R v A2; R v KM; R v Vaziri (No. 2)

[2015] NSWSC 1221

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221
Hearing dates:	19 August 2015
Decision date:	27 August 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	For the reasons expressed in this judgment, the jury should be directed at the trial of the Accused persons, with respect to the word “mutilates” in s.45(1)(a) Crimes Act 1900, in accordance with the submission advanced by the Crown. With respect to directions to be given concerning the term “clitoris” in the section, subject to any further submission, I have in mind directing the jury that the word “clitoris” in s.45(1)(a) is capable of including the prepuce of the clitoris.
Catchwords:	CRIMINAL LAW – female genital mutilation – persons charged with mutilating clitoris of child contrary to s.45(1)(a) Crimes Act 1900 – consideration of directions to be given to jury concerning elements of the offence – phrase “excises, infibulates or otherwise mutilates” in s.45(1)(a) – meaning of the word “mutilates” – Crown submits that includes any injury to any extent for non-medical reasons – Defence submits that requires cutting off, destroying or altering radically – meaning to be construed by the context of the section and the purpose or object of the legislation – s.45 intended to prohibit female genital mutilation in all its forms where injury results –construction which serves to promote the purpose or object of s. 45 to be favoured – consideration of extrinsic material – application of ss.33 and 34 Interpretation Act 1987 – jury to be directed that “mutilates” in s.45 extends to any injury for non-medical purposes – proper construction of “clitoris” in s. 45 Crimes Act 1900 – whether “clitoris” includes the prepuce or clitoral hood
Legislation Cited:	Australian Securities and Investment Commission Act 2001 (Cth) Crimes (Female General Mutilation) Amendment Act 1994 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Female Genital Mutilation) Act 2014 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Criminal Procedure Act 1986 Evidence Act 1995 Family Law Act 1975 (Cth) Female Genital Mutilation Act 2003 (UK) Interpretation Act 1987 Prohibition of Female Genital Mutilation (Scotland) Act 2005 Surveillance Devices Act 2008 Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited:	Agius v R [2011] NSWCCA 119; 80 NSWLR 486 Crowe v Graham [1968] HCA 6; 121 CLR 375 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 Doney v The Queen [1990] HCA 51; 171 CLR 207 Falconer v Pedersen [1974] VR 185 House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 In the Matter of B and G (Children) (No. 2) v Leeds City Council and Ors [2015] EWFC 3 McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 Milne v The Queen [2014] HCA 4; 252 CLR 149 Monis v The Queen [2013] HCA 4; 249 CLR 92 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Purdon v Dittmar (1972) 1 NSWLR 94 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 Wilson v Anderson [2002] HCA 29; 213 CLR 401
Texts Cited:	Pearce and Geddes, “Statutory Interpretation in Australia”, Lexis Nexis Butterworths, 8th Edn, 2014   Hughes, “Female Genital Mutilation: The Complementary Roles of Education and Legislation in Combating the Practice in Australia” (1995) 3 Journal of Law and Medicine 202
Category:	Procedural and other rulings
Parties:	Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused)
Representation:	Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM)   Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused)
File Number(s):	2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri)
Publication restriction:	---

Judgment

1. JOHNSON J: The Accused, A2, KM and Shabbir Mohammedbhai Vaziri, have each pleaded not guilty to charges, including allegations of female genital mutilation (“FGM”) contrary to s.45(1)(a) Crimes Act 1900 and assault occasioning actual bodily harm under s.59 of that Act.

2. A number of pretrial applications were identified and the Court has been in the process of hearing and determining those applications. The parties formed the view that a particular issue was of significance to the proceedings generally and requested that it be dealt with as a matter of priority. The Court acceded to this request.

The Present Issue

3. This issue concerns the directions to be given to the jury, in the circumstances of the present case, concerning the meaning of certain words in s.45 Crimes Act 1900. In particular, attention was focused upon the meaning of the words “otherwise mutilates” in s.45(1).

4. In the circumstances of this case, the Court was satisfied that it was appropriate to deal with this topic as a pretrial issue. In doing so, the Court is not considering an application for the exceptional remedy of a permanent stay based upon a claim that the charges are foredoomed to fail: Agius v R [2011] NSWCCA 119; 80 NSWLR 486 at 490 [15]-[19]. Nor is the Court engaging in a process of fact finding in advance of the trial or seeking to determine whether the Crown has a case that should be left to a jury: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215.

5. Rather, the Court is construing relevant words in s.45, a legal function, with some reference to evidence to be adduced in the trial to provide some context, meaning and understanding to the elements of the s.45 offence in this case. This is being done to aid the formulation of directions to be given to a jury concerning the elements of the offence.

6. I will refer to the charges and allegations against the Accused persons as contained in the Crown Case Statement (“CCS”) before moving to the terms of s.45, the submissions made concerning its proper construction and my decision on the construction questions and proposed directions to be given to a jury at the trial of the Accused persons.

The Charges Against the Accused Persons

7. KM is charged with the following offences:

1. Count 1 - Between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900.

2. Count 2 - In the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

3. Count 3 - Between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900.

4. Count 4 - In the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

8. A2 is charged with the following offences:

1. Count 5 - Between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900.

2. Count 6 - In the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

3. Count 7 - Between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900;

4. Count 8 - In the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.

9. Mr Vaziri is charged with the following offences:

1. Count 9 - Between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission of the serious indictable offence of mutilating the clitoris of C1 contrary to s.45(1)(a) and s.347 Crimes Act 1900.

2. Count 10 - In the alternative, between the same dates and at the same place, being an accessory after the fact to the commission of the serious indictable offence of, whilst in company, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900.

3. Count 11 - Between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission by A2 and KM of the serious indictable offence of mutilating the clitoris of C2 contrary to s.45(1)(a) and s.347 Crimes Act 1900;

4. Count 12 - In the alternative, between the same dates and at the same place, being an accessory after the fact to the commission by A2 and KM of the serious indictable offence of, whilst in company, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900.

A Short Introduction to Relevant Persons and Events Drawn from the CCS

10. The Accused in this matter are:

1. A2, the mother of C1 and C2;

2. KM, a retired midwife who, on the Crown case, conducted the FGM procedures; and

3. Mr Vaziri, the highest Dawoodi Bohra (sometimes described as Daudi Bohra) authority in Sydney, who preaches and teaches at a mosque at Auburn.

11. The Accused are members of the Dawoodi Bohra community. The Dawoodi Bohra community is a world-wide subsect of Shia Islam. “Khatna” is a term used within the community to describe circumcision.

12. On 19 July 2012, a report was received by the Department of Family and Community Services stating that a procedure amounting to FGM had been performed on a child in the Dawoodi Bohra community.

13. Thereafter, an investigation was undertaken in which C1 and C2 were spoken to in recorded interviews.

14. C1 was born on 19 October 2003. It is the Crown case that FGM was performed upon C1 between October 2009 and August 2012.

15. C2 was born on 26 October 2005. It is the Crown case that FGM was performed upon C2 between January 2012 and August 2012.

16. It is the Crown case that A2 was present during the FGM procedure conducted by KM on each of the girls, and that she encouraged KM to perform the FGM procedures. The Crown contends that A2 is liable for the FGM procedure conducted on her daughters as she was an accessory before the fact, a principal in the second degree and a party to a joint criminal enterprise with KM.

17. It is the Crown case that KM performed the FGM procedure on each of the girls and is a principal in the first degree.

18. The Crown contends that Mr Vaziri encouraged witnesses to lie in their police interviews and encouraged members of the community to tell Police that they did not believe in or practise female circumcision. On the Crown case, such actions were performed, directly or indirectly, to assist A2 and KM in avoiding police detection. As such, the Crown contends that Mr Vaziri was an accessory after the fact to the offences of A2 and KM.

An Extended Account of the Crown Case Against the Accused Persons

19. It is appropriate to set out, in some detail, the case against the Accused persons, drawn principally from the CCS. This will serve to place the Crown allegations in context. Some reference will also be made to proposed medical evidence. Counsel referred to aspects of this proposed evidence in submissions made on the present statutory construction issue.

20. The CCS recites the circumstances in which an investigation of the Accused persons commenced in July 2012 and steps taken to progress the investigation, including interviews and the use of surveillance device warrants and telephone interception warrants.

Charging of the Accused Persons

21. On 9 September 2012, A2 participated in interviews with Police and was charged with offences under s.45 Crimes Act 1900.

22. On 13 September 2012, KM was charged with two counts under s.45 Crimes Act 1900. She exercised her right to silence and did not participate in an interview.

23. On 13 September 2012, Mr Vaziri participated in an interview with Police and was charged with two counts of being an accessory after the fact to FGM contrary to s.45 Crimes Act 1900.

24. The CCS recites the interviewing of other persons, some of whom were charged with charges being later withdrawn or discharged at committal proceedings. It is not necessary to refer to these features in this judgment.

The Alleged FGM Procedures on C1 and C2

25. The CCS (paragraphs 16-31) summarises the Crown allegations with respect to the FGM procedures.

The Account of C1

26. On 29 August 2012, C1 (born 19 October 2003) was interviewed at her school by Detective Senior Constable Christine McDonald and a FACS case worker, Alison Wishart. No other person was present during the videotaped interview. C1 was eight years and 10 months old at the time. (A DVD recording of this interview is a pretrial exhibit, Exhibit PTF, as is a transcript of the interview, Exhibit PTA, Tab 4).

27. During her interview, C1 explained her knowledge of the term “Khatna”. She stated that “Khatna” was when “they give you a little cut down there”. She explained that she knew what “Khatna” was “because it’s happened to [her]”, detailing that when she was seven years old, she had her private part cut by an unknown female at her grandmother’s house.

28. C1 recalled being taken into a bedroom and placed on to a bed. She described that, before the procedure took place, she was “nervous” and was told to “imagine a place” she liked. C1 chose to picture herself as a “princess in a garden”.

29. C1 told Police that “it hurt” when her “private part [was] cut”. The CCS indicates that it is unknown whether C1 was anaesthetised during the procedure, however she recalled opening her eyes stating that “because of imagining the garden I felt a bit funny and I felt I was on a bed in the garden with them all around but I shook my head a bit”. She also stated that she “felt happy because it was over”.

30. C1 also stated that whilst this procedure occurred there were a number of women, including her mother, A2, A5 (her paternal grandmother), A3 (her paternal grandaunt) and another unknown female surrounding her to “calm [her] down”. On the Crown case, the unknown female was KM.

31. Following the procedure, C1 recalled being told to drink lots of water and being handed a glass of lemonade before being taken to have a shower. She remembered being “scared” of the shower, as she thought it was going to hurt.

32. During her interview, C1 also provided Police with information regarding the procedure being conducted on her younger sister, C2. She stated that the last time she saw the person who performed the procedure on her was “when she had to do that thing to my sister”.

33. When questioned further about C2’s procedure, C1 believed it had occurred “some time this year” (2012). She stated that she had travelled to Auburn with her mother and her sisters where they met the unknown woman who had previously performed the procedure on her. C1 then had to travel with the unknown woman, directing her back to the family home in Baulkham Hills.

34. C1 recalled watching a movie downstairs in her home with C2, and a male child who accompanied the unknown lady (said to be the grandson of KM). Whilst they were watching the movie, A2 called out for C2 to come upstairs. C1 then saw C2 go upstairs, where she believes she was with the unknown female, her mother and A4 (her paternal aunt).

35. I have overruled an objection by C1 to giving evidence against her mother, A2, under s.18 Evidence Act 1995. Accordingly, the evidence of C1 will be before a jury at the forthcoming trial.

The Account of C2

36. C2 (born 26 October 2005) was also interviewed at her school by Detective Senior Constable McDonald and Ms Wishart on 29 August 2012. She was six years and 10 months old at that time. (A DVD recording of this interview is a pretrial exhibit, Exhibit PTB, as is a transcript of the interview, Exhibit PTA, Tab 5).

37. During her interview, C2 indicated that a procedure was conducted on her, in her parents’ room, in her home in Baulkham Hills. She recalled lying down on a white cushion and stated that she “felt hurting in her bottom”.

38. C2 could not particularise who was in the room at the time the procedure took place. She also could not state who conducted the procedure, only saying that it was “a woman”.

39. After the procedure, C2 recalls speaking to her father, A1, who told her “it’s OK”. C2 also believed she spoke to her sister about the procedure, but she could not recall what was said.

40. I have held that C2 is competent to give sworn evidence and have overruled an objection by C2 to giving evidence against her mother, A2, under s.18 Evidence Act 1995. Accordingly, the evidence of C2 will be before a jury at the forthcoming trial.

41. It is the Crown case that C2’s FGM procedure took place during the July 2012 winter school holidays. During this time, call charge records show that A2 contacted KM seven times between 26 June and 18 July 2012.

Medical Examination of C1 and C2 by Dr Susan Marks

42. On 3 September 2012, C1 and C2 were examined by Dr Susan Marks from the Child Protection Unit at Westmead Children’s Hospital. Dr Marks was unable to confirm or deny whether the girls had been circumcised. She has reported that she cannot exclude that a Type 1 or Type 4 FGM procedure (under the World Health Organisation (“WHO”) guidelines) (see [204] below) had been conducted, as she could not visualise the head of the clitoris on either child.

43. Dr Marks asserts that if there had been a small cut to the head of the clitoris, it would have been painful at the time, but would have healed in three to five days. Dr Marks also confirmed that any cut or nick to the clitoris would include, at the very minimum, the removal of skin cells.

44. In reports prepared for these proceedings (part Exhibit PTJ), Dr Marks said that the procedures said to have been carried out on C1 and C2 could have included:

1. a cut or nick to any part of the clitoris, including the clitoral hood (prepuce), clitoral head (glans), including pricking or piercing, and/or

2. the removal of part of the clitoral head (glans).

45. According to the CCS (paragraph 31), a cultural expert and member of the Dawoodi Bohra community, states that “the practice of Khatna [within the Dawoodi Bohra community] is a small cut to the tip of the clitoris and the chances of scarring would be slim”. She asserts that it is only when Dawoodi Bohra women get older that they start to realise the problems “regarding the sensitivity and hyper sensitivity” caused by their circumcision. The admissibility of the evidence of this witness is presently under challenge.

Statements Allegedly Made by A2 in Recorded Conversations and Police Investigation (CCS, paragraphs 32-48)

46. At 2.18 pm on 29 August 2012, Ms Wishart advised A2 via telephone that C1 and C2 had been interviewed. At that time, Ms Wishart arranged for A1 and A2 to attend the Parramatta Child Abuse Squad at 4.30 pm that day for a voluntary interview with herself and Detective Senior Constable McDonald.

47. When A2 collected C1 and C2 from school on 29 August 2012, she spoke to the children about their interviews. When C1 explained what she told the Police, A2 responded "yes ok. You told them everything. I told you not to say, any one. 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". This conversation was recorded by the surveillance device issued under the Surveillance Devices Act 2008 that had been placed in the vehicle being driven by A2 at that time.

48. Later on in the afternoon, another conversation took place between A1, A2, C1 and C2 whilst the family were travelling in a different vehicle. During this conversation (also recorded under warrant), A1 tried to convince C1 that she had not been “cut” to which C1 responded “yes, once they asked for scissors … I saw scissors … they do something with scissors'? She asked me don't we do with scissors … do not we do with scissors with something?”.

46. After dropping C1 and C2 with a carer, A1 and A2 drove to the Parramatta Child Abuse Squad. Whilst they were still in the vehicle on their way to the interview, A1 told A2, “we can say that, yes we called this lady for check up to make sure that they haven't had anything done. Say this way, that we called to check them if anything is being done, because they go to Africa and is been done there. We go to India and Africa and we always do up there. … When they came for check up, we called all the family members and she knows that lady as she is nurse. She is used to, and we normally the ladies don't check children as it is not our subject the children …”.

47. Once at the Parramatta Child Abuse Squad, A1 and A2 were interviewed separately by Detective Senior Constable McDonald and Ms Wishart. The interviews were not electronically recorded, rather contemporaneous notes were made by Detective Senior Constable McDonald. No one else was present during either interview

48. Whilst A1 was being interviewed, A2 contacted her mother by telephone, alerting her of the situation with the Police. The conversation was recorded by way of telephone interception warrant under the Telecommunications (Interception and Access) Act 1979 (Cth). Whilst talking to her mother, A2 stated, "Our daughters circum-, circumcision, circumcised, don’t we. About that, to us do you see, how now become a government matter over here, yes" and “Caused to perform for our daughter, didn’t? For the seven even years old!".

49. All references hereafter to conversations relate to conversations recorded by way of telephone interception warrant or surveillance device warrant. I note that recorded conversations are said to have involved the use of a mixture of languages, including Gujarati and English.

50. When A1’s interview was finished, he returned to the waiting room and had a conversation with A2. During this conversation, A1 again discussed with A2 what she should and should not say to the Police, stating, "Do not tell them we got information that [C1] and [C2]’s circumcision have been done here" and, "If they ask you, tell them, you do not know what happened in it". He enquired whether C1’s procedure took place “last year” and told A2 to tell Police that his mother had told them to have the girls circumcised but they refused. A1 also asked, “in us do they cut the skin … or do they cut the whole clitoris?”. To which A2 responded “No … they just do a little bit … just little”.

51. When A2 was interviewed by Police, she indicated that she was aware that the practice of FGM was illegal in Australia, and that she was aware that some of her friends and family had had the procedure performed upon them in Africa. She explained the different types of FGM and detailed that, in the Dawoodi Bohra community, the practice is only for a “bit of skin [to be] removed”. She stated that she had discussed the practice with her daughters whilst they were holidaying in Africa in 2012, but stated that she did not want her daughters circumcised. When A2 was asked the reason why her daughters would say they have been cut on their private parts, she stated, “I think it’s just the checking that they are getting confused” and that “[we] got them checked at different times by [KM]”.'

52. A2 indicated that C1 was examined around the first term school holidays in April 2012 and C2 during the winter school holidays in July 2012. She said that C1 was examined by a female person known as “[KM]” at their family home in Baulkham Hills. She stated that A4 and A5 were also present during the examination. A2 stated that when C2 was examined, the persons present were believed to be A3, A5 and A6. A2 also indicated that during an examination, the underpants are removed and it is “just having a check down there to make sure everything is ok down there”. A2 recalled that KM said, "everything's alright", which made her believe her daughters had not been circumcised.

53. After their interview on 29 August 2012, A2 telephoned KM. KM had been made aware of the police investigation earlier in the day by A1. During the conversation, A2 told KM that C1 explained everything to Police - that she had been circumcised and that her procedure had occurred in Australia. She stated that C2 did not know anything about her procedure. A2 also stated that she told Police that if the children had been circumcised, the procedure would have occurred in Africa. The two women then discussed how the Police found out that C1 and C2 had been circumcised, speculating that someone from within the community must have told them.

54. Following her conversation with KM, A2 called her mother and they discussed what was told to Police. A2 stated she told Police the procedure could have taken place in Africa, when C1 and C2 were with their grandparents. She also explained that the Police went to C1 and C2’s school and "[C1] in fact told everything". Upon hearing this, A2’s mother stated, “Had you not taught [C1] … Had you not taught [C1] in order that would not speak?" and A2 responded "had taught, but these people of ours, those people, in fact are trained, wouldn’t be, in the matter causing the information to be taken out from all”.

55. On 30 August 2012, A2 telephoned A3 and explained the police investigation. During the conversation, A2 stated "We got [C1], [C2] circumcised didn't we … first time happened at yours and the second time was here only. Named mummy, … and all”. She also informed A3 of the story she must tell if questioned by the Police explaining, "if any questions arise at all, you are just to say that 'yes, we were there ... it did happen, but just checking occurred'. And I haven't said yours that it happened at your house; I said that you were at our house and happened in this year. Now, I slightly, that is a little untrue story, now, knowledge, whether I will later clarify or not, with that one”.

56. On the same morning, A2 had another conversation with both C1 and C2 whilst they were driving in the Toyota motor vehicle. During the conversation, she tried to find out how the Police knew what had happened, stating, "we just want to know, that how they came to know about it. We are just checking that you haven't said it by mistake to any friend or teacher”.

57. After the conversation referred to in the two preceding paragraphs, A2 telephoned A1. During the conversation, A2 stated C1 told Police that, "We performed it in Wollongong” and that she has phoned A3 to inform her of the investigation. She explained that she told A3 that they have to "save Aunty [KM]" and that she is only to tell Police "[KM] has just checked everything … if anything would have happened, it has happened in Africa”. The couple also discussed that they did not tell Police that anything occurred at A3’s home. They agreed that they would eventually have to tell the Police an examination occurred at A3’s home because C1 had already told them that. A2 also stated, "If we all will remain together, those people do not have an evidence of any kind to incriminate”.

58. On 4 September 2012, the day after C1 and C2 were examined medically by Dr Marks, A2 received a telephone call from KM. It is apparent from the conversation that the women believed that the examination of C1 and C2 by Dr Marks went well (the results of this examination are mentioned at [42]-[43] above). KM stated to A2, "then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]”. A2 explained that the case was not closed and there would be an ongoing investigation by the Police and FACS separately, however she believed that without any physical evidence, the Police would not be able to take the matter further. At the end of the conversation, KM told A2, "Especially now do explain to [C1] that if they ask anything all … in the school … .just to say as this that, ’I do not have the knowledge, call my mother, the matter is finished'”.

59. During this conversation, A2 and KM also speculated about how the Police could have found out about the procedures. KM suggested A4 told someone stating, “[A7] tells me 'mummy' ummm [A4] is certainly quite friendly with everything in the mosque ... perhaps ... she could have uttered by mistake because [she] trusts everyone instantly, all her friends ... She is not of a type who would speak... although she was there’”.

60. On 7 September 2012, A2 was arrested and charged with two counts of FGM. At the police station, A2 participated in an ERISP during which she stated that she had a very limited knowledge of FGM, as she had only heard about the topic in newspapers and during conversations with her friends and family who had had the procedure performed on them in Africa. A2 asserted her belief that C1 and C2 had not been circumcised, and reiterated that they must have become confused with the examination conducted on them by KM. She detailed that C1’s examination occurred “a couple years back” after a previous trip to Africa in 2008. C1’s examination was said to have occurred at A3’s house and C2’s at her own house. A2 stated that she had had C1 and C2 examined because, at their age, there was a risk of them having been circumcised when they were Africa. A2 did not adopt what she had previously stated in her interview on 29 August 2012 in respect of the “Khatna” procedure.

Statements Allegedly Made by KM in Recorded Conversations and Police Investigations (CCS, paragraphs 49-59)

64. At 3.20 pm on 29 August 2012, KM received a telephone call from A1, informing her that C1 and C2 had informed the Police about “Khatna”. KM became concerned that her name had been given to Police and asked if they could just tell Police that she only checked the children and “that was it”, commenting “there is no scar or anything there”. A1 confirmed that they would tell Police that C1 and C2 were examined in case they had been circumcised in Africa.

65. At 4.08 pm on the same day, KM contacted a Dawoodi Bohra Sheikh, Elder Jaffar. During this conversation, she stated, "Over here, we, urn, I am quite in trouble and urn I do not have the information if the Elder Brother, The Elder Brother Khusar has told you anything or not because I do not want to go to gaol at my age. Now, please ask the Elder Brother, what does here, because this umm, in fact, I, with the Lord's permission, used to pay attention to the age of seven years of the female children. Now, this one girl has spoken something to someone in the school. Now, then, have called that one's parents to the Police. Then the girl's parents will give my name; I don't have the knowledge if the girl has given my name". She repeated this sentiment again during the conversation when she stated "I, with the Lords' consent, I, for many years, used to pay attention to a seven year old girl. You understand what I say, don't you?".

66. At 5.50 pm, KM received a telephone call from A2, informing her how the interview with Police went. During the conversation, KM questioned whether C1 told Police "that it was done to her”, and A2 responded “yes”. KM informed A2 of the conversation she had with Elder Jaffar, explaining her belief that “this matter is of our community”. She also stated that she is “suddenly worried now" and too old to have to sit in gaol.

67. Between 7.35 pm and 8.28 pm, KM had a number of telephone conversations with her husband, PM, and her daughter, A7. During these conversations, KM explained that the Police were investigating the circumcision of C1 and C2. She stated that someone had made a complaint about her and that the Police must have a solid tip or they would not have interviewed the children. KM also explained that this was the first that her husband would have heard of the situation.

68. At 8.48 pm, KM and A7 had another conversation. During this conversation, A7 stated “I think whoever has done a report, it's; I mean, either it's been done against them [the As] or against you. But if it was against you then you've got to ask yourself that ‘wouldn't they have not [done] it some time ago?’ because you know; obviously; it's not; it's not the first time what you have done”.

69. On 30 August 2012, KM was contacted by Mr Vaziri. Mr Vaziri stated that “35,000” had been sanctioned for her, and that she must complete a form to send to London in order to receive a cheque. During this conversation, KM stated that she was really scared, so scared in fact that she rang Elder Jaffar and told him that she did not want to go to gaol.

70. After the medical examination of C1 and C2 on 3 September 2012, KM had a conversation with A7 and PM. During this conversation, the following exchange took place between the two women:

KM stated:   “She said that everything is well, for both of them [C1 and C2]”.

A7 stated: “Yeah, thank goodness ... now mum, don't do this again”.

KM stated: “No, No, I am not going to do anything now”.

A7 stated: “Yeah, now just refused, if anyone asks. Just say ‘Now my hands are not good, and'”

KM stated: “Yes, I was telling these people also the same thing that ‘I shake a lot; my hands and I won't do it’. But they said ‘no please do it'. Anyway, whatever happened has happened. That's it, I am not going to do it now … now you see, those people will keep a perfectly close on this because they have warned them”.

71. On 4 September 2012, KM telephoned A2. KM stated to A2, “Then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]". At the end of the conversation, KM told A2, “Especially now do explain to [C1] that if they ask anything all … in the school just to say as this that, ‘I do not have the knowledge, call my mother’ the matter is finished”. KM also speculated that A4 “could have uttered by mistake because [she] trusts everyone instantly all her friends … she is not of a type who would speak … although she was there”.

72. On 10 September 2012, KM was contacted by A1 who informed her that the Police were attending the homes of community members, giving them pamphlets and asking them questions about female circumcision. A1 repeated the story that must be told to Police stating that everyone has been informed to say “no comment” if they are asked about the day of the procedure, and that KM only came to check C1 and C2. When KM was asked what she will say about using an instrument during the examination, she stated, “I will just say - that there was nothing my hand. Certainly, by no means I would just [do] something [to] all with the hand, hmmm, do that in this way to the lower [part] of someone else's daughter? Indeed, I look hmm, examined to a little extent by opening the cervix just in this way with the forceps”.

73. On 13 September 2012, KM was arrested by Police. At the police station, she did not wish to participate in an interview.

74. At 2.53 pm on 13 September 2012, KM telephoned A1 and informed him of her arrest. KM told A1 that she did not tell Police anything and wanted to confirm everyone “maintained one story only …that you invited me merely to examine”.

Statements Allegedly Made by Mr Vaziri in Recorded Conversations and Police Investigations (CCS, paragraphs 60-71)

75. At 3.04 pm on 29 August 2012, A1 telephoned Mr Vaziri, informing him that C1 and C2 had told the Police about Khatna. A1 told Mr Vaziri, “Now it seem [C1] has already told them everything circumcisions-kharanat has happened”. He also stated that the Police had requested an interview with both himself and A2. When asked by A1, Mr Vaziri agreed that the practice of Khatna was illegal in Australia. A1 asked Mr Vaziri what to tell the Police. Mr Vaziri stated, "This is my thought. Tell that ‘In fact, we had gone in Milad and we had left at our neighbours, who, who has traveller’s lodge over here and then do not have the knowledge as to what happened’”.

76. At 6.18 pm on the same day, A1 telephoned Mr Vaziri again, informing him that the Police had been told that any circumcision on C1 and C2 must have taken place in Africa and that a lady was only called to examine the children, to verify that they had not been circumcised. A1 also told Mr Vaziri that female circumcision is illegal in Australia and the Police want to have C1 and C2 examined. Upon hearing this, Mr Vaziri advised A1 to seek legal advice. He also stated, "Brother only one thing. Always keep providing the same oral testimony that you have said. Then; change in it; don't change it … Don't introduce any change in that nothing at all, not even a little". During this conversation, A1 also advised that C1's circumcision was performed at A3’s house and C2's circumcision was performed at his own house. A1 also speculated that KM would be very anxious because she was the person who conducted the circumcisions.

77. On 30 August 2012, Mr Vaziri telephoned KM. During this call, he informed KM that “35,000” had been sanctioned for her, and that in order to receive a cheque she had to complete a form that would be sent to London. During the conversation, KM informed Mr Vaziri that she was very scared about the police investigation and had telephoned another Elder, telling him that she did not want to go to gaol.

78. On 3 September 2012, Mr Vaziri received a telephone call from Hussein Karimjee, a member of the community and a solicitor assisting the A family. Mr Karimjee informed Mr Vaziri that he had spoken to an Elder in London and that a document was being created to outline the community's attitude to FGM. Mr Karimjee instructed Mr Vaziri to tell Police that the community does not agree with or encourage anyone to conduct FGM in Australia or any other country. Additionally, he recommended that KM no longer perform procedures within the community as she was more than likely being watched by Police. Mr Karimjee also warned that no one from the community should go overseas for the purpose of having their daughters circumcised.

79. During his conversation with Mr Karimjee, Mr Vaziri questioned what he should say “according to Sharia”. Mr Karimjee stated that mutilation and circumcision are not written anywhere and it is not encouraged within the community. He reasoned that the procedure performed within the community is so minimal that it cannot be seen as mutilation. Mr Karimjee stated that without further evidence no one would believe the words of an eight-year old, however he also warned that the investigation is continuing and the people within the community needed to be cautious and alert as to what they should and should not tell Police.

80. On 6 September 2012, Mr Karimjee again telephoned Mr Vaziri and the two discussed Mr Vaziri's upcoming interview with Police. Mr Vaziri stated he had been advised by another Elder to be confident in the interview. Mr Karimjee told Mr Vaziri that he should say, as far as he was aware, C1 and C2 were very quiet after they returned from Africa, so KM was engaged to verify that they had not been circumcised. Mr Karimjee informed Mr Vaziri that C1 had already advised Police that many people came to Wollongong when her procedure took place, that scissors were used and that she was in pain for two-to-three days after the procedure. Additionally, Mr Karimjee stated that the medical examination “did not show anything” and therefore Police had no evidence of a procedure taking place. At the end of the conversation, Mr Vaziri asked Mr Karimjee if there were any difficulties in him representing everyone involved, to which Mr Karimjee responded there would be no problem so long as everyone told the same story.

81. At 6.09 pm on 10 September 2012, Mr Vaziri telephoned an unknown female member of the Dawoodi Bohra community. During this phone call, Mr Vaziri advised the unknown female that the Police are going to the houses of community members and asking them questions about female circumcision. The unknown female stated that Police had already been to her house, but she told Police that she did not know the meaning of the work "khatna" and had no idea whether young girls were being circumcised. Mr Vaziri told the unknown female that, if the Police return and ask any further questions, she is to say "I am not saying … mean we do not do it”.

75. At 6.42 pm, Mr Vaziri telephoned a male Dawoodi Bohra community member known as A8. Similarly to the previous call, Mr Vaziri warned A8 that Police are going to the homes of community members and asking them questions about female circumcision. During the conversation, Mr Vaziri told A8, "If someone asking you or your wife this should your answer; 'We do not believe in it’”. Mr Vaziri told A8 to relay the message to his wife whilst he was still on the phone stating the Police "are leaving soon for information". Mr Vaziri also stated, "Which ever country you live, loyal to that country. That what should do”.

76. At 8.57 pm, Mr Vaziri telephoned Mr Karimjee. During this conversation, the two again discussed what Mr Vaziri would tell Police in his interview. Mr Karimjee reiterated that Mr Vaziri was to say he does not teach or believe in female circumcision, warning that Mr Vaziri must repeat the phrase exactly to Police. Mr Vaziri informed Mr Karimjee that the Police had gone to the houses of the community members and handed out pamphlets. He also raised concerns that the Police had found the community website.

77. At 9.50 pm, Mr Vaziri telephoned Mr Karimjee again. During this conversation Mr Vaziri raised concerns that there was no control over the situation. Mr Karimjee told Mr Vaziri there is no reason to worry, stating, "What knowledge do those people have as to Your Honour's plan ... they do not have information as to what Your Honour's plan was". Mr Karimjee repeated his warning that the community will have to take care now, to which Mr Vaziri responded, "Yes exactly, in fact these people also have the information".

78. At 5.20 am on 13 September 2012, police officers attached to the investigation attended the Auburn Mosque and arrested Mr Vaziri. Mr Vaziri was conveyed to Auburn Police Station where he participated in a recorded interview. During the interview, Mr Vaziri stated that he had never heard of FGM, female circumcision or “Khatna” being performed on females. When Mr Vaziri was advised that the [As] had been charged the week prior with committing FGM on their children, he stated they had approached him after being arrested in order to obtain a “blessing” from the 52nd Dai Mutlaq (the highest living Dawoodi Bohra authority, who is based in India). Mr Vaziri then conceded this meant he had heard of FGM prior to walking into the interview room, but this conversation with the As] was, in fact, the first time he had heard of it.

79. Later in his police interview, Mr Vaziri stated the first time he had heard of FGM was 4 days prior when he was handed a pamphlet about it at the mosque. He stated he was completely against FGM and that if he ever found out about it happening in his community, he would report it to Police. Mr Vaziri further stated he never provided advice to the [As], he simply conveyed their request for a blessing to the 52nd Dai Mutlaq. He also stated he is the highest Dawoodi Bohra authority in Sydney, but is not in a position to authorise any ritual involving FGM and explained that the Quran dictates that Muslims must abide by the laws of the land they are living in. When asked if he was aware FGM is illegal in New South Wales, he stated he did not need to know because it had never been an issue for him. He also stated he did not know if the practice was illegal in India and again, had never needed to because he had never even come across it.

The Real Issues in the Trial

87. To place the present statutory construction issue into context, it is helpful to note what appear to be the real issues in the trial.

88. The issues in dispute were touched upon during the pretrial hearing concerning the competence and compellability of C1 and C2. During submissions, I enquired of Mr Sutherland SC, counsel for A2 and Mr Vaziri (PT49-51) (emphasis added):

“HIS HONOUR: The next thing I wanted to raise was an issue arising from the submissions. In the Crown written submissions at para 15 the Crown foreshadowed what the defence case with respect to A2 and KM may be, concerning [C2]. The defence written submissions at paras 6 and 7 - 6 in particular - indicated what the issues at trial will include. Is there an issue in the trial and this is directed to Mr Sutherland and Mr Bouveng what is in issue at trial with respect to the Crown allegation with respect to [C2]? I'm looking at paras 6 and 7 to assist me to understand that.

SUTHERLAND: Your Honour, the Crown submission flows from a discussion in one of the intercepted calls. The fundamental issue at trial will be the proposition that whatever took place involved no damage, injury or other physical intervention falling within the relevant statutory definition.

HIS HONOUR: But is there an issue that something took place?

SUTHERLAND: No.

HIS HONOUR: I'm conscious that the cascading issues which I'm looking at here and will occupy some time relate to the accounts of [C2] and [C1], and the Crown seek to adduce evidence in one way or another of what each of the children said happened at a particular time in a room.

SUTHERLAND: Indeed, yes.

HIS HONOUR: Is there going to be any dispute that each child on separate occasions was in the room with certain people?

SUTHERLAND: No.

HIS HONOUR: And that some contact was made with their body?

SUTHERLAND: No, there will not be a dispute about that, your Honour.

HIS HONOUR: What is the dispute then with respect to [C2], firstly?

SUTHERLAND: What it was that was done.

HIS HONOUR: And with [C1]?

SUTHERLAND: The same.

HIS HONOUR: Is there any issue that A2 was present at the time on each occasion?

SUTHERLAND: I don't believe so, your Honour. The short answer is no.

HIS HONOUR: I don't think it's the Crown case that Mr Vaziri was said to have been present. Is that so?

SUTHERLAND: Correct, your Honour. He's charged as an accessory after the fact.

HIS HONOUR: As an accessory, yes.

SUTHERLAND: I think it can fairly be said not that we want to run off on this tangent at the moment but I think it can fairly be said that the substance of the allegation against him relates to conversations between him and a now Crown witness, an uncharged person, charged previously but discharged at committal, namely, [A1] himself.

HIS HONOUR: That's the father?

SUTHERLAND: Father.

HIS HONOUR: of [C2] and [C1].

SUTHERLAND: And [C1], yes, your Honour.

HIS HONOUR: All right.

SUTHERLAND: Mr Bouveng can speak for himself, but in relation to his client, the issues, I expect, are what is it that happened.

HIS HONOUR: Yes. Well, I might just ask Mr Bouveng. Your client is alleged by the Crown to have been present and to have been the person who undertook the acts in question, I think. That's the Crown case, isn't it, against your client?

BOUVENG: It is.

HIS HONOUR: Is there any issue that your client was present on these occasions?

BOUVENG: There isn't.

HIS HONOUR: What is in issue then with respect to your client and the allegation of [C2]?

BOUVENG: Precisely what Mr Sutherland just indicated on behalf of A2, that is, what is it that was done on those two occasions with [C2] and [C1], and whether or not what was done amounts to the act as raised under s 45 and s 59.

HIS HONOUR: Yes, all right. That assists me just to have an understanding. I know that we're at an early stage but it will assist me to have that understanding.”

89. The Notice of Defence Response under s.143 Criminal Procedure Act 1986, served on behalf of A2 and dated 29 June 2015, stated the nature of her defence in the following way:

“The nature of the accused person’s A2s defence is that she did not commit any of the offences. Specifically, A2 did not act in a criminal enterprise with KM who did not excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of the complainants, nor did KM assault either of the complainants occasioning actual bodily harm.”

90. The Notice stated that A2 proposes to give consent under s.184 Evidence Act 1995 admitting the following matters of fact:

“*   That she was present when KM undertook an examination and symbolic ceremony on [C1] at her request; and

*   That she was present when KM undertook an examination and symbolic ceremony on [C2] at her request.”

91. The Notice of Defence Response dated 29 June 2015 on behalf of KM is to a similar effect. KM’s defence is described in the following way:

“The nature of the accused person KM’s defence is that she did not commit any of the offences. Specifically, KM did not excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of the complainants, nor did she assault either of the complainants occasioning actual bodily harm.”

92. KM’s Notice of Defence Response foreshadowed the following admissions:

“*   That she undertook an examination and symbolic ceremony on [C1] at the request of A2; and

*   That she undertook an examination and symbolic ceremony on [C2] at the request of A2.”

93. The Notice of Defence Response for each Accused person notified, for the purposes of s.143(1)(d) Criminal Procedure Act 1986, the following point of law which was intended to be raised:

“What injury constitutes the legal definition of ‘mutilation’ under s.45, as particularised in the latest indictment filed by the Crown”.

94. The present judgment addresses that point of law, for the purpose identified at the commencement of the judgment (at [3]-[5]).

95. The Notice of Defence Response dated 29 June 2015 for Mr Vaziri includes a denial that he committed the offences and an indication that he does not propose to give any notice of consent under s.184 Evidence Act 1995.

Provisions in the Crimes Act 1900 Concerning the Prohibition of FGM

Enactment of s.45 in 1994

96. Section 45 Crimes Act 1900 was enacted in 1994 by way of the Crimes (Female General Mutilation) Amendment Act 1994 (“the 1994 FGM Act”).

97. The 1994 FGM Act inserted s.45 in Division 6 of Part 3 of the Crimes Act 1900. Part 3 is entitled “Offences Against the Person” and Division 6 of Part 3 is entitled “Acts Causing Danger to Life or Bodily Harm”.

98. The long title of the 1994 FGM Act was “an Act to amend the Crimes Act 1900 to prohibit female genital mutilation”.

99. Section 45, as it stood at relevant times (for the purpose of these proceedings) between 2009 and 2012, was in the following terms:

“45    Prohibition of female genital mutilation

(1)    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.

(2)    An offence is committed against this section even if one or more of the acts constituting the offence occurred outside New South Wales if the person mutilated by or because of the acts is ordinarily resident in the State.

(3)    It is not an offence against this section to perform a surgical operation if that operation:

(a)    is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b)    is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c)    is a sexual reassignment procedure and is performed by a medical practitioner.

(4)    In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

(5)    It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.

(6)    This section applies only to acts occurring after the commencement of the section.

(7)    In this section:

authorised professional means:

(a)    a registered midwife, or

(b)    a midwifery student, or

(c)    in relation to an operation performed in a place outside Australia - a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or

(d)    a medical student.

medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.

medical student means:

(a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.

midwifery student means:

(a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place.

sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.”

100. Reference will be made later in this judgment to the Explanatory Memorandum and parts of the Second Reading Debate, together with other extrinsic material upon which the parties relied on the hearing of this issue.

101. The 1994 FGM Act commenced on 1 May 1995.

102. It should be noted that:

1. the 1994 FGM Act did not purport to define FGM beyond the terms used in the section itself, in particular s.45(1)(a);

2. s.45 is not age specific in that it is not directed solely to performance of a prohibited procedure upon a child or young person.

Amendment of s.45 in 2014 and the Enactment of s.45A

103. Although not directly applicable to these proceedings, it is appropriate to refer to amendments effected by the Crimes Amendment (Female Genital Mutilation) Act 2014 (“the 2014 FGM Amendment Act”). Given the relationship between the 1994 and 2014 legislation, the proper construction of the term “mutilates” in s.45(1)(a) will be assisted by an examination of the changes made by the 2014 FGM Amendment Act, and extrinsic material relevant to that legislation.

104. The 2014 FGM Amendment Act amended s.45 and inserted s.45A into the Act. The amendment of s.45 and the enactment of a closely related provision, s.45A, will bear upon the proper construction of the terms FGM and “mutilates” in s.45. It is appropriate to set out in full the current provisions of s.45 and s.45A:

“45    Prohibition of female genital mutilation

(1)    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 21 years.

(2)    (Repealed)

(3)    It is not an offence against this section to perform a surgical operation if that operation:

(a)    is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b)    is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c)    is a sexual reassignment procedure and is performed by a medical practitioner.

(4)    In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

(5)    It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.

(6)    `This section applies only to acts occurring after the commencement of the section.

(7)    In this section:

authorised professional means:

(a)    a registered midwife, or

(b)    a midwifery student, or

(c)    in relation to an operation performed in a place outside Australia - a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or

(d)    a medical student.

medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.

medical student means:

(a) a person registered as a student in the medical profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.

midwifery student means:

(a) a person registered as a student in the nursing and midwifery profession under the Health Practitioner Regulation National Law, or

(b)    in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place.

sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person.

45A    Removing person from State for female genital mutilation

(1)    A person is guilty of an offence if the person takes another person from the State, or arranges for another person to be taken from the State, with the intention of having female genital mutilation performed on the other person.

Maximum penalty: imprisonment for 21 years.

(2)    In proceedings for an offence under subsection (1) and in the absence of proof to the contrary, it is to be presumed that the accused took another person, or arranged for another person to be taken, from the State with the intention of female genital mutilation being performed on the other person if it is proved that:

(a)    the accused took the person, or arranged for the person to be taken, from the State, and

(b)    female genital mutilation was performed on the person while outside the State.

(3)    It is not a defence to a charge under this section that the person taken from the State consented to being so taken.

(4)    In this section:

female genital mutilation means an act referred to in section 45 (1) (a), the performance of which would be an offence against that section if performed in the State.”

105. As will be noted, s.45 was amended by the removal of s.45(2) and the increase of the maximum penalty from seven years’ imprisonment to 21 years’ imprisonment.

106. For the purpose of s.45A, the legislature defined “female genital mutilation” as meaning “an act referred to in section 45(1)(a), the performance of which would be an offence against that section if performed in the State”: s.45(4).

107. In adopting this approach, it appears that the legislature accepted that the term FGM in s.45 had a settled meaning which could be applied, without further elaboration, in the new offence created by s.45A.

108. Accordingly, the construction of s.45(1) under consideration in these proceedings will have equal application to the offence created by s.45A.

The Competing Submissions Concerning the Meaning of the word “Mutilates” in s.45(1)(a) Crimes Act 1900

109. Before embarking upon an examination of the competing submissions and my conclusion concerning the issue of interpretation addressed in this judgment, it is useful to set out the end point submissions of the parties concerning the meaning which should be accorded to the word “mutilates” in the context of this case.

110. The Crown submits that any physical injury to any extent to the female genital organs, which is done for non-medical reasons, can amount to mutilation for the purposes of s.45. The Crown submits that a nick or cut to the genitalia for the purposes of FGM is capable of falling within the concept of mutilation in s.45. The Crown says that, at the very least, the procedure performed by KM on C1 and C2 was a cutting or nicking (including pricking or piercing) of the clitoris so as to be capable of falling within the terms of s.45. The Crown submits that the jury should be directed that any injury to any extent for non-medical reasons falls within the meaning of “mutilation” for the purpose of s.45 Crimes Act 1900.

109. Mr Sutherland SC, for A2 and Mr Vaziri, and Mr Bouveng, for KM, joined in a submission that a jury should be directed that the word “mutilates” in s.45 means to cut off, destroy, or alter radically a part of the body, in the present case (given the terms of the Indictment), the clitoris.

110. The Court had the benefit of detailed written submissions from the Crown (MFI20) and the Accused persons (MFI23) together with oral submissions made on 19 August 2015 by reference to these submissions (PT495-529). Volumes of material relied upon by the parties on the construction issue were provided by the Crown (Exhibit PTP) and the Accused persons (Exhibit PT7). As a result of issues raised in the course of oral submissions, both the Crown and the Accused persons provided supplementary submissions on 20 August 2015 concerning the meaning to be accorded to the word “clitoris”, which appears in s.45(1)(a) of the Act.

111. In what follows, I will provide a short overview of the submissions, followed by my analysis of the issues giving rise to the conclusions reached on the construction issue and the proper directions to be given to a jury.

Short Overview of Submissions of the Parties

The Crown Submissions

114. The Crown invited the Court to construe the term “otherwise mutilates” in s.45(1) in a purposive way, keeping in mind the context in which the words are used.

115. The Crown contended:

1. that an available dictionary meaning of the word “mutilates” is to cause an injury, so that the ordinary meaning of the term is capable of accommodating the Crown submission;

2. even if the ordinary meaning of the word “mutilates” is narrower than this, the Court should accord the term the meaning contended for by the Crown having regard to the purpose or object of the provision (s.33 Interpretation Act 1987) and by reference to available extrinsic material (s.34 Interpretation Act 1987).

116. The Court was taken to the Second Reading Debates surrounding the 1994 FGM Act and material referred to in those debates, including a 1994 report of the Family Law Council to which further reference will be made.

117. Reference was made, as well, to WHO publications concerning FGM, and material relied upon for official community education purposes within New South Wales to explain FGM and to foster its prevention, following the enactment of the 1994 FGM Act.

118. The Crown submitted that the term “otherwise mutilates” is a type of catch-all phrase to be understood in the context of FGM generally, as expanded upon in the range of publications and other materials to which the Crown points.

119. It was submitted that an important feature in the construction of the term “mutilates” in this context is that the affected area is the most sensitive and intimate part of the body of (usually) a child, being the genital area.

120. The Crown submitted that a finding that mutilation did not extend to any injury to any extent for non-medical reasons, would be contrary to the legislative purpose and would fail to recognise the legislative context and would fail, as well, to provide proper protection for those for whom it was enacted to protect, particularly children who are considered vulnerable.

121. The Crown submits that the purpose of the 1994 FGM Act was to cover the field in terms of FGM and that it was not limited to the most severe forms of that conduct referred to in the extrinsic material.

122. The Crown submitted that acceptance of the construction advanced for the Accused persons would unduly narrow the conduct caught by s.45(1) in a manner which was inconsistent with the purpose or object of the enactment and which would serve to defeat that purpose or object.

Submissions of the Accused Persons

123. It was submitted for the Accused persons that the ordinary meaning of the word “mutilates” should be applied here and that that word involved far more than “any injury to any extent for non-medical reasons” as contended for by the Crown. The Court was taken to various dictionary definitions of the word “mutilate”. It was submitted that the word “mutilates” is a strong one connoting the injuring, disfiguring, depravation, castration, destruction of use, or making an imperfection by permanent or irreparable damage, excision or other act of destruction.

124. Counsel for the Accused persons took the Court to other legal dictionary definitions of the word “mutilation” in support of this submission. The Court was taken, as well, to consideration of the word “mutilate” in decisions from the United States of America.

125. The Court was taken to the decision of Sir James Munby, President of the Family Division, in In the Matter of B and G (Children) (No. 2) v Leeds City Council and Ors [2015] EWFC 3, where consideration was given to s.1 Female Genital Mutilation Act 2003 (UK) which is in similar terms to s.45(1)(a) Crimes Act 1900. It was submitted that this decision provided some support for a narrow construction of the term “mutilates” as contended for by the defence in this case.

126. Counsel took the Court to the use of the word “mutilation” in other statutes in Australia, including s.268.47 Criminal Code Act 1995 (Cth) and s.67 Australian Securities and Investment Commission Act 2001 (Cth) in support of the defence submission.

127. It was submitted that the Court should construe a penal provision such as s.45(1) in a literal and non-expansive fashion, with reliance being placed, amongst other cases, upon Milne v The Queen [2014] HCA 4; 252 CLR 149.

128. It was submitted that the wording of s.45 is clear and does not produce ambiguity, inconsistency or absurdity. It was submitted that a purposive construction did not justify an expansion of the scope of FGM beyond its textual limits. In these circumstances, it was submitted that there was no necessity for consideration of extraneous material although it was further contended that such material supported the defence approach in any event.

129. Counsel relied upon other canons of statutory interpretation, including noscitur a sociis and the ejusdem generis principle. It was submitted that a genus exists here with “excise” and “infibulates” being methods of injury so that “mutilation” needs to follow with the same common characteristic: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at 143 [126]. It was submitted that the common characteristic here, giving rise to a genus, was the infliction of serious injury. It was submitted that, when “mutilate” is read in conjunction with the specific words “excise” and “infibulate”, it is confirmed that really serious injury is required to have been caused so as to constitute mutilation.

130. It was submitted that the Second Reading Speech of the Minister with respect to the 1994 FGM Act indicated that the provision was directed to three forms of FGM, being “infibulation, clitoridectomy and sunna”. I will return to these concepts later in the judgment. It was submitted that this statement was contrary to the Crown submission in support of the breadth of the term “mutilates” in s.45.

131. Counsel submitted that the Crown construction would apply s.45 to genital cosmetic procedures, such as the insertion of genital studs or rings, where an adult woman requested and consented to such a procedure. In this way, it was submitted that the Crown approach would involve legislative overreach of a type beyond the intention of the legislature in 1994. Such a construction, it was said, would give rise to absurd or unreasonable outcomes, so as to emphasise the error in broad construction advanced by the Crown.

132. A further submission was made by reference to the term “actual bodily harm” in s.59(2) Crimes Act 1900 (the alternative counts) and a contrast between that element and the Crown submission concerning the meaning of “mutilates” in s.45(1) of the Act.

Analysis of Matters Bearing Upon the Meaning of “Otherwise Mutilates” in s.45 Crimes Act 1900

133. What follows involves identification and analysis of matters bearing upon the construction issue in this case. Following this analysis (which involves some conclusions), I will move to summarise my findings and conclusions on the construction issue.

Some Principles of Statutory Interpretation

134. It is appropriate to refer to a number of judicial statements bearing upon the task of statutory interpretation, before moving to the Interpretation Act 1987 and other aspects to be considered in determining the issue.

135. A helpful starting point are the well-known statements in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

“[69]   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

[78]   … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

136. Further assistance is provided by the statement of Bathurst CJ (Beazley and Basten JJA agreeing) in Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 at 329 [39]-[40]:

“39   As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48].

40   Further, although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (see the cases cited above; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Interpretation Act 1987 s 33, s 34) it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose: Australian Education Union supra at [26] and the cases there cited; Alcan supra at [46].”

137. In Monis v The Queen [2013] HCA 4; 249 CLR 92, Crennan, Kiefel and Bell JJ, in the course of construing a penal provision, said at 202 [309]:

“The appellants' approach to the meaning of the word ‘offensive’ in s 471.12 denies the relevance of context. The modern approach to interpretation, particularly in the case of general words, requires that the context be considered in the first instance and not merely later when some ambiguity is said to arise [K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315 per Mason J; [1985] HCA 48]. Such an approach was confirmed as correct in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 at 381 [69]]. Whilst the process of construction concerns language, it is not assisted by a focus upon the clarity of expression of a word to the exclusion of its context.”

138. In Milne v The Queen, at 164 [38], the Full High Court said with respect to the use of a purposive construction of a penal provision (footnotes omitted):

“Section 400.3(1) creates a serious offence. It is punishable by a term of imprisonment of up to 25 years. In the end the ‘broad construction’ proffered by the respondent seemed to involve little more than the proposition that, however construed, it fits the facts of this case. As a matter of textual analysis, it does not. Purposive construction does not justify expanding the scope of a criminal offence beyond its textual limits. In this case, those limits are not narrowly defined. The language of s 400.3(1)(b)(ii), and its associated definitions, is capable of application to a range of circumstances which fall within their ordinary meanings. Its construction according to the ordinary meaning of its words is sufficient to provide a broad coverage consistent with its purpose and without resort to ‘extended’ meanings of those words.”

139. These propositions will be kept in mind in undertaking the process of statutory interpretation in this case.

Relevant Provisions of the Interpretation Act 1987

140. The purposive construction rule in this State is reflected in s.33 Interpretation Act 1987, which states:

“Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

141. Section 34 concerns the use of extrinsic material in statutory interpretation. The provision will be mentioned for a number of purposes in this judgment. The section provides:

“34    Use of extrinsic material in the interpretation of Acts and statutory rules

(1)    In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)    to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)    to determine the meaning of the provision:

(i)    if the provision is ambiguous or obscure, or

(ii)    if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2)    Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a)    all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b)    any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d)    any treaty or other international agreement that is referred to in the Act,

(e)    any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f)    the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g)    any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h)    any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3)    In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a)    the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b)    the need to avoid prolonging legal or other proceedings without compensating advantage.”

142. Both the long title to the 1994 FGM Act (see [98] above) and the heading of s.45 refer to “prohibition of female genital mutilation”. The term “female genital mutilation” is not used within the body of s.45 itself.

143. The long title may be referred to as an aid to the construction of the 1994 FGM Act: Pearce and Geddes, “Statutory Interpretation in Australia”, Lexis Nexis Butterworths, 2014, 8th Edn, paragraph 4.48.

144. The heading of the section shall be taken not to be part of the statute: s.35(2) Interpretation Act 1987. However, the heading of s.45 is available as extrinsic material under s.34 Interpretation Act 1987: s.35(5) Interpretation Act 1987.

145. As will be seen, I consider the words “prohibition of female genital mutilation” as used in the long title and the heading, to have particular significance in the context of this case.

Use of Dictionary Definitions

146. The Court was taken to a range of dictionary definitions concerning various terms in the course of submissions.

147. If a word or phrase is not defined in a statute, it may be helpful to refer to a dictionary for its popular meaning (or meanings) or, where appropriate, its technical meaning (or meanings) and, in the latter context, specialist dictionaries such as legal or medical dictionaries may be of assistance: Pearce and Geddes, above, paragraph 3.30.

148. It is necessary to keep in mind the observations of Mason P (Stein and Giles JJA agreeing) in House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at 505 [28]:

“A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.”

149. Mason P referred, at 506 [32], to the role of the Macquarie Dictionary:

“The Macquarie Dictionary was first published in 1981. One of its Prefaces discusses the need for an Australian Dictionary. It explains the sense in which that publication was the first general reference dictionary offering a comprehensive survey of Australian English. This should caution against undiscriminating selection from the body of material set out above. It certainly cautions against undiscerning aggregation.”

The learned President, at 506 [33], describes the Macquarie Dictionary as the “most authoritative Australian dictionary”.

as contrasted with s. 27 as it had been construed, an expanded meaning.”

231. I do not accept the defence submission that, as a matter of construction, there is a genus with a common characteristic being causation of “serious injury”. Rather, the phrase in s.45(1) uses the words “excises” and “infibulates” and then moves, by words of expansion, using the term “otherwise mutilates”.

232. In my view, the section may be construed appropriately as the legislature using two specific terms well recognised in the area of FGM (“excises” and “infibulates”) and then moving by way of an expansive third category (“otherwise mutilates”) to incorporate all other forms of FGM which section 45 itself was intended to prohibit.

233. I do not think that application of syntactical presumptions operates to assist or support the submission advanced by the Accused persons in this case.

Submissions Made by Reference to Comparison of the Crown Submission Concerning s.45(1) and Elements of the Alternative Charges Under s.59(2) Crimes Act 1900

234. A discrete submission was made by Mr Bouveng, inviting a comparison between the Crown submission as to the meaning of “mutilates” in s.45(1) Crimes Act 1900 and an element of the alternative counts of assault occasioning actual bodily harm under s.59(2) Crimes Act 1900 as contained in Counts 2, 4, 6, 8, 10 and 12 of the Indictment. It was submitted that, if the Crown submission was accepted, the conduct falling within the term “mutilates” in s.45(1) would, in effect, be less than that required to constitute “actual bodily harm” for the purpose of s.59(2) of the Act.

235. The Crown pointed to the separate origins of these provisions and submitted that the meaning of the term “actual bodily harm” in s.59(2) did not bear upon the proper construction of s.45 of the Act. It submitted, as well, that the confined operation of s.45 (to the female genital area) was relevant, by way of contrast with the general application of s.59(2) to any part of the body of a person.

236. As directions will need to be formulated in due course concerning the elements of the s.59(2) offence as charged in the Indictment, it is appropriate at this point say something about this submission.

237. In McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549, with the agreement of Macfarlan JA and Blanch J, I said at 558-559 [40]-[44]:

“40   What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317. Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person’s consent and without lawful excuse: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 192, 200.

41   A practical distinction is sometimes drawn between a physical assault (or battery assault) and psychic assault (or apprehended unlawful force assault): Fitzgerald v Kennard at 200-201; Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962 at pages 8-15); Lake Macquarie City Council v Morris (2005) 63 NSWLR 263 at 273-274 [48]-[49].

42   It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1991]-[1992] 175 CLR 218 at 233, 265-266; Collins v Wilcock [1984] 1 WLR 1172 at 1177.

43   If actual bodily harm was occasioned by an assault, then the offender is liable to conviction and sentence for a more serious offence where the occasioning of actual bodily harm is an element of the offence. In the case of a police officer victim, this offence arises under s.60(2). In the case of a victim who was not a police officer, the relevant offence is one under s.59 of the Act.

44   The term ‘actual bodily harm’ is not defined in the Crimes Act 1900. The phrase ‘bodily harm’ has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178. It need not be permanent, but must be more than merely transient or trifling - it is something less than ‘grievous bodily harm’, which requires really serious physical injury, and ‘wounding’, which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4). The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67. If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45].”

238. I do not discern from what was said at 558 [44] concerning the term “actual bodily harm”, any aspect which assists the Accused persons in the resolution of the present question.

239. It must be borne in mind that s.45(1) is directed to procedures undertaken in a delicate, sensitive, intimate and precise part of the female anatomy, usually of a young girl. As I have said, the proper meaning of the word “mutilates” will keep this aspect clearly in mind. An offence under s.59(2) however, involves the infliction of actual bodily harm to any part of the body of the alleged victim. I see nothing in this part of the submissions which assists the Accused persons.

Conclusion Concerning The Proper Construction of the Words “Otherwise Mutilates” in s.45(1) Crimes Act 1900

240. I have set out, at considerable length, my analysis of matters advanced by the parties as bearing upon the proper construction of s.45(1) Crimes Act 1900. As would be apparent, the issue raised in these proceedings is a novel one, not considered previously by a superior court in this country.

241. The relative novelty of the proceedings, and the legal and factual issues raised by them, no doubt contributed to the decision of the Chief Justice to authorise the present trial to proceed in this Court under s.128 Criminal Procedure Act 1986.

242. The ordinary meaning of the word “mutilates” is not to be found by reference solely to dictionary definitions of that term. The ordinary meaning to be accorded to the term should take into account the context in which the word appears and the purpose or object of the provision: s.34(1) Interpretation Act 1987.

243. In this case, the relevant context includes the fact that the word “mutilation” forms part of a concept described as FGM. The word “mutilates” in s.45(1) was not selected by the legislature in a vacuum. Rather, the word should be understood as part of a formula of words (FGM) which itself has now taken on its own dictionary meaning (see [157]-[159] above). The term FGM has been described in various ways, including “a collective name” (see paragraph 2.01 of the Family Law Report at [181] above) or “umbrella term” (see Mr Speakman’s speech at [218] above).

244. The meaning and use of the word “mutilates”, in other factual and legal contexts, provides no real assistance to the resolution of the present question.

245. As the long title to the 1994 FGM Act and the heading to s.45 itself make clear, the legislation is directed to the prohibition of FGM. The conduct sought to be prohibited by the section is, according to the material referred to so far in this judgment, usually performed by non-medical persons operating in circumstances of some secrecy and using instruments not designed for surgery. This characterisation is not intended to in some way define FGM. Rather, it is intended to place, in a practical context, the conduct which s.45 is intended to prohibit or eradicate.

246. At the forefront of resolution of this issue is the fact that any FGM procedure will be directed, as a matter of course, to the sensitive and intimate female genital area, usually of young girls. To attempt to prescribe what conduct fell inside or outside the terms of s.45(1) would be fraught with difficulty, when it has been recognised that substantial margin for error may well surround the performance of FGM procedures generally (see paragraph 2.01 of the Family Law Council Report at [181] above).

247. The strongest argument in support of the defence construction is the reference by the Minister in the Second Reading Speech in the Legislative Council in 1994 to three categories intended to be covered by the legislation, with the third being “sunna” (see [190] above). The term “sunna” was explained (to some extent) in the Second Reading Speech and was further considered in the report of the Family Law Council (see paragraph 2.04 of the Family Law Council Report at [182] above). On this approach, s.45(1) would presumably not extend to conduct described by the Family Law Council as “ritualised circumcision” (see [182] above), where the clitoris may be scraped or nicked or to WHO Type 4 conduct, involving harmful procedures for non-medical purposes, including pricking, piercing, incising, scraping and cauterising (see [204] above).

248. A difficulty with this approach is that even the term “sunna” lacks precision. As used in the Family Law Council Report, it involves removal of the clitoral prepuce or hood, leaving the glans and body of the clitoris intact (see [182] above). To cut out or off part of the female anatomy in this way itself would constitute an excision. On this approach, what work is to be done by the words “otherwise mutilates”?

249. In my view, the appropriate course is to look at the purpose or object of the legislation, and to consider which construction would promote that purpose or object: s.33 Interpretation Act 1987. I would reduce the competing constructions to the following propositions:

1. the Crown submission that s.45(1) extends to the causing of any injury for non-medical reasons - a construction which would pick up physical contact with the relevant part of the genital area and the causing of some harm resulting in injury of any type - this approach serves to promote the purpose or object of s.45 in prohibiting or eradicating FGM procedures generally;

2. the defence submission which would allow under s.45 the infliction of injury as part of a FGM procedure, as long as it was not serious injury which cut off, destroyed or altered radically a part of a child’s genital area - this construction would allow FGM procedures which caused injury or harm but which fell short of the proposed defence construction - this construction would not serve to promote the purpose or object of the Act which was to prohibit and eradicate FGM procedures.

250. In the unusual circumstances of s.45, where its legislative origin is linked inextricably with invocation of the criminal law and education of the community with a view to prohibition and eradication of FGM procedures, the education material referred to earlier provides assistance to the Court. At the least, this material, taken with other publications in evidence, serves to demonstrate that the defence construction of the provision would serve to undermine, rather than promote, the intention of the legislature to prohibit FGM procedures.

251. I do not think that resolution of the present question is assisted by recourse to Parliamentary debates in the United Kingdom. A defence submission by reference to some statements made in 1983 in the House of Lords does not, in my view, assist the construction of a local statute in this State.

252. I do not consider that the location of ss.45 and 45A in Division 6 of Part 3 Crimes Act 1900 operates against the construction advanced by the Crown. The offences involve the causation of injury to the person, importantly, in a sensitive and intimate part of (usually) a young girl’s body. They fall within the general description of “Offences Against the Person” and “Acts Causing Bodily Harm”.

253. Nor do I consider that the defence submission concerning female genital cosmetic surgery (see [131] above) assists the resolution of the present construction issue. The 2013 Commonwealth Attorney General’s Department Review noted that the role of such surgery had been raised on the review. The Report said (Exhibit PTP, Tab 23, page 9):

“The broad definition of female genital mutilation and explicit removal of consent as a defence has raised some issues in relation to female genital cosmetic procedures. Anecdotal evidence suggests female genital cosmetic surgery has increased significantly since 1998, when the model legislation (and the majority of State and Territory offences) was drafted. Certainly, there are many examples of surgeons advertising procedures for Australian clients.

While most public discourse distinguishes between female genital cosmetic surgery and female genital mutilation, female genital cosmetic surgery may involve procedures that are technically very similar to those defined in the legislation. The status of these procedures under existing laws is untested. This is a complex issue, which this Report has been unable to fully consider. Further work should be done in close consultation with relevant Commonwealth, State and Territory agencies, communities, experts and other stakeholders to clarify the legal and policy position on female genital cosmetic procedures.”

254. The practical answer to this aspect is that investigatory and prosecutorial discretion will limit attention being given to female genital cosmetic procedures undertaken on consenting adults, even if the conduct in question was capable technically of falling within s.45. It may be taken that the authorities will direct their attention to the well-recognised context in which FGM occurs, as exposed in extrinsic material including the community education publications, in use for many years.

255. I do not think that the construction advanced by the Crown involves any form of statutory overreach. The degree of injury or harm established in a particular case under s.45 Crimes Act 1900 would be relevant to the question of penalty if a person or persons were convicted of the offence: s.21A(2)(g), (3)(a) Crimes (Sentencing Procedure) Act 1999.

256. In approaching this construction question, I have kept firmly in mind the statements of Bathurst CJ in Rail Corporation New South Wales v Brown (see [136] above) and of the High Court of Australia in Milne v The Queen (see [138] above). The task of the Court is to construe s.45. It is not for the Court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose. The purpose of construction does not justify a court in expanding the scope of a criminal offence beyond its textual limits.

257. In the construction or interpretation of a statute, the object of the court is to ascertain, and give effect to, the will of Parliament: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 418 [8] (Gleeson CJ). I am satisfied that the construction of s.45(1) advanced by the Crown, which I accept reflects the will of Parliament. It arises after application of relevant principles of statutory construction, including application of ss.33 and 34 Interpretation Act 1987.

258. Accordingly, I accept the Crown submission as to the directions to be given to the jury in this case (see [110] above). I reject the submission made on behalf of the Accused persons in this respect (see [111] above).

The Meaning of the Word “Clitoris” in s.45(1) Crimes Act 1900

259. The counts in the Indictment charging offences under s.45(1)(a) Crimes Act 1900 allege that the relevant Accused “mutilated the clitoris” of C1 or C2.

260. In the course of oral submissions, it became clear that it may be necessary for the Court to construe the word “clitoris” as used in s.45. This arose, in particular, given reference in the submissions to injury to the clitoris or other areas, including the prepuce of the clitoris.

261. In written submissions dated 20 August 2015, the Crown submitted that the prepuce, also known as the clitoral hood, should be considered as part of the clitoris. Given that the prepuce is a fusion of the labia minora and the clitoral glans, the Crown accepted that it could also be considered part of the labia minora. In the context of s.45, it was submitted that the term “clitoris” should be given a wide meaning.

262. In defence written submissions dated 20 August 2015, it was submitted that the prepuce does not form part of the clitoris, and that a direction along these lines should be given to a jury at trial.

263. The defence written submissions point to a number of dictionary definitions of “clitoris” and “prepuce”:

“3.   ‘Clitoris’ is defined in the Oxford English Dictionary, Online as:

A homologue of the male penis, present, as a rudimentary organ, in the females of many of the higher vertebrata.

4.   ‘Prepuce’ is defined in the Oxford English Dictionary, Online as:

The fold of skin covering the glans of the penis; - FORESKIN n.

Also: a fold of the labia minora that covers the clitoris.

5.   ‘Clitoris’ is defined in the Butterworths Medical Dictionary, 2nd edition as:

A small erectile organ in the female homologous to the penis in the male and situated at the anterior angle of the pudendum muliebre. It is partially hidden by the ends of the labia minora.

6.   ‘Clitoris’ is defined in Stedman’s Medical Dictionary for the Health Professions and Nursing, Australia and New Zealand Edition, 6th edition as:

A cyclindrical, erectile body, rarely exceeding 2cm in length, situated at the most anterior portion of the vulva and projecting between the branched limbs or laminae of the labia minora, which form its prepuce and frenulum. It consists of a glans, a corpus, and two crura.

7.   ‘Prepuce of clitoris’ is defined in Stedman’s Medical Dictionary for the Health Professions and Nursing, Australia and New Zealand Edition, 6th edition as:

The external fold of the labia minora, forming a cap over the clitoris.

8.   ‘Prepuce’ is defined in the Oxford Concise Medical Dictionary, 3rd edition, Oxford University Press (2002) as:

(foreskin) n. the fold of skin that grows over the end (glans) of the penis.

…

The fold of skin that surrounds the clitoris is also called the prepuce.

9.   ‘Clitoris’ is defined in the Blacks Medical Dictionary 41st edition, A & C Black Publishers Limited (2005) as:

A small, sensitive organ comprising erectile tissue at the top of the female genitalia where the labial folds meet below the public bone. Clitoral tissue extends into the anterior roof of the vagina. During sexual excitement the clitoris enlarges and hardens and may be the focus of orgasm.”

264. Both the Crown and counsel for the Accused persons took the Court to parts of the report of Dr Marks concerning the clitoris, prepuce and other relevant terms.

265. The defence written submissions refer, as well, to a provision in the Prohibition of Female Genital Mutilation (Scotland) Act 2005 which referred more expansively to the performance of an action “to the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of another person”. It was said that the Scottish Parliament had adopted a formula which demonstrated that the prepuce of the clitoris was separate to the clitoris itself, but that it was included for the purpose of FGM legislation in that jurisdiction.

266. I have set out the competing submissions on this topic in this judgment. Counsel have not addressed orally on the written submissions made on 20 August 2015.

264. To an extent, the issue is capable of being moot. The definitions and medical reports serve to demonstrate that if the prepuce is not part of the clitoris, it is part of the labia minora. Both of these terms are used expressly in s.45(1)(a) Crimes Act 1900. Of course, if this construction operated, it may be necessary for the Crown to consider an amendment to the Indictment.

265. However, as presently advised, I approach the meaning of the word “clitoris” in s.45 with a broader understanding of the context in which it is used, and the purpose or object of the provision. FGM procedures are not carried out by surgeons using proper instruments in the sterile surrounds of an operating theatre.

266. That is not to say that the word “clitoris” takes on a very broad meaning incorporating parts of the female genital area which cannot, on any practical and sensible view, be considered part of the clitoris. It must be kept in mind that the legislature has identified three particular areas in s.45(1)(a) and has not used a broader term such as “genital area”.

267. However, as presently advised, I am 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.

268. In my view, this aspect need not be further progressed in this judgment. It is sufficient to express these provisional views, with the topic to be further addressed by counsel in the formulation of written directions on this aspect.

Conclusion

272. For the reasons expressed in this judgment, I am satisfied that the jury should be directed at the trial of the Accused persons, with respect to the word “mutilates” in s.45(1)(a) Crimes Act 1900, in accordance with the submission advanced by the Crown.

273. With respect to directions to be given concerning the term “clitoris” in the section, subject to any further submission, I have in mind directing the jury that the word “clitoris” in s.45(1)(a) is capable of including the prepuce of the clitoris.

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Decision last updated: 13 November 2015