KIEFEL CJ AND KEANE J. Section 45 of the Crimes Act 1900 (NSW) came into effect on 1 May 1995. It was introduced by the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW). The section is headed "Prohibition of female genital mutilation". At the relevant time, s 45(1) was in these terms:
"A person who:
(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or
(b) aids, abets, counsels or procures a person to perform any of those acts on another person,
is liable to imprisonment for 7 years."
The respondents A2 and Ms Kubra Magennis were charged upon indictment with having "mutilated the clitoris" of each of C1 and C2 on separate occasions. They were also charged with an alternative count of assault occasioning actual bodily harm. The respondent Mr Shabbir Mohammedbhai Vaziri was charged with assisting A2 and Ms Magennis following the commission of those offences.
A2 and her husband, A1, are members of the Dawoodi Bohra community. The members of this community adhere to Shia Islam. Mr Vaziri is the head cleric and spiritual leader of the community in Sydney. Ms Magennis is a member of the community, and a trained nurse and midwife. The Crown alleged at trial that she performed the practice in question for members of the community.
The Crown case was that A2 (the mother of C1 and C2) and Ms Magennis were parties to a joint criminal enterprise to perform a ceremony called "khatna", which involves causing injury to a young girl's clitoris by cutting or nicking it. The procedure was said to be intended to suppress the development of a girl's sexuality as she attains puberty. The Crown did not suggest that the procedure has a basis in religion but rather suggested that it is cultural in nature.
This procedure was allegedly conducted on each of C1 and C2 in the presence of A2 and other family members. With respect to C1, the procedure was allegedly conducted at the home of A1's aunt when C1 was aged between six and eight years of age. C2, the younger of the sisters, was six years old when she was later allegedly subjected to the same treatment.
The respondents did not dispute that there had been a procedure performed by Ms Magennis on C1 and C2. The defence case was that it was merely ritualistic and did not involve any nick or cut to the clitoris of either complainant. To rebut this aspect of the defence case, the Crown relied on: the accounts given by C1 and C2, in their recorded interviews with police, of feeling pain; expert evidence tendered in relation to the practice of khatna within the community; and conversations between A2, A1 and others, which were intercepted or recorded via listening devices, as to what was involved in the practice.
The respondents also argued that even if there was a cut or a nick (the latter presumably being a lesser version of the former) to the clitoris of either complainant, that would not amount to "mutilation" within the meaning of s 45(1)(a). The trial judge in the Supreme Court, Johnson J, made a pre-trial ruling concerning the words "otherwise mutilates" in s 45(1)(a). His Honour subsequently directed the jury in accordance with that ruling in terms that:
"The word 'mutilate' in the context of female genital mutilation means to injure to any extent."
His Honour then went on regarding the Crown case to direct that:
"[i]t is not necessary for the Crown to establish that serious injury resulted. In the context of this trial, a nick or cut is capable of constituting mutilation for the purpose of this alleged offence."
A written direction in the same terms was provided to the jury.
A2 and Ms Magennis were each found guilty by the jury of two counts of female genital mutilation contrary to s 45(1)(a) and Mr Vaziri was found guilty of two counts of being an accessory to those offences. Johnson J sentenced each of the respondents to an aggregate of 15 months' imprisonment with a non‑parole period of 11 months and ordered that the sentences imposed upon A2 and Ms Magennis be served by way of home detention. Mr Vaziri was required to serve his non‑parole period by way of full-time imprisonment.
On appeal, the Court of Criminal Appeal (Hoeben CJ at CL, Ward JA and Adams J) quashed the respondents' convictions and ordered verdicts of acquittal on all counts. Their Honours concluded that the trial judge had misdirected the jury as to the meaning of "mutilates" and that there had been a miscarriage of justice due to fresh evidence. In their Honours' view, the word "mutilates" should be given its ordinary meaning for the purposes of s 45(1)(a). That meaning "connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion".
Special leave to appeal was granted by Bell, Gageler and Edelman JJ on two grounds. The first is a matter of general importance respecting the operation of s 45(1)(a). It is that the Court of Criminal Appeal erred in construing "otherwise mutilates" as it did. The second relates to the meaning the Court gave to the term "clitoris", namely that it did not include the clitoral hood or prepuce.
"Otherwise mutilates"
The reasoning of the courts below
The essential difference in approach to the meaning of the term "otherwise mutilates" in s 45(1)(a) as between the trial judge and the Court of Criminal Appeal is that, whilst the Court of Criminal Appeal applied the grammatical or literal meaning of the word "mutilates", the trial judge considered that the meaning to be given to that word should take account of the context in which the word is used. In his Honour's view, the word should be understood as part of the broader umbrella term, "female genital mutilation" (or "FGM"). This broader construction, advanced by the Crown, would best promote the purpose or object of prohibiting such procedures generally. This purpose is evident from extrinsic materials and in particular the report published in June 1994 by the Family Law Council with respect to the practice of female genital mutilation in Australia ("the FLC Report").
The Court of Criminal Appeal regarded it as important that the Crimes Act does not use the term "female genital mutilation" in describing the elements of the offence in s 45. It uses only the word "mutilates". Although apparently accepting that the term "female genital mutilation" has come to be accepted as a collective name, which is to say a term encompassing all forms of cultural ritual practices of the kind in question, the Court of Criminal Appeal did not consider this to be relevant given the words used in s 45(1).
The Court of Criminal Appeal accepted that, regardless of whether there was ambiguity in the text of s 45(1)(a), it was permissible to have recourse to extrinsic materials to determine the context for the offence provision, including its purpose and the mischief it sought to address. The Court accepted that the word "mutilates" should be construed in the context of the FLC Report and that the recommendations contained in it informed the legislature's purpose in enacting s 45. However, their Honours considered that that general purpose cannot extend the scope of the conduct prohibited by the actual words used. The umbrella term "female genital mutilation" was not used in s 45(1), and the phrase cannot supplant the meaning of the words actually used.
The FLC Report, to which reference will be made shortly in these reasons, refers to four categories of female genital mutilation. The least severe of these practices was referred to as "ritualised circumcision". Both the FLC Report and the World Health Organization ("the WHO") had recommended its inclusion in the forms of female genital mutilation to be prohibited by law, the Court of Criminal Appeal noted.
That category is relevant to the Crown case because "ritualised circumcision" involves nicking or cutting the clitoris. The Court of Criminal Appeal, however, observed that while the Second Reading Speech of the Bill which became the Act that introduced s 45 contained no disagreement with the recommendation of the Family Law Council that all forms of female genital mutilation be prohibited, it was notable that the speech referred expressly only to the three more severe forms of it. The Court of Criminal Appeal considered this to support the view that s 45(1)(a) requires some more severe form of injury than a nick or a cut that leaves no visible scarring and which cannot be seen on medical examination to have caused any damage (let alone irreparable damage) to the skin or nerve tissue.
The Court of Criminal Appeal concluded that the term "mutilates" controls the scope of s 45(1)(a). It requires some imperfection or irreparable damage to have been caused. Their Honours accepted that "a cut or nick could, in a particular case, amount to mutilation of the clitoris". The error that their Honours saw in the direction given by the trial judge was that it included the words "to any extent", because they suggested that a de minimis injury would suffice. Their Honours added that if the legislature intended to encompass all forms of female genital mutilation, legislative amendment would be necessary to expressly incorporate the least severe category of female genital mutilation.
Female genital mutilation and the WHO
Early studies and discussion from the late nineteenth century and until the 1980s referred to the customary ritual of some of the practices in question as "female circumcision". From the late 1970s, support grew for the alternative expression "female genital mutilation" to be used. The WHO has explained that the term "mutilation" was chosen to distinguish the practice from male circumcision, to emphasise the gravity and harm of the act and to reinforce the fact that the practice is a violation of girls' and women's rights and thereby to promote advocacy for its abandonment.
In 1982, the WHO made a formal statement of its position to the United Nations Commission on Human Rights, that governments should adopt clear national policies to abolish the practice of female genital mutilation and to educate the public about its harmfulness. By this time, four different types of the practice had been identified. In January 1994, the Executive Board of the WHO passed a resolution which urged Member States to "establish national policies and programmes that will effectively, and with legal instruments, abolish female genital mutilation … and other harmful practices affecting the health of women and children". This resolution was later adopted by the Forty-seventh World Health Assembly.
The FLC Report
The functions of the Family Law Council include advising and making recommendations to the Commonwealth Attorney-General at the request of the Attorney-General. In September 1993, the Attorney-General asked the Family Law Council to examine the adequacy of existing Australian laws to deal with the issue of female genital mutilation. The Family Law Council issued a discussion paper on 31 January 1994. Its final report to the Attorney-General, the FLC Report, is dated June 1994. It described female genital mutilation as "the collective name" given to several different traditional practices that involve the cutting of female genitals. It said that those who oppose the practice call it "genital mutilation". It advised that the term "female genital mutilation" is used in the report to include all types of the practice where tissue damage results.
The first form of female genital mutilation to which the FLC Report referred is the least severe form, namely "ritualised circumcision", which was referred to by the Court of Criminal Appeal as the fourth category. The FLC Report explained that "ritualised circumcision" ranges from a wholly ritualised procedure to the clitoris being "nicked" or scraped. This causes bleeding but may result in "little mutilation or long term damage". The second form is "clitoral circumcision" or "sunna". It involves the removal of the clitoral prepuce - the outer layer of skin over the clitoris, which is sometimes called the "hood". The third form is "excision" or "clitoridectomy", which usually involves the removal of the entire clitoris and often parts of the labia minora as well. The fourth and most severe form is "infibulation", which involves removal of virtually all of the external female genitalia and the sewing together of the edges of the labia majora.
The FLC Report advised that female genital mutilation mostly occurs when a female child is between three and eight years of age. It is not, the report stressed, a religious practice. The practice undoubtedly constitutes child abuse. The report identified a number of international instruments as relevant to the practice of female genital mutilation, including the Convention on the Rights of the Child. Article 24(3) of the Convention requires State parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Australia is a party to the Convention, the FLC Report observed.
Although it was not possible to ascertain with accuracy the incidence of the practice of female genital mutilation in Australia, the FLC Report concluded that even a low incidence could not be disregarded and it might be expected that, with the increase of migrants to Australia, it would increase. The Family Law Council considered there to be a need for special legislation to clarify the legal position relating to female genital mutilation in Australia. This was for reasons including that "[t]here should be no doubt in any person's mind that all forms of female genital mutilation are offences under Australian law". It concluded that there should be special legislation which makes it clear that the practice is an offence in Australia and recommended that, to be fully effective, legislation should put beyond doubt "that female genital mutilation, in all of its forms, is a criminal offence" and that it constitutes child abuse under Australian child protection legislation.
The Explanatory Note and the Second Reading Speech
The Explanatory Note which accompanied the Crimes (Female Genital Mutilation) Amendment Bill 1994 (NSW) referred to "[p]rocedures involving the incision, and usually removal, of part or all of the external genitalia of young females" as being practised as a matter of custom or ritual. The object of the Bill was to make it an offence to mutilate external female genitalia or to aid, abet, counsel or procure such mutilation.
The Second Reading Speech of the Bill was given in the Legislative Council of the New South Wales Parliament on 4 May 1994. It refers to the "detailed report" of the Family Law Council and its recommendations with respect to the practice of female genital mutilation. It does not refer to the earlier discussion paper. Although the published FLC Report bears the date June 1994, it may be taken as likely that advance copies were available to those responsible for drafting the Bill and the Second Reading Speech.
The Minister giving the Second Reading Speech said at the outset that "[f]emale 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". He said that "[t]his bill will make the practice of female genital mutilation a criminal offence in this State". The Minister used the term "the practice" throughout the speech to refer to female genital mutilation.
The practice, he said, had been condemned at an international level and the WHO had recommended that governments adopt clear national policies to abolish it. Some countries had already moved to prohibit it specifically, he observed. The Family Law Council in its "recently released ... detailed report ... strongly recommended the introduction of legislation to make clear that FGM constitutes a criminal act and a form of child abuse". The Bill, the Minister went on to say, "has its roots in the protection of children".
It is the following description of the provisions of the Bill by the Minister which was influential to the Court of Criminal Appeal's reasoning. The Minister said that "[i]t will be an offence for anyone to perform FGM in this State". He went on to say that "[t]he three forms of FGM in order of severity are infibulation, clitoridectomy and sunna". The Bill, he said, "seeks to prohibit all of these various methods of FGM". The point made by the respondents, and by the Court of Criminal Appeal, is that the Minister did not expressly refer to ritualised circumcision as the FLC Report had done. The question is whether the words "or otherwise mutilates" can be taken to refer to ritualised circumcision.
In the concluding remarks of the speech, the Minister stressed that in passing a law against female genital mutilation, the Government was not seeking to attack the values of any particular group in the community. However, the practice could not be tolerated, not least because it involved the rights of young children. The Minister said that "[a]s responsible members of the community, we should place our condemnation of FGM beyond doubt".
Construction - method
At issue in these appeals is the scope and operation of s 45(1) and in particular whether the words "otherwise mutilates" may be taken as intended to encompass the procedure upon which the Crown case was based.
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
The mischief and the purpose of s 45
Section 45 was the first provision of its kind enacted in Australia. Its terms reflect those of ss 1 and 2 of the Prohibition of Female Circumcision Act 1985 (UK) ("the UK Act"). The side note (the use of which preceded that of section headings) of s 1 was "Prohibition of female circumcision". At the time that s 45 was passed there was no case law regarding the scope of those provisions.
Whilst s 45 picked up the words of ss 1 and 2 of the UK Act, neither the title of the Act which introduced it nor the heading to s 45 refers to the older terminology, "female circumcision". The heading to s 45, and the immediate context for the words "otherwise mutilates", is "[p]rohibition of female genital mutilation".
A modern approach to statutory construction may take account of headings. Whilst headings of a provision are not always reliable and do not form part of a statute, and so may not govern what follows in the provision, headings may be used in a similar way to extrinsic materials. They may point the way towards and be used to identify the mischief to which the provision is directed and its purpose. The heading of s 45 does just that.
The possible gap or defect in the law which the Attorney‑General had asked the Family Law Council to consider was that relating to female genital mutilation. The term, it may be observed, by this time had acquired a broad and purposive meaning in many of the reports and discussions concerning the various practices accounted for as female genital mutilation. But it is not necessary to go further than the meaning which the FLC Report gave to the term. It is that meaning which identifies the mischief which needed to be addressed by legislation. The mischief is the practice of female genital mutilation in its various forms.
The FLC Report used the term "female genital mutilation" as a collective name to refer to all ritual practices carried out on female children which had no medical benefit and involved tissue damage. It advised the Attorney-General that there was a need for special legislation to make it plain that female genital mutilation, in all its forms, should be an offence.
Consistently with its use of the term "female genital mutilation", the FLC Report referred to its various forms collectively as "the practice". The Second Reading Speech adopted the terminology of the FLC Report. In the speech it was said that the practice should be condemned and the practice should not be tolerated. The Second Reading Speech as a whole conveys acceptance of the FLC Report and an intention to implement it.
So understood, the mischief to which s 45 is directed is a gap in the law concerning the practice of female genital mutilation in all its forms which are productive of injury. Its immediate purpose is to criminalise the carrying out of that practice on female children. Its wider purpose may be taken to be its cessation.
A narrower scope?
The Court of Criminal Appeal rejected an argument that "otherwise mutilates" should be read in the context of the words preceding it ("excises" and "infibulates"), so as to import a common requirement of severe damage and injury of a high order. There is no notice of contention which takes issue with that approach. Nevertheless the Court of Criminal Appeal considered that the words "otherwise mutilates" import a requirement that permanent disfigurement or obvious damage result from what is done.
The Court of Criminal Appeal was of the opinion that the Minister's speech bears this out: that the Minister can be understood to say that it was intended to prohibit the three most severe forms, but not the fourth, which involves a lesser form of injury. The problem with that approach is that it is inexplicable and improbable. It is inexplicable given the obvious acceptance of the recommendation of the FLC Report to prohibit all four forms of female genital mutilation there expressly identified. It is improbable because there is nothing to suggest that a lesser form of injury to a child was considered to be acceptable or, at the least, not warranting condemnation. The Bill which became the Act that introduced s 45, after all, was said by the Minister to address what amounts to child abuse and the FLC Report had said that female genital mutilation in all its injurious forms was child abuse as understood in child protection laws.
The Court of Criminal Appeal did not explain why the term "otherwise mutilates" may have been intended to have a narrower, more literal meaning, one which denies its application to the cutting or nicking of a female child's clitoris. Although the Court accepted that cutting or nicking could in a particular case amount to mutilation, on its construction of "mutilates" in s 45(1) as bearing its ordinary meaning that could only be where some lasting damage had been inflicted.
Difficulties would also attend this construction in practice. The medical evidence at trial was that a superficial cut, or incision, of the clitoris would heal well, sometimes bearing little or no evidence of what had occurred. On the Court of Criminal Appeal's construction, it may be taken as intended that even if a child might suffer a painful and distressing experience, no offence is committed unless some defect or damage is apparent. This in turn might require the prosecution to have been brought immediately.
The respondents also contended that if "otherwise mutilates" has the extended meaning provided by the term "female genital mutilation", s 45(1) would make it an offence to carry out a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals. The answer to the argument is that no such problem would arise if "otherwise mutilates" is taken to refer to practices to which female genital mutilation refers.
Section 45(3)
The respondents also pointed to s 45(3) in aid of the construction for which they contended. Sub-section (3) provides, in relevant part, that it is not an offence against s 45(1) to perform a surgical operation if it is necessary for the health of the person and it is performed by a medical practitioner. It is most clearly protective of beneficial medical procedures such as may be necessary during or following childbirth or to correct or repair some of the effects of forms of female genital mutilation such as infibulation.
The point made by the respondents respecting s 45(3) is that it would be redundant if the section proscribed the practice of female genital mutilation, which is necessarily for non-medical purposes. However, s 45(3), commencing with the words "It is not an offence against this section ...", is properly read as a clarification inserted for the avoidance of doubt, and not as an exception to s 45(1).
Offence provisions
A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.
The meaning to be given to "otherwise mutilates", as referable to practices falling within the umbrella term "female genital mutilation", does not involve any artificial or unexplained extension. There is no ambiguity as to its meaning after it is considered in its context and by reference to the mischief to which it is directed and its purposes. The word "mutilates" in its ordinary usage is simply displaced in order to give effect to the purpose of s 45, to prohibit the practice of female genital mutilation on female children in order to achieve its cessation. So understood, "otherwise mutilates" is to be taken to refer to female genital mutilation in all its injurious forms.
Cases such as Milne v The Queen do not avail the respondents. There, the construction for which the respondent contended was not borne out by the text of the provision, and its purpose, evident from extrinsic materials, did not require it. In SAS Trustee Corporation v Miles, it was said that a court should construe a statute according to its terms rather than preconceptions about policy, but here there is no question of any preconception. The policy of s 45 is stark. The joint judgment in Grajewski v Director of Public Prosecutions (NSW) adopted the ordinary meaning of the word "damage", but that was in large part because there was no support for any other meaning and the legislative history did not support an extended meaning.
A broad construction of an offence provision may be warranted in a particular case. This may be when its purpose is protective. In R v Sharpe, McLachlin CJ of the Supreme Court of Canada construed offence provisions relating to child pornography broadly in a number of respects. Her Honour interpreted the provisions in accordance with Parliament's main purpose in creating those offences: to prevent harm to children through sexual abuse. A similar purposive approach was taken by the Court of Appeal of the Supreme Court of Victoria in Clarkson v The Queen in rejecting an argument that "apparent or ostensible consent" could be a mitigating factor in sexual offences relating to underage sex.
A construction which gives a broader scope to s 45 is consistent with its wider purpose, to prohibit completely female genital mutilation practices injurious to female children. That purpose is consistent with Australia's obligations under the Convention on the Rights of the Child, to which the FLC Report drew attention.
In R v Wei Tang, which concerned the offence of slavery in s 270.3 of the Criminal Code (Cth), it was argued that the term "slavery" was confined in its meaning to the exercise of powers consistent with rights of ownership, or "chattel slavery". Gleeson CJ observed that although the definition of slavery in s 270.1 was not identical to that in the International Convention to Suppress the Slave Trade and Slavery of 1926, the s 270.1 definition was clearly enough derived from the Convention. The purpose, context and text of the Convention did not limit slavery to its de jure status. The Convention was directed to "the complete abolition of slavery in all its forms", and reflected a purpose of bringing about the abolition of the de facto condition of slavery. Accordingly, his Honour held that it would be inconsistent with the considerations of purpose, context and text to read "slavery" in ss 270.1 and 270.3 as limited to "chattel slavery".
A purposive approach of this kind does not suggest that the language of a statutory provision is to be ignored. It is rather that a broader meaning of the language is to be preferred over its ordinary or grammatical meaning. It is necessary to do so to give effect to the provision's purpose. That purpose is evident from the use of the term "female genital mutilation" in the heading and extrinsic materials. The word "mutilates" is to be understood as a term of condemnation of any of the practices referred to in the FLC Report injurious to a female child. It follows that an injury such as cutting or nicking the clitoris of a female child cannot be said to be de minimis.
Injury - to any extent?
It also follows that the trial judge did not misdirect the jury in summing up that the word "'mutilate' in the context of female genital mutilation means to injure to any extent". The Court of Criminal Appeal, it will be recalled, considered that those words would convey to a jury that a de minimis injury would be sufficient for the offence. But the trial judge's direction was legally correct as consistent with the FLC Report and it provided the necessary explanation of the issue before the jury.
The function of a summing up is to provide information to a jury to assist it to carry out its task having regard to the particular circumstances of the case. The particular issue here in question was whether what occurred involved no injury at all. It was the defence case that the khatna ceremony was partly symbolic and involved merely the placing of a surgical instrument on the vulva of the complainants. It was described as "skin sniffing the steel", and as involving no nicking or cutting and therefore no damage or injury to the complainants. The Crown submitted that this concept was bizarre and implausible.
Against this background and in light of the defence submissions concerning the meaning of "mutilates", it is apparent that the purpose of the trial judge's direction that injury "to any extent" was sufficient was to emphasise that some injury was necessary but that a threshold of serious injury was not required. His Honour, correctly, was concerned to disabuse the jury of the notion that "mutilates" bears its ordinary meaning.
Meaning of "clitoris"
The indictment charged the respondents with the mutilation of the clitoris of each of C1 and C2. The trial judge directed the jury that "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."
The defence had pointed to a number of dictionary definitions, including medical dictionary definitions, which suggested that the prepuce is part of the labia minora. The trial judge considered that the issue was capable of being moot to an extent, given that the definitions and medical evidence demonstrate that if the prepuce is not part of the clitoris, it is part of the labia minora. But if that were the case it might have been necessary to amend the indictment.
His Honour construed "clitoris" broadly, having regard to the context and purpose of s 45(1). He observed that female genital mutilation procedures are not carried out by surgeons. Although the legislature had identified three particular areas and had not used a broader term such as "genital area", his Honour was satisfied that, as a matter of construction, "the clitoris and the prepuce of the clitoris are 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".
It does not appear to have been contended by the parties that the word "clitoris" has a technical meaning which invites recourse to expert evidence. Nevertheless, the Crown adduced evidence from medical experts as to its meaning. Dr Susan Marks, a specialist at the Westmead Children's Hospital, gave evidence that the clitoral anatomy includes its hood, because they are closely physically related to each other, although the clitoris and its hood are different tissue. Professor Gregory Jenkins, a specialist gynaecologist, gave evidence that he would see the clitoris and prepuce as separate structures, but observed that they are very close together. Professor Sonia Grover, the director of the Department of Paediatric and Adolescent Gynaecology at the Royal Children's Hospital, described the word "clitoris" as 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.
Reviewing the medical evidence, the Court of Criminal Appeal observed that the fact that Professor Jenkins considered the clitoris and prepuce to be separate structures "would not detract from the proposition that together they might be viewed as forming part of the clitoris as a whole". Nevertheless the Court found that the medical dictionary definitions differentiated between the clitoris and prepuce. It said that where the legislature has identified separate anatomical parts of the genital area with some precision it must be taken to be distinguishing between them. It held that "[g]iven that this is a penal statute, precision in identifying the relevant body part is important". The Court of Criminal Appeal concluded that the trial judge had been in error in this aspect of his summing up.
The approach of the trial judge to the construction of s 45(1)(a) is to be preferred as one which promotes the purpose of s 45(1). As explained above, that purpose was to prohibit all forms of injurious female genital mutilation, procedures which, the FLC Report had observed, are not generally carried out by surgeons or with any precision. This context and purpose does not suggest an intention that any narrow or technical meaning be applied so as to exclude anatomical structures that are closely interrelated with the labia majora, labia minora or clitoris.
Relief
It follows, in our view, that the appeals should be allowed. It remains to determine the nature of the relief that is appropriate in the circumstances.
Section 37 of the Judiciary Act 1903 (Cth) provides that this Court, in its appellate jurisdiction, may give such judgment as ought to have been given in the first instance and, if the cause is not pending in this Court, may remit the cause to the court from which the appeal was brought. This directs attention to the powers of the Court of Criminal Appeal on the appeals to that Court, in light of the judgment of this Court in these appeals.
Subject to the proviso, s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the CA Act") relevantly provides that the Court of Criminal Appeal shall allow an appeal from a conviction on indictment where it is of the opinion that the verdict of the jury is "unreasonable, or cannot be supported, having regard to the evidence, or ... that on any other ground whatsoever there was a miscarriage of justice". Section 6(2) of the CA Act governs the consequential orders.
The Court of Criminal Appeal allowed the respondents' appeals against their convictions on various grounds. The determination of two of those grounds depended upon the Court of Criminal Appeal's erroneous construction of s 45(1)(a) of the Crimes Act. Other successful grounds were, however, independent of the substantive issues on these appeals. Those grounds turned instead upon conclusions that evidence had improperly been admitted at the respondents' trials; that the trial judge had erred in ruling that C2 was competent to give sworn evidence; and that there had been a miscarriage of justice on account of the absence from the trial of medical evidence which, by the time of the appeals, had become available.
The first such error concerned the evidence of Dr X. The Crown tendered evidence at trial through Dr X as to the practice of khatna in the Dawoodi Bohra community in India in a period up to 1991. Dr X's knowledge was based on her personal experience of having a procedure undertaken on her genital area in 1950 or 1951, and on sociological studies based largely on anecdotal accounts from persons whom she interviewed. Her evidence was to the effect that the practice of khatna is static and non-ritualistic.
The Court of Criminal Appeal held that the evidence adduced from Dr X was partly speculative and was not derived from any area of specialised knowledge. It was not admissible under s 79(1) of the Evidence Act 1995 (NSW), which relates to expert evidence, and should not have been admitted. The appellant does not now challenge that conclusion.
The third error concerned new medical evidence which was adduced before the Court of Criminal Appeal. It is not necessary to detail it. It had the effect of excluding the possibility that the tip of the clitoral head or glans had in fact been removed from C1 and C2. That possibility had been left before the jury, in light of the evidence of one of the expert medical witnesses that she could not see the clitoral glans of either C1 or C2 during her examinations of them. Again, the appellant does not challenge the conclusion of the Court of Criminal Appeal that a potential miscarriage of justice thereby occurred.
In light of those concessions the appellant also concedes that, if its appeals to this Court are successful, this Court should leave undisturbed the Court of Criminal Appeal's orders allowing the respondents' appeals to that Court and quashing their convictions. But what the appellant did ask this Court to do if its appeals were allowed was to set aside the Court of Criminal Appeal's consequential orders entering verdicts of acquittal and, in their place, order that new trials be had. The respondents argued that, if the appeals were allowed, this Court should set aside the orders entering the verdicts of acquittal and make no orders for new trials. In the alternative, it was said to be open to this Court to allow each appeal but leave undisturbed the Court of Criminal Appeal's orders entering verdicts of acquittal.
Sections 6(2) and 8(1) of CA Act
Section 6(2) of the CA Act provides that if an appeal against conviction is allowed, the Court of Criminal Appeal "shall ... quash the conviction and direct a judgment and verdict of acquittal to be entered". The sub-section is subject to other provisions of the CA Act and, in particular, s 8(1), which provides that on an appeal the Court may order a new trial if it considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, the miscarriage can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make. The orders sought by the respondents seem contrary to the terms of s 6(2). Here context provides little assistance in the construction of s 6(2) except that, taken with s 8(1), it appears to provide only a binary choice. The terms of s 6(2) appear to require an order for entry of acquittal unless the Court's other powers, such as that to order a retrial, are exercised. The premise of s 6(2), in a case such as this, is that, if a retrial is not ordered, the person whose conviction has been set aside is entitled to an acquittal.
It may be observed that in Jiminez v The Queen, where it was not considered appropriate to order a retrial, this Court ordered the entry of a verdict of acquittal. The reasons in Jiminez did not discuss the option here suggested and no other decision of this Court appears to have discussed the question in any detail. In these circumstances the parties provided further written submissions at the request of the Court.
In their joint submissions the respondents argued that it is open to the Court to quash the conviction and decline to make a further order. They pointed to a number of cases where this has occurred. None of these cases explains how this choice was seen to be open as a matter of the construction of ss 6(2) and 8(1).
Some cases to which the respondents referred are explicable on another basis. Cases such as Maher v The Queen stand for the proposition that there is no need to enter a verdict of acquittal where it has been held that the trial itself is a nullity, or where the indictment is invalid. In R v Swansson, Simpson J pointed out that the inevitable consequence of allowing an appeal is the quashing of the conviction. The dilemma, her Honour noted, was how the Court could then declare the trials to be a nullity - never to have taken place - and yet order new trials to be had. In that circumstance, her Honour opined, the Court should merely quash the conviction. Whatever be the correct approach in cases of this kind, these cases do not support the proposition that it is open to the Court to quash a conviction but not order a retrial or enter a verdict of acquittal.
It is true that there are some cases where this Court has simply made an order quashing a conviction, but, as they do not contain any discussion of whether a verdict of acquittal ought to be entered in circumstances where the Court determined not to order a retrial, the omission of an order entering a verdict of acquittal may have been the product of oversight.
In Gerakiteys v The Queen, upon which the respondents relied, it was held that the applicant's conviction on a broad conspiracy charge could not be supported by the evidence and therefore should be quashed. For the same reason, it was not considered to be appropriate to order a retrial. Gibbs CJ discussed whether it was appropriate to order a retrial and concluded that the appropriate course was simply to quash the conviction and leave it to the Crown to decide whether to prosecute in respect of one or other of the more limited conspiracies which could be supported by the evidence. His Honour did not discuss the entry of a verdict of acquittal. None was sought. Each of Murphy J and Deane J expressed the view that the applicant was in the circumstances entitled to an acquittal.
In Pedrana, Ipp A-JA, referring to ss 6(2) and 8(1), said that these provisions "do not empower the court to order that no new trial should be held. Nor do they empower the court to quash the conviction and make no other order." The view that these provisions present the only alternatives where an appeal against conviction on indictment is allowed is consistent with statements by members of this Court in R v Taufahema that "[t]he question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal" and in Spies v The Queen that "[i]f this Court were now to refuse to order a new trial of that charge, the appellant would be acquitted of all charges".
It follows in our view that it is not open to construe ss 6(2) and 8(1) of the CA Act as permitting the Court of Criminal Appeal in a case such as the present to quash the respondents' convictions but neither order a new trial nor enter verdicts of acquittal. That is sufficient to dispose of the respondents' primary contention.
A new trial?
As to the respondents' alternative contention, unless the interests of justice require the entry of a verdict of acquittal, an appellate court would ordinarily order a new trial where there is sufficient evidence to support a conviction.
It is well settled that provisions such as s 8(1) confer a discretion to order a new trial. There may be factors which suggest that such an order is not appropriate. In the present case there are some such factors. C1 and C2 were children when they were interviewed by police and when they gave evidence at a trial which took place in 2015. The trial judge, in considering whether C1 and C2 were compellable to give evidence against their mother, accepted that there was a likelihood that psychological harm might be caused to them. There could be little doubt that a second trial would compound that distress. Unlike cases involving sexual offences, C1 and C2 would be required to give evidence at a new trial. The provision of the Criminal Procedure Act 1986 (NSW) that protects vulnerable witnesses does not permit the tender of a complainant's original evidence at a retrial of offences contrary to s 45 or s 59 of the Crimes Act. Additionally, A2 and Ms Magennis have served the sentences imposed on them, and Mr Vaziri served three months of his sentence in full-time imprisonment and was then subject to strict bail conditions for a period of more than 13 months.
These factors might be thought to point against an order for new trials. The dilemma which it might create for a court is that a verdict of acquittal does not seem appropriate either. It was, in part, to this difficulty that the parties' arguments concerning ss 6(2) and 8(1) were addressed. It seems to us that, in the special circumstances of this case, there may be another course open. It is to order a new trial and leave the question whether one be had to the discretion of the Crown.
There is, however, a question which is necessarily antecedent to considerations of this kind. It is that mentioned earlier, whether there is sufficient evidence to warrant an order for a new trial.
The test of sufficiency
The question of whether there is sufficient evidence to support a conviction is ordinarily to be determined in accordance with the test adopted in Doney v The Queen:
"[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
The test in Doney stands in contrast to the test in M v The Queen that is applied in the determination of whether a verdict is unreasonable or unsafe and unsatisfactory:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
Although consideration of the "interests of justice" may accommodate or require the application of this more stringent standard of review, at the first stage of the analysis consideration of the sufficiency of the evidence invokes the lesser standard identified in Doney. Thus, in Peacock v The King, Barton J described the question as being whether the evidence is "capable of the inference of guilt, albeit some other inference or theory be possible [and, if so] it is for the jury ... to say ... whether the inference ... overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds". In Director of Public Prosecutions (Nauru) v Fowler, Gibbs CJ, Murphy, Wilson, Dawson and Deane JJ posed the question in terms of whether "the admissible evidence given at the original trial was sufficiently cogent to justify a conviction". In Spies v The Queen, Gaudron, McHugh, Gummow and Hayne JJ stated the test in terms of whether "there is evidence to support the charge".
Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution's case or that supports the accused's case. That requires consideration of the evidence.
The evidence
i) Admissions and matters not in dispute
At trial, the respondents defended the charges on a narrow basis. They did not dispute (and, in the case of A2 and Ms Magennis, formally admitted in their Notices of Defence Response) that A2 was present in a room with the complainants on the relevant occasions while Ms Magennis examined and made contact with the complainants' genitalia during a "symbolic ceremony" that involved the placing of forceps on the vulva (not the clitoris) of the complainants without cutting them. This procedure was described as "skin sniffing the steel". Though Mr Vaziri was not present during the procedures, his defence was, in effect, common to that of A2 and Ms Magennis, because he did not dispute that he had assisted in covering up their actions.
ii) C1's evidence
C1's evidence was adduced in the form of a recorded interview conducted by two members of the Joint Investigation Response Team ("the JIRT") on 29 August 2012 and supplemented by her oral testimony at trial. During the interview, C1 was asked about "khatana [sic]". When asked what the procedure involved, she stated that "[w]ell, they give um, a little cut there", by which she meant "[i]n your private part". It is, as the Court of Criminal Appeal noted, to be observed that the concept of "cutting" was first introduced by the interviewer, as was the concept of "cutting to the private part". Nevertheless, C1 explained that she knew what "khatana" was "[b]ecause it's happened to me". She said that when she was seven years old she had had her private part cut by an unknown female at her grandmother's sister's house. She told investigators that "my mum tells me not to go around telling everyone that much".
At trial, C1 said that during the procedure she had seen a "silver toolish thing" and that it looked a bit like scissors: "it had sort of a point, a roundish stick sort of thing and two finger-holes I think. I'm not sure." C1 drew the implement and the drawing was tendered on the trial as Exhibit B.
Thereafter, C1 was told to close her eyes. Consequently, she did not see the procedure occur. But she knew something had happened because she felt "a bit of pain and then a weird sort of feeling" in her private parts. She was unsure of the nature of the pain, describing it as like "a pinching or a cutting, I'm not sure", and, in re-examination, she said that "I don't really think it was a pinching, it just felt a bit like it. ... I'm not completely sure if it was cut, although it is most likely it was cut". There was no lasting pain. She saw no blood at that, or any other, time.
C1 also stated that while the procedure was being performed there were a number of women, including A2 (her mother), A5 (her paternal grandmother), A3 (her paternal grandaunt) and another unknown female (on the Crown case, Ms Magennis) surrounding her to "calm [her] down".
iii) C2's evidence
Like C1, C2's evidence was adduced in the form of a recorded interview conducted by the same two members of the JIRT on 29 August 2012 and supplemented by her oral testimony at trial. C2 had an intellectual disability and, as we have observed, on that and other bases the Court of Criminal Appeal allowed a ground of appeal alleging that she was not competent to give sworn evidence.
Nevertheless, in her JIRT interview C2 was asked the (admittedly leading) question, "[w]e heard that you had had a cut on your private parts. Is that true?" C2 answered, "[y]es". When further questioned, C2 told the JIRT members that she remembered an occasion when she had been lying down on cushions in her parents' home and felt "[h]urting". When asked where it hurt, she said "[i]n my bottom". C2 was unable to identify "the private part" on a "body sketch", tendered as Exhibit C. The Court of Criminal Appeal described the sketch as showing that the words "tummy" and "knee" were written with an arrow pointing to those parts of the body. This Court has not been provided with a copy of that exhibit.
When asked whether she knew what khatna was, C2 indicated that she did not know. When asked who else was home during the procedure, C2 said, "I don't want to tell you".
C1 also provided some limited evidence regarding the alleged offence against C2. She said that the last time she saw the woman who had performed the procedure on her was "when she had to do that thing to my sister".
iv) Evidence of conversations recorded by listening device and telephone intercepts
There was a large body of covertly recorded evidence of conversations between A2, Ms Magennis, Mr Vaziri and other, uncharged persons such as A2's husband (A1), A1's aunt (A3), and a religious authority. In brief, it consisted of evidence that was said to demonstrate that the respondents had an awareness of the practice of khatna and that they understood it to involve cutting; and evidence said to demonstrate a consciousness of guilt (most notably concerning the "Africa checking story" and A2's admonishment of the complainants, following their interviews, for revealing "a big secret"). It will be necessary to say something more of that evidence later in these reasons.
v) Medical evidence
As noted earlier, expert medical evidence was given by Dr Marks, who clinically examined C1 and C2 in 2012, and Professors Jenkins and Grover, who interpreted Dr Marks' clinical findings and made other relevant observations. In substance, their evidence fell into three broad categories: evidence interpreting Dr Marks' inability to visualise the clitoral glans (the possibility of excision of the glans versus innocent possibilities, such as difficulty visualising the glans for ordinary developmental reasons); evidence regarding the degree of pain, bleeding and scarring one would anticipate if the clitoris or prepuce had been cut; and evidence regarding the anatomy of the clitoris and, specifically, whether the prepuce forms a part of the clitoris.
vi) The evidence of Dr X
Dr X was a retired professor who had taught in Mumbai for 36 years in the areas of psychology and women's studies. Her evidence regarding the practice of female genital mutilation within the Dawoodi Bohra community was based on a combination of academic research, interviews with participants in female genital mutilation procedures, and personal knowledge derived from her membership of the Dawoodi Bohra community and the experience of having been the victim of female genital mutilation as a child. She gave evidence to the effect that the practice of khatna within the Dawoodi Bohra community in India involved the excision of a part of the clitoris or prepuce and that the practice within that community was "static", in the sense that it neither changed over time nor varied depending on the location of the community. As has been seen, the Court of Criminal Appeal partially upheld a ground concerning the admissibility of Dr X's evidence, and the appellant did not seek to impugn that holding in this Court. That eliminates the capacity of Dr X's evidence to prove what procedure was conducted.
vii) Miscellaneous exculpatory evidence
The Court of Criminal Appeal noted the existence of numerous items of, at least arguably, exculpatory evidence. They included representations recorded in the surveillance material which were consistent with discussion by the respondents of a symbolic ceremony; evidence of A3, that on the day of C1's procedure A2 had told her she wanted to conduct a "symbolic khatna" and that A3 had heard Ms Magennis tell C1 words to the effect of, "it won't hurt you. I'm just going to touch you"; and evidence of Ms Magennis, who positively asserted the defence hypothesis. In answer to C1's evidence of experiencing some transient pain during the ceremony, Ms Magennis gave evidence that she, Ms Magennis, was an insulin-dependent diabetic, that she had performed the procedure when she had not eaten, that she was, therefore, probably hypoglycaemic, and that her hands had been shaking, so as to suggest in effect that she, Ms Magennis, might have pinched or pressed against C1's genital area, thereby causing pain accidentally.
Evidence sufficient to convict
Taking the prosecution cases in relation to C1 and C2 at their highest, and drawing all inferences most favourable to the Crown, the evidence supports inferences that C1 and C2 were both subjected to a procedure that involved a cut or nick to their clitoris or closely interrelated tissue. A jury would be entitled to accept C1's evidence that she felt pain and that the pain felt most like a cut and did not feel like pinching. So, too, would the jury be entitled to accept C2's evidence that she had experienced pain and, despite her statement that the pain was in her "bottom", to conclude that C2 was describing pain in her genitals. That arises as a rational inference from the combination of A2's and Ms Magennis' admissions that an implement had been placed on that location and the evidence which demonstrated that C2's descriptions of her body parts were imprecise.
It would further be reasonably open to a jury to infer, on balance, that C1 recalled seeing a pair of scissors. Such an inference would rationally be supported by the description C1 gave of the implement in her interview ("a silver toolish thing"); C1's subsequent statement to A1 that "yes, once [the interviewers] asked for scissors ... I saw scissor ... [t]hey do something with scissors?"; and the fact that during the interview no reference had been made to scissors. Those considerations permitted the inference that C1's description was unprompted by anything said by the investigators. If a jury inferred from these or other matters that C1 recalled seeing scissors, it would be rationally open to the jury to accept that C1's recollection was correct.
Furthermore, even if a jury were to take into account evidence which was exculpatory (and for the purposes of this exercise that possibility can be excluded), a rational jury could discount the significance of the medical evidence that there was no visible damage to the relevant body parts on the basis of the medical evidence that "the genital region heals rapidly and very well, typically without leaving a scar", and, therefore, that any injury caused by a cut or a nick might be "not obvious at all". Similarly, a jury could rationally conclude that it was immaterial that neither complainant reported seeing blood: the blood might have been overlooked.
It would also be reasonably open to a jury, on balance, to infer from the body of covertly recorded evidence, including, particularly, the conversations between A1 and A2, and between A1 and A2 and A1's mother and aunt (A5 and A3, respectively), on 29 August 2012, that A2 and A1 had an awareness of the practice of khatna and that they understood that practice to involve circumcision. It would be open to a jury to infer from A2's response to A1's questions on that day ("[i]n us do they cut skin? ... or do they cut the whole clitoris?") that "[n]o they just do a little bit ... just little" that A2 understood circumcision in this context to involve the cutting of the skin of, or tissue closely related to, the clitoris. It would be open to infer from the use of the word "us" that this question and answer concerned, at least, the practice in the local Dawoodi Bohra community, of which A2 and her family were members, if not the practice within A1 and A2's immediate family.
In a similar fashion, the covertly recorded telephone call between A2 and Ms Magennis on 30 August 2012 would be rationally capable of supporting the inference that some minor injury was caused to the complainants' genitals. In substance, that conversation was that when told that the children were going to be examined at Westmead Hospital, Ms Magennis said, "[n]o ... No... Because the way I do no one knows even little bit." She later said, "[i]f they asked. You can say kids are playing on swings, they play in the garden. Graze can happen if they fall". On balance, it is open to infer from the expression "the way I do" (compared to, say, "I didn't do anything"), as well as the reference to a "graze", that Ms Magennis was describing a procedure that involved some minor or transient injury to the genitals which should not be apparent to the examining professionals but, if it were, could be explained on the basis of a playtime injury. Similarly, a jury might rationally conclude that Ms Magennis' reference to there being "no scar or anything there" was more probably premised on an understanding that there had been some injury but that, because of the "way" Ms Magennis had performed the procedure, the injury would not have been long-lasting.
More generally, the jury would be entitled to regard this body of evidence as tending to prove, on balance, that the respondents had lied to the police, encouraged others to do so, or admonished one or other of the complainants for speaking about the procedure, and, in particular, might infer on balance from the evidence that it tended to prove that the respondents had lied regarding their understanding of khatna as a practice that involves cutting, and that the respondents were conscious that they were guilty because the procedures had involved cutting or nicking.
Taken as a whole, these intermediate findings, including, specifically, the fact that C1 and C2 had experienced pain in their genital areas; the fact that A2 had requested that Ms Magennis perform the procedure and had been present during the procedure; the fact that A2 understood khatna "in us" to involve a "little" cut to the clitoris; the evidence of lies, general and specific; and the fact that the recorded statements, which demonstrated A2's understanding of the nature of the practice, occurred in the immediate context of conversations regarding the ongoing police investigation into procedures at that time suspected to have been performed on C1 and C2, would be capable of supporting the rational conclusion beyond reasonable doubt that the procedure performed on C1 and C2 involved a cut or nick.
The matter should be remitted to the Court of Criminal Appeal
In the Court of Criminal Appeal, each of the respondents pressed grounds alleging that the verdicts were unreasonable. Those grounds were allowed but only on the basis that the expression "otherwise mutilates" necessitates that the relevant body part be rendered "imperfect or irreparably damaged in some fashion" and that the word "clitoris" does not include the prepuce. The Court of Criminal Appeal concluded that, upon that construction of the legislation, the verdicts on the s 45(1) counts were unreasonable or unsupported by the evidence.
Given the view which this Court takes of the meaning of "otherwise mutilates" and "clitoris", it now remains to determine whether the jury's verdict was, even so, unreasonable according to the test in M v The Queen. That necessitates a full review of the evidence led at trial, and, allowing for the advantages enjoyed by the jury, the determination of whether there is no reasonable possibility that the complainants' clitorises (or any closely interrelated tissue) were not injured "to any extent".
The judgment of the Court of Criminal Appeal implies that their Honours had doubts about the sufficiency of the evidence to prove the alternative counts. Read in context, those doubts appear as directed to the physical element that an assault charged under s 59 of the Crimes Act occasioned "actual bodily harm". On the question of whether the alleged conduct had occurred, the Court of Criminal Appeal concluded that "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". To so conclude, however, did not require application of the standard of review identified in M v The Queen.
It is neither practical nor appropriate for this Court to undertake a full review of the evidence. It is not practical because this Court does not have access to the whole of the record. The only record of the evidence at trial is that which is contained, in summary form, in the judgments below; and, as has consistently been held in this Court, it is not appropriate for this Court to consider the sufficiency of the evidence when that task has not been undertaken by the court below. In those circumstances, the appropriate order is that each matter be remitted to the Court of Criminal Appeal for determination of Ground 2 of each respondent's appeal to that Court in light of the proper construction of s 45(1)(a).
Orders
These appeals should be allowed and the orders of the Court of Criminal Appeal be set aside. Each matter should be remitted to the Court of Criminal Appeal for determination of Ground 2 of each respondent's appeal to that Court according to law.