KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No S43/2019
THE QUEEN APPELLANT
AND
A2 RESPONDENT
Matter No S44/2019
THE QUEEN APPELLANT
AND
KUBRA MAGENNIS RESPONDENT
Matter No S45/2019
THE QUEEN APPELLANT
AND
SHABBIR MOHAMMEDBHAI VAZIRI RESPONDENT
The Queen v A2 The Queen v Magennis The Queen v Vaziri
[2019] HCA 35
16 October 2019
S43/2019, S44/2019 & S45/2019
ORDER
Matter No S43/2019
1.Appeal allowed.
2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
Matter No S44/2019
1.Appeal allowed.
2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
Matter No S45/2019
1.Appeal allowed.
2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
On appeal from the Supreme Court of New South Wales
Representation
D T Kell SC with E S Jones for the appellant in each matter (instructed by Solicitor for Public Prosecutions (NSW))
H K Dhanji SC with D R Randle for the respondents in S43/2019 and S45/2019 (instructed by Armstrong Legal)
T A Game SC with G E L Huxley for the respondent in S44/2019 (instructed by Armstrong Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v A2 The Queen v Magennis The Queen v Vaziri
Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person" is liable to imprisonment – Where two respondents charged with having "mutilated the clitoris" of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word "mutilate" in context of female genital mutilation means "to injure to any extent" – Where trial judge directed jury that "clitoris" includes "clitoral hood or prepuce" – Whether "otherwise mutilates" should be given ordinary meaning or take account of context of female genital mutilation – Whether "clitoris" includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of "mutilate" and "clitoris".
Appeals – Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v A2 [2019] HCA 35
Case
[2019] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals from the New South Wales Court of Criminal Appeal concerning charges under s 45(1)(a) of the *Crimes Act 1900* (NSW). The respondents were charged with mutilating the clitoris of complainants, with one respondent also charged with assisting in these offences. The defence argued that the procedures performed were merely ritualistic. The central dispute revolved around the interpretation of the terms "mutilates" and "clitoris" within the context of female genital mutilation, and whether the trial judge had misdirected the jury on these points.
The legal issues before the High Court included whether the phrase "otherwise mutilates" in s 45(1)(a) should be interpreted according to its ordinary meaning or in light of the specific context of female genital mutilation. The Court also had to determine whether the definition of "clitoris" as directed by the trial judge, which included the clitoral hood or prepuce, was correct. Furthermore, the Court considered whether the trial judge's directions on the meaning of "mutilate" and "clitoris" constituted a misdirection.
The High Court allowed the appeals, setting aside the orders of the New South Wales Court of Criminal Appeal. The matter was remitted to the Court of Criminal Appeal for redetermination of a specific ground of appeal relating to whether the verdicts were unreasonable or unsupported by the evidence. This indicated that while the appeals were allowed, the ultimate outcome for the respondents would depend on the further consideration of this ground by the lower appellate court.
Orders
Orders of the court
Matter No S43/2019
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
Matter No S44/2019
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
Matter No S45/2019
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.
3. Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL CJ
KEANE J
In New South Wales, the dissenting reasoning of Viscount Finlay in Crane must apply: "we must now look only to the provisions of the present Act if there is anything that requires to be set right"[267]. Indeed, the New South Wales Parliament was cognisant that this would be the case. During debate, one member, Mr Garland KC, after referring to the power to grant a new trial after a mistrial, said that he supported "the proposal that the Appeal Court in their wisdom, when they consider justice would be best served by granting a new trial, shall have power to grant it"[268].[267]Crane v Director of Public Prosecutions [1921] 2 AC 299 at 318.[268]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 5 December 1911 at 2312.Conclusion For these reasons, in addition to those of Kiefel CJ and Keane J and those of Nettle and Gordon JJ, I agree with the orders proposed by Kiefel CJ and Keane J.