision had happened. There is discussion about reference being made to the trip to Africa and what may have happened there. The Crown says this appears to be the genesis of the "Africa story". A1 says that he will speak to the Accused Magennis.
At 3.20 pm on 29 August 2012 (Exhibit AA, Tab 4), A1 spoke to the Accused Magennis by telephone. The Accused Magennis sounded concerned when told the girls had been interviewed and that C1 had "told all the truth". The Crown says that the ensuing discussion involved A1 saying that the authorities would be told that the girls had been checked in case anything had been done to them in Africa and that the Accused Magennis told him that she was "happy for him to go that way".
After 3.21 pm that day, a further conversation is recorded in a motor vehicle in which the Accused, A2, A1, C1 and C2 are present (Exhibit AF). A1 says at one point: "Kubra Aunty was worried." A2 then says: "We should say we don't remember names." A1 then said: "We can say that we called this lady to checkup 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."
At 4.08 pm that day, the Accused Magennis spoke by telephone to Zafar Sheikh (Exhibit AA, Tab 5). In this conversation she said in a sad voice: "I am quite in trouble."
A little later, in a weeping voice the Accused Magennis said: "I do not want to go to gaol at my age."
At 5.50 pm on 29 August 2012 (Exhibit AA, Tab 7), the Accused A2 and the Accused Magennis discuss by telephone what the Crown says is the "Africa story" and the "checking story".
At 5.13 pm on 30 August 2012 (Exhibit AA, Tab 19). The Accused Magennis speaks to the Accused Shabbir Vaziri by telephone. In the course of the conversation, the Accused, Shabbir Vaziri, tells her that thirty-five thousand had been sanctioned and that "your cheque will arrive". The Accused Magennis tells him that she had "phoned all the way to her brother Zafar" and she had said to him, "At my age I do not want to go to sit in a gaol".
The Crown says that there are further references in recorded conversations to the "Africa story" and the "checking story".
I will refer to one further conversation. At 6.17 am on 2 September 2012 (Exhibit AA, Tab 27), the Accused, A2, speaks to her father (in Kenya) by telephone. In the course of this conversation, the father asks: "Legally what will happen? Worst comes to worst, just a curiosity." The Accused, A2, replies: "They can put us behind bars. Whoever involved, they said all are in fault. They can put us behind bars."

Determination

I return to the bases upon which the New South Wales Education Program on FGM material is tendered.
The first basis relates to the Accused Magennis' status as a nurse and midwife, registered to practice in New South Wales for significant periods, in particular between 1999 and 2007. The offences here are alleged to have been committed between 2009 and 2012.
I am satisfied that evidence of the New South Wales Education Program on FGM directed to health professionals, including nurses and midwives, is relevant for the purposes of ss.55 and 56 Evidence Act 1995 in the case against the Accused Magennis. It is capable of assisting the jury in considering her 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.
The second basis sought the admission of the New South Wales Education Program on FGM material against each of the Accused persons by way 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 story" and the "checking story". I am satisfied that the New South Wales Education Program on FGM evidence is admissible against each Accused person on this basis. It is relevant for the purpose of the Evidence Act 1995. This is particularly so in assessing the almost immediate responses contained in the electronic evidence, where what is said to be a false story was allegedly developed by the Accused persons and A1 in the form of the "Africa story" and the "checking story", with that story then being given to investigators.
It will be for the jury to determine what flows from the use of these stories, but it is open to the Crown to contend that these are lies advanced out of consciousness of guilt, namely, that the true position was that what happened to each girl was a procedure involving FGM resulting in some injury to each girl.
In this context, it is appropriate to note that it will not be argued for the defence that the "Africa story" or the "checking story" are true. In his opening address to the jury, Mr Sutherland SC said (T67): "… there will not be any issue that nothing happened in Africa at all, that they were just expressions of scared people that were worried because the police were investigating what they contend was nothing more than a religious or cultural ceremony".
The third basis relied upon by the Crown arose from the evidence of Professor Grover. Early in her evidence-in-chief, Professor Grover gave a long answer including general comments about her experience with FGM in Victoria. In the course of an answer, Professor Grover said (T191.45-192.29): "I undertook a research project a little bit later in the 1990s looking at 50 consecutive women that we had seen at the Royal Women's Hospital in Melbourne to understand what age these women had had their circumcisions done and what problems they had experienced and then some time in the last five or six years I have done a repeat of the survey to obstetricians and gynaecologists as well as health care workers who are working with women from the relevant cultural backgrounds to find out whether people are seeing circumcision procedures or are hearing about whether circumcision procedures are being done in Australia and in fact we could find no evidence that it was being done in Australia. Tell me to stop if you want me to stop, but if I think about male circumcision the Children's Hospital's stopped and there's been a move to stop male circumcisions being done as part of public hospital's things and within-- HIS HONOUR Q. Could I just ask you to pause for a moment? I'm not being critical of the doctor, this is a long answer to an introductory question and we're now on to male circumcision. I'm not being critical but-- SUTHERLAND: It's up to me to pull the rope. HIS HONOUR: Mr Sutherland, if you could proceed by asking questions, perhaps asking the witness to focus on particular areas. SUTHERLAND: Yes. Q. We were specifically focussing on the area of, amongst other things, female genital mutilation or cutting, mutilation, circumcision, whichever is the apposite term surgically, if you could just finish your response without referring to male circumcision, if you would be so kind? A. The point was that I have never heard of an acute complication from a girl having a procedure done here in Australia and I think I would have heard of it, so I'm pretty confident it's not happening in Australia."
The Crown pointed to the two places where Professor Grover opined that there was no evidence that "it" (namely FGM) "was happening in Australia". In submissions, Mr Sutherland SC said he would not be relying on these observations of the witness which had nothing to do with this trial (T369).
While Professor Grover was under cross-examination, she replied to a question from the Crown Prosecutor in a manner which drew an intervention from me (T219.30-47): "Q. And with their eyes closed and being distracted by some dissociative technique, if the person who performed the procedure was able to put a cotton bud or something like that on to staunch whatever blood there might be, it's fair to say that the child wouldn't have seen the blood, do you agree with that? A. That's absolutely correct, but it - you remember that your cut on your finger, that it's required only one or two dabs before it stops bleeding, it's been a very superficial, minor, nonscarring, non-mutilating minor cut and the distinction I thought we were trying to make was whether this was a significant injury. HIS HONOUR Q. Could I indicate that the question of the term 'mutilate' is a question of law which ultimately I will give the jury some directions about; that is something you understand, don't you, Doctor? You are not here to give an opinion about what the word 'mutilate' means, are you? A. No, I'm not. Q. Thank you."
Professor Grover's response appeared to distinguish a "non-mutilating minor cut" from a "significant injury". What I said at that point speaks for itself. It is, of course, a matter for the Court to direct the jury concerning the meaning of the word "mutilates".
I am satisfied that the New South Wales Education Program on FGM material, which will be before the jury for other purposes as well, will also provide information to the jury concerning FGM in this State as communicated to health professionals and the general community. As I indicated earlier in this judgment (at [13]), the directions which I will give the jury concerning the meaning of the word "mutilate" in s.45 Crimes Act 1900, is not dissimilar to the explanation given in the New South Wales Program on FGM education evidence.
Although it is a subsidiary basis only, I am satisfied that the New South Wales Education Program on FGM evidence is relevant, as well, given the impression which may have arisen from the evidence of Professor Grover, which was given early in the trial (the witness having been interposed). That evidence appeared to be based upon Professor Grover's Victorian experience. Evidence concerning the New South Wales Education Program on FGM will assist the jury in this trial.
To the extent that any objection was taken to evidence on this topic generally under s.137 Evidence Act 1995, I record my conclusion that the probative value of this evidence is not outweighed by the danger of unfair prejudice to the Accused persons.
Accordingly, I propose to allow the Crown to adduce evidence of the New South Wales Education Program on FGM as applied up to September 2012.
If evidence on this topic was to be admitted, specific objection was taken to the tender, as a physical exhibit, of the 2007 brochure entitled "New South Wales Education Program on Female Genital Mutilation" (contained in MFI23 and MFI24) and in the canvass material provided by police to members of the Dawoodi Bohra community (MFI14). I accept that there is material in the booklet which may give rise to some confusion, including the reference to the World Health Organisation classification comprising four types of FGM.
Having determined to allow evidence in this area, I have in mind oral evidence on these matters, perhaps accompanied by a document extracting some material from the brochure. I do not think the complete brochure should be tendered.
Having reached this point, I will allow counsel to consider the form of evidence which will be given. I will rule on any remaining controversy, if required.

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: 19 February 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Cases Cited (3)

Cited By (3)