R v A2; R v KM; R v Vaziri (No. 3)

[2015] NSWSC 1264

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264
Hearing dates:	17, 18 and 31 August 2015
Decision date:	01 September 2015
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	The evidence of Dr Ghadially, as summarised in this judgment, will be admitted.
Catchwords:	CRIMINAL LAW - pretrial ruling - admissibility of evidence - female genital mutilation (FGM) - persons charged with mutilating clitoris of child contrary to s.45(1)(a) Crimes Act 1900 - Crown seek to adduce expert opinion evidence concerning FGM in Dawoodi Bohra community - evidence held relevant under s.55 Evidence Act 1995 - defence objection to evidence of Crown witness - held witness has specialised knowledge based on training, study or experience - opinion evidence admissible under s.79 Evidence Act 1995 - whether evidence ought be excluded under s. 137 Evidence Act 1995 - evidence has probative value - no danger of unfair prejudice - evidence not excluded under s.137 - evidence admissible
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	BJS v R [2013] NSWCCA 123; 231 A Crim R 537 Evans v The Queen [2007] HCA 59; 235 CLR 521 Harrington-Smith v State of Western Australia [2003] FCA 893; 130 FCR 424 HG v The Queen [1999] HCA 2; 197 CLR 414 Honeysett v The Queen [2014] HCA 29; 253 CLR 122 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 270 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Le [2000] NSWCCA 49 R v Pham [2005] NSWCCA 9 R v Sood [2007] NSWCCA 214 R v Suteski [2002] NSWCCA 509 R v Tang [2006] NSWCCA 167; 65 NSWLR 681 Smith v The Queen [2001] HCA 50; 206 CLR 650 Tuite v R [2015] VSCA 148
Texts Cited:	---
Category:	Procedural 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:	Nil

Judgment (on admissIbility of evidence of Dr rehana ghadially - PT592)

1. JOHNSON J: The Crown seeks to adduce opinion evidence from Dr Rehana Ghadially at the trial of the Accused persons, A2, KM and Shabbir Mohammedbhai Vaziri. Objection is taken on behalf of the Accused persons to the admissibility of the evidence of Dr Ghadially upon the following alternative bases:

1. that it is not relevant: ss.55 and 56 Evidence Act 1995;

2. that it is inadmissible opinion evidence: ss.76 and 79 Evidence Act 1995; or

3. if otherwise admissible, the evidence ought be excluded upon the basis that its probative value is outweighed by the danger of unfair prejudice to the Accused persons: s.137 Evidence Act 1995.

2. The charges against the Accused persons were set out in R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 (“R v A2 (No. 2)”) at [7]-[9]. The Crown case against the Accused persons, as drawn principally from the Crown Case Statement, was set out in R v A2 (No. 2) at [10]-[86]. Also mentioned in R v A2 (No. 2), at [87]-[95], were matters bearing upon the real issues in the forthcoming trial of the Accused.

3. Reference was made, as well, in that judgment to an aspect of the evidence of Dr Ghadially presently under objection: R v A2 (No. 2) at [45].

The Evidence of Dr Ghadially

4. Dr Ghadially gave evidence on the voir dire (PT341-494) and a volume of documents were tendered by the Crown with respect to her evidence (Exhibit PTG). The Court has received written submissions on the admissibility of the evidence of Dr Ghadially (MFIs 11, 21, 22 and 31). Oral submissions were made yesterday on that topic (PT553-590).

5. Dr Ghadially (now 70 years old) has tertiary qualifications in psychology and science. She was born into the Dawoodi Bohra (or Daudi Bohra) community in India and has been part of that community for many years. She has undertaken research into the Dawoodi Bohra culture, in particular the role of women in that community. She has written in the area of women’s issues, including women’s rights, in India. Specifically, she undertook research in about 1990 leading to the publication of an article entitled “All For ‘Izzat’”, published in the journal “Manushi” in September-October 1991. The subtitle for this article was “The Practice of Female Circumcision Among Bohra Muslims”.

6. Dr Ghadially gave evidence that she herself had undergone a form of female circumcision, described as “Khatna”, when she was about six or seven years old (in about 1950). It was a combination of this experience, taken with her specific research in 1990-1991, and her general life experience in the Dawoodi Bohra community which has led the Crown to seek to adduce expert opinion evidence from her with respect to female circumcision in the Dawoodi Bohra community.

7. The Crown submits that Dr Ghadially is able to give admissible evidence on issues bearing upon the facts in issue at the forthcoming trial of the Accused persons. A contrary submission is made on behalf of the Accused persons.

Facts in Issue

8. It is the Crown case that KM mutilated the clitoris of each of C1 and C2, in the presence of A2, their mother. The Crown alleges that this was done as part of a process described as Khatna or female circumcision. The Crown alleges that Mr Vaziri was an accessory after the fact to the offences of KM and A2.

9. It appears that there will be no real issue at the trial that, on separate occasions, each of C1 and C2, whilst lying down and naked from the waist down, was touched by KM in the presence of A2.

10. The issues at the trial will include:

1. whether any act or acts carried out by KM upon C1 and C2 constituted female genital mutilation (“FGM”) in the form of mutilation of the clitoris as alleged in the charges brought under s.45(1)(a) Crimes Act 1900;

2. relevant to the first issue, whether any act or acts carried out by KM on C1 and C2 on these occasions were undertaken as part of a procedure involving Khatna or female circumcision, said to be undertaken from time to time upon young girls in the Dawoodi Bohra community.

11. In support of its case, the Crown seeks to adduce evidence from Dr Ghadially under the following headings (which are better particularised in MFI31):

1. the Khatna procedure;

2. the aftermath of the Khatna procedure;

3. the static nature of the Khatna procedure;

4. a ritualistic Khatna procedure;

5. the reason why the Khatna procedure is performed;

6. the profile of a circumciser; and

7. meaning of the words Khatna, Mohalla, Izzat and Gaan.

12. I will return to MFI31 later in these reasons.

The Relevance Objection

13. Sections 55 and 56 Evidence Act 1995 are in the following terms:

“55    Relevant evidence

(1)    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)    In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)    the credibility of a witness, or

(b)    the admissibility of other evidence, or

(c)    a failure to adduce evidence.

56    Relevant evidence to be admissible

(1)    Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)    Evidence that is not relevant in the proceeding is not admissible.”

14. The appropriate enquiry for the purpose of determining relevance under s.55 Evidence Act 1995 focuses upon the capability of the evidence to affect the determination or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 270 at [145]-[146]. It does not direct attention to what a tribunal of fact is likely to conclude. For the purposes of assessing this capability, it is assumed that the evidence would be accepted by the tribunal of fact and it is taken at its highest: R v Sood [2007] NSWCCA 214 at [38].

15. Section 55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language and suggests a wide rather than a narrow focus to the enquiry whether a proffered piece of evidence has the rational potential which s.55 requires: R v Le [2000] NSWCCA 49 at [19]; R v Pham [2005] NSWCCA 9 at [95].

16. In approaching an objection based on relevance, it is necessary to keep in mind the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen [2001] HCA 50; 206 CLR 650 at 653-654 [6]-[7] (footnotes excluded):

“[6]    … although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:

‘None but facts having rational probative value are admissible’,

and

‘All facts having rational probative value are admissible, unless some specific rule forbids.’

[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.”

17. In Evans v The Queen [2007] HCA 59; 235 CLR 521, Gummow and Hayne JJ said at 529 [23] (footnotes excluded):

“The answer to the questions just posed is provided by proper application of the test of relevance. As this Court's decision in Smith v The Queen demonstrates, questions of relevance require careful analysis. In particular, they require careful identification of the process of reasoning that is invited. Only then can it be seen whether the evidence in question could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ (emphasis added).”

18. In the same case, Kirby J stated at 546-547 [95]-[98] (footnotes excluded):

“[95] The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence ‘if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. That test must necessarily be given an extremely broad ambit.

[96] Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process.

[97]   What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant.

[98]   I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen. I disagreed with the approach on that occasion. In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding.”

19. Case law establishes that the application of s.137 does not involve the Court weighing possible alternative explanations or competing inferences in determining whether to exclude evidence under s.137: R v Burton at 266 [134], 272-273C [156]-[162], 280 [196]-[197]. It is self-evidently the case that a ruling as to relevance under ss.55 and 56 does not require or permit the Court to have regard to alternative explanations or competing inferences in determining the antecedent question of relevance. Nor does the Court consider issues concerning reliability of evidence at this point.

20. The ultimate fact in issue in the present trial is whether or not KM and A2 participated in the performance of acts upon C1 and C2 which constituted FGM under s.45 Crimes Act 1900. Behind those ultimate issues, there are many issues of fact relevant to the facts in issue, including what is stated at [10](b) above.

21. If otherwise admitted, I am satisfied that the evidence of Dr Ghadially is capable of shedding light upon issues falling for determination by the jury. Evidence of Dr Ghadially concerning the alleged performance of Khatna or female circumcision in the Dawoodi Bohra community, the social and hierarchical structure of the Dawoodi Bohra community and a number of the issues identified by the Crown in MFI31 satisfy the undemanding threshold of relevance for the purpose of the Evidence Act 1995.

22. Having so concluded, it is appropriate to consider the provisions concerning opinion evidence and the submissions made by reference to the particular topics identified by the Crown.

Objection to Opinion Evidence

23. Section 76 Evidence Act 1995 provides:

“76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.”

24. Section 79 of that Act provides:

“79    Exception: opinions based on specialised knowledge

(1)    If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)    To avoid doubt, and without limiting subsection (1):

(a)    a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b)    a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i)    the development and behaviour of children generally,

(ii)    the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.”

25. Section 79(1) requires the proposed expert witness to possess “specialised knowledge based on the person’s training, study or experience”. If that person possesses such knowledge, to satisfy s.79(1), the proffered opinion must be “an opinion of that person that is wholly or substantially based on that knowledge”.

26. In HG v The Queen [1999] HCA 2; 197 CLR 414, Gaudron J, at 432 [58]-[60], observed that, if otherwise relevant, expert evidence is admissible with respect to matters about which ordinary persons are unable to form a sound judgment without the assistance of those possessing specialised knowledge or experience. The knowledge or experience may be of some matter outside the experience and knowledge of the judge and jury.

27. In Harrington-Smith v State of Western Australia [2003] FCA 893; 130 FCR 424, Lindgren J said at 428 [20]:

“20    In order to establish the admissibility of evidence of expert opinion, it must be shown:

(a)    that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian edn) at [29050]) (Evidence Act ss 55, 56);

(b)    that the person put forward as an expert possesses specialised knowledge in that field (Evidence Act s 79);

(d)    that the specialised knowledge is based on the person's training, study or experience (Evidence Act s 79); and

(e)    that the particular opinion tendered is based on the specialised knowledge (Evidence Act s 79).”

28. In R v Tang [2006] NSWCCA 167; 65 NSWLR 681, Spigelman CJ (Simpson and Adams JJ agreeing) said at 712 [137]-[138]:

“137 The focus of attention must be on the words ‘specialised knowledge’, not on the introduction of an extraneous idea such as ‘reliability’. (Cf Velevski v The Queen (2002) 76 ALJR 402 at [82], [154]-[160]; Perpetual Trustee Co Ltd v George NSWSC 19 November 1997 per Einstein J (unreported); Idoport Pty Ltd v National Australia Bank Limited [1999] NSWSC 828 at [242]; Odgers Uniform Evidence Law (6th Ed) at par 1.3.4260; Freckleton and Selby Expert Evidence: Law, Practice, Procedure and Advocacy (3rd Ed) at 97-98; Anderson, Hunter and Williams The New Evidence Law (2002) at 246.)

138    In the immediate context of ‘specialised knowledge’, picked up by the words ‘that knowledge’ in the second limb of s79, the word ‘knowledge’ has a different connotation to that which it might have in a different context, e.g. ‘common knowledge’. The meaning of ‘knowledge’ in s79 is, in my opinion, the same as that identified in the reasons of the majority judgment in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590:

‘[T]he word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds’.”

29. Later in R v Tang, Spigelman CJ referred, at 714 [147]-[150], to well-known passages in other cases which have emphasised the need for attention to requirements of form:

“147    As Gleeson CJ said in HG v The Queen at [39]:

‘The provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.’

148    His Honour also said at [40]:

‘… the witness had to identify the expertise he could bring to bear and … his opinions had to be related to his expertise.’

(See also at [44].)

149    To similar effect is the analysis of Heydon JA in Makita (Australia) Pty Ltd v Sprowles at [85] where, after setting out the observations of Gleeson CJ in HG v The Queen, his Honour said:

‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.’

150    Similarly in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at [18], [23], the Full Court required ‘exposure of the reasoning process’ so as to demonstrate ‘that the opinion is based on … specialised knowledge’.”

30. An opinion is an inference drawn from observed and communicable data: Honeysett v The Queen [2014] HCA 29; 253 CLR 122 at 130-131 [21].

31. In Honeysett v The Queen, the Full High Court said with respect to s.79 at 131-132 [23]-[25] (footnotes excluded):

23.   “Section 79(1) states two conditions of admissibility: first, the witness must have ‘specialised knowledge based on the person's training, study or experience’ and, secondly, the opinion must be ‘wholly or substantially based on that knowledge’. The first condition directs attention to the existence of an area of ‘specialised knowledge’. ‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines ‘knowledge’ as ‘acquaintance with facts, truths, or principles, as from study or investigation’ (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: ‘the word 'knowledge' connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds’.

24.   The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends ‘observations and knowledge of everyday affairs and events’. It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.

25.   As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.”

32. In Tuite v R [2015] VSCA 148, the Victorian Court of Appeal (Maxwell ACJ, Redlich and Weinberg JJA) provided, at [70]-[77], the following helpful summary of principles concerning s.79 (footnotes excluded):

“70    In our respectful opinion, the conclusion reached by the New South Wales courts - first in McIntyre and then in Tang - is correct. That is, the language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.

71    As Gleeson CJ said in HG, ‘it is the language of s 79(1) which has to be applied’. The High Court has repeatedly emphasised that statutory interpretation begins, and ends, with the words which Parliament has used. For it is through the statutory text that the legislature expresses, and communicates, its intention. Of course, the interpretation of a particular provision requires consideration of the legislative context and - where relevant - the legislative history. But if the words are clear and unambiguous, the provision must be given its ordinary and grammatical meaning.

72    The first condition of admissibility under s 79(1) is that the person who is to give the opinion evidence ‘has specialised knowledge’. As is apparent from what was said in Honeysett, this phrase presents neither conceptual nor linguistic difficulty. Applying the Daubert formulation as approved in Honeysett, the focus of the inquiry will be on the witness’s ‘acquaintance with facts, truths or principles, as from study or investigation’. At the same time, under that formulation ‘knowledge’ is not confined to a body of facts but encompasses ‘ideas inferred from such facts ... on good grounds’. On this view, the witness’s ‘specialised knowledge’ will encompass both the facts of which he/she has knowledge and the ‘ideas’ - inferences, hypotheses and theories - based on those facts.

73    In order for the knowledge to be ‘specialised’, the witness must be shown to have knowledge of the relevant subject matter

which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter.

The witness’s possession of knowledge having that specialist character is a question of fact. In assessing the admissibility of the evidence, the judge must, of necessity, ascertain and define with some precision the scope, and the limits, of the witness’s ‘specialised knowledge’. This must be so, given that the second condition of admissibility requires the opinion to be ‘wholly or substantially based’ on that knowledge.

74    What is to be made of the Daubert requirement that - in order to qualify as ‘knowledge’ - an inference must be drawn ‘on good grounds’? This notion was further elaborated in Daubert, in a passage not quoted in either Tang or Honeysett, as follows:

[I]n order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation ie ‘good grounds’ based on what is known. In short, the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.

75    As this passage makes clear, the Supreme Court was here construing the phrase ‘scientific knowledge’ as it appeared in r 702 of the Federal Rules of Evidence. The Court viewed ‘good grounds’ as being synonymous with the ‘appropriate validation’ required by ‘scientific method’. Section 79(1), by contrast, speaks of ‘knowledge’, not ‘scientific knowledge’. Unlike r 702, therefore, s 79(1) does not itself establish ‘a standard of evidentiary reliability.

76    In our view, s 79(1) contains its own specification of the requisite foundation of the witness’s ‘knowledge’, namely, that the knowledge must be ‘based on the person’s training, study or experience’. To take an example discussed in argument, a medical specialist with expertise in occupational lung disease may have come up with a new theory about the link between a particular form of lung disease and a particular industrial emission. Notwithstanding its novelty, the theory could properly be viewed as part of the expert’s ‘specialised knowledge’ provided that the theory was demonstrably based on ‘the person’s training, study or experience’. Once that was established, it would be no objection to admissibility that there was dispute in the relevant field about whether the theory was ‘correct’. Questions of reliability would fall for consideration separately, as discussed below.

77    It follows, in our view, that a person’s knowledge may qualify as ‘specialised knowledge’ for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s 79(1) had provided that an opinion was only admissible if shown to be based on a ‘reliable’ or ‘established’ body of knowledge. No such language was used, however, and the legislative history makes clear that this was a deliberate legislative choice.”

33. With these principles in mind, I turn to the opinions which the Crown seeks to adduce from Dr Ghadially.

34. Keeping in mind the principles in Honeysett v The Queen (see [31] above), I accept that there is a field of specialised knowledge involving the practice of Khatna or female circumcision in the Dawoodi Bohra community. This is knowledge which is outside that of persons (such as jurors or judges) who have not, by training, study or experience, acquired an understanding of the subject matter. This specialised knowledge was acquired by Dr Ghadially by experience as well as study and research. It has resulted in the acquisition of knowledge, involving acquaintance with facts, truth or principles (from experience, study and research) and going beyond mere subjective belief or unsupported speculation. Her knowledge applies to a body of known facts, or a body of ideas inferred from such facts or accepted as truths on good grounds.

35. In reality, there may be very few persons who are qualified to give expert opinion evidence in this field, given the unusual nature of the subject matter. I am satisfied that Dr Ghadially is so qualified.

36. I accept that Dr Ghadially has specialised knowledge of aspects of the Dawoodi Bohra community in India, based on her training, study or experience. This includes:

1. her experience as a child, and then an adult, brought up and living within the Dawoodi Bohra community in Bombay, now Mumbai;

2. her experience of having a procedure undertaken on her genital area as a child;

3. her study and research of female circumcision in the Dawoodi Bohra community in India, including knowledge acquired of the nature and extent of that procedure;

4. her knowledge of the hierarchical structure of the Dawoodi Bohra community in India, and the teachings of that community from its base in India, giving rise to her knowledge of the structure, organisation and practices of that community in other parts of the world, including Australia.

37. Before moving to particular areas upon which the Crown seeks to rely, I should address a submission made for the Accused persons. In a statement dated 10 March 2015 (Exhibit PTG, Tab 4), Dr Ghadially was asked and answered:

“Q5.   How did you come to your opinions that you have referred to in that article?

A5.   My opinion as mentioned in that article is just that, opinion.

They are based on my experiences living in the Daudi Bohra Community as a Daudi Bohra woman, and my opinions are not mere ‘armchair philosophizing’. Also, my opinions are educated guesses based on my related reading & study. I also drew some inferences from the research that I conducted at that time.”

38. The defence submission was that this response (in particular, the reference to “educated guesses”) pointed to Dr Ghadially’s opinions not passing the test posed by s.79.

39. I have approached the issues falling for determination by reference to the extensive oral evidence given by Dr Ghadially, as well as the contents of statements. It is, of course, for the Court to determine whether the requirements of s.79 have been met. Having done so, I am so satisfied.

40. To the extent that the defence argued that Dr Ghadially’s own experience may be impermissibly seen as a form of coincidence evidence (relevant to what happened to C1 and C2), I note that this is not the purpose of the present ruling. Dr Ghadially’s personal experience is to be taken with her study and research to found relevant expertise. What other use, if any, may be made of her evidence is a matter for separate consideration.

41. For the purpose of this ruling, I will now identify the matters in relation to which the Crown seeks to adduce opinion evidence from Dr Ghadially (MFI31).

The Khatna Procedure

42. The Crown seeks to adduce the following evidence from Dr Ghadially with respect to the Khatna procedure (MFI31, paragraphs 1-13):

“1.   The khatna procedure includes a female child being taken to the home of a Dawoodi Bohra community member by her mother (p 373, line 1 – p 376, line 43).

2.   At the commencement of the procedure the child is told to remove her undergarments and to lie down. Then her mother and another woman each take one of the child’s legs, holding them wide open, while the circumciser performs the khatna procedure (Op cit).

3.   After the procedure some girls are told that a worm was removed from their stomach (page 402, lines 40 – 45).

4.   A khatna procedure was performed on Dr Ghadially when she was aged between 5 and 7 years. The khatna procedure was conducted with a blade or a knife, which caused her pain and made her cry. The pain she felt included highly localised pain, consistent with what might be expected when a blade is used on the genitals (Op cit).

5.   The injury sustained by Dr Ghadially healed very quickly (Op cit).

6.   It is Dr Ghadially’s opinion that the procedure has remained the same overtime, within the community (p 373, line 1 – page 376, line 43).

7.   The Dawoodi Bohra practice involves the least drastic variety of FGM (p 391, p 25-26). The khatna procedure that Dawoodi Bohra’s practice is to make a small cut on the clitoris. This includes removing the prepuce or tip of the clitoris, which is the size of a lentil and can also be described as the removal of a piece of skin (p 393, line 14 - 29) (p 391, p 25-26). The tip of the clitoris is removed by a razor blade (p 392, line 1-30).

8.   Dr Ghadially is of the opinion that khatna is performed by mullanis, women who have some religious training and are similar to midwives (p 387, line 43 – p 388, line 6).

9.   The utensils used for the procedure are usually kept in a box and may include a barber’s razor, a sharpening stone, small 1 inch by 1 inch pieces of paper used to wrap up the foreskin which is thrown away and a small box of indigenous medicine called kapurkanchi. Kapurkanchi is a powder applied to the injured area to heal or cool the area or stop any bleeding from occurring. In the box there should also be pieces of 1 inch by 1 inch cloth to be put on the affected area to stop the bleeding (p 401, line 4 – p 403, line 9).

10.   The procedure would be expected to take a few seconds but could take several minutes if the girl is agitated, realises what is happening or sees the blade. No anaesthetic is used and there is usually no bleeding (p 401, line 4 – p 403, line 9).

11.   The mullanis will recommend aftercare including washing the genital area with warn water and antiseptic, and the girl being given coconut water to assist in her recovery (Op cit). The wound is expected to take a day or two to heal (p 376, line 23 – 26).

12.   The question of the child giving consent does not arise because the mother gives permission on her behalf (page 409, line 8 -20).

13.   In Dr Ghadially’s opinioni [sic] the only Muslim sect that perform khatna is the Dawoodi Bohra community (p 382, lines 37-45).”

43. I am satisfied that matters under this heading may be adduced as opinion evidence from Dr Ghadially. Evidence of this type will assist the jury in understanding and determining the facts in issue in these proceedings.

44. Based upon Dr Ghadially’s own experience, and the study undertaken by her in about 1990 for the purpose of her 1991 article, Dr Ghadially may express these opinions based upon her specialised knowledge.

45. A particular challenge was made to the topic contained in paragraph 7 of MFI31. Counsel for the Accused persons submitted that Dr Ghadially herself had an imprecise understanding of the anatomical area of the clitoris in relation to the prepuce of the clitoris, so that her evidence ought not be admitted with respect to this topic in any event.

46. I bear in mind that Dr Ghadially is not being called to give expert medical evidence. Rather, her evidence relates to what she testifies as being a practice of the Dawoodi Bohra community to undertake Khatna or female circumcision by the making of a small cut on or in the area of the clitoris. I am satisfied that her opinion on this topic is admissible under s.79 and is capable of assisting the jury in the resolution of the facts in issue in this trial.

47. With respect to Topic 9 in MFI31, I bear in mind that Dr Ghadially’s knowledge of this topic was acquired from her study, including discussions she had with a circumciser. I do not consider that the limited foundation of Dr Ghadially’s knowledge of this topic renders it inadmissible under s.79. Whether evidence of all the contents of this person’s box ought be allowed may be the subject of further submissions. I bear in mind the fact that the electronically recorded evidence includes reference to “scissors” (see R v A2 (No. 2) at [48], [80]) and that there is some material which has foreshadowed that KM will mention the use of “forceps” (MFI13). The evidence of Dr Ghadially that her study revealed that persons undertaking Khatna or female circumcision used items from a box for this purpose may bear upon the resolution of issues in the trial.

48. Topic 10 of MFI31 refers to the asserted fact that there is usually no bleeding arising from the performance of Khatna. This is said to arise from Dr Ghadially’s own experience and information obtained during the course of investigations undertaken for her study and publication in 1991. I accept the Crown submission that this aspect is capable of bearing upon the resolution of a fact in issue given the accounts of C1 and C2 in the recorded interviews given by each girl.

Aftermath of the Khatna Procedure

49. The Crown seeks to rely upon opinions concerning the aftermath of the Khatna procedure (paragraphs 14-17 of MFI31):

“14.   As result of the khatna procedure, when a girl becomes an adult, they notice that the area has become hypersensitive which may be related to the circumcision previously performed on her. This hypersensitivity is noticed in particular during masturbation, sexual intercourse and sometime urination. That area of female genitalia is touch averse and painful because the nerve endings have been exposed (p 376, line 45 – p 377, line 21). The most common complaint from females who have experienced khatna is difficulty in discharging urine (p 398, line 25- 27).

15.   Dr Ghadially opines that the purposes behind the khatna procedure is to discourage masturbation because a women [sic] chooses to avoid touching the hypersensitive area (p 381, line 40 – p 382, line 30).

16.   After khatna has occurred an examination of the girl would not be required (p 407, line 28-30). Should there be any complication post khatna the girl’s the mother would take the girl to a doctor (page 407, lines 25-26).

17.   It is very rare for the procedure to cause scarring to the girls (page 407, lines 32 – 37).”

50. Particular objection was taken to paragraph 14 upon the basis that the Crown was not required to prove motive and that the reason for the performance of the alleged procedure was not an element of the offence.

51. I accept that Dr Ghadially may express an opinion, based upon her own experience and knowledge acquired by her for the purpose of her study and publication in 1991 with respect to these issues. I am satisfied that this bears upon the resolution of a fact in issue in this case, given that an important issue as between the parties will be the reason why C1 and C2 were touched by KM (see [10] above), with the answer to this question being capable of shedding light upon the issue whether, as the Crown alleges, what was being performed on each girl was Khatna or female circumcision.

52. I have concerns with respect to Topic 17 of MFI31. There is no evidence of any examination by Dr Ghadially of herself, nor has she witnessed the Khatna procedure being undertaken on others or its aftermath. Dr Ghadially is not purporting to give expert medical evidence. I am not persuaded that Dr Ghadially is in a position to give admissible opinion evidence to the effect that it is very rare for the Khatna procedure to cause scarring to girls.

Secret Nature of Khatna Procedure

53. The Crown seeks to adduce the following opinion concerning the suggested secret nature of the Khatna procedure (paragraph 18 of MFI31):

“Dr Ghadially opines that women within the Dawoodi Bohra community do not talk about ‘these things’ (p 377, lines 23-28) and matters involving sex and sexuality of girls are not mentioned (p 403, line 46 – page 404, line 24). Additionally women within the community do not talk about khatna unless they are mothers who have daughters that are around 6 years old (page 406, line 46 – page 407, line 6). Dr Ghadially further states that khatna is a ‘very hush hush topic’ (page 430, lines 48-49) and whilst generally the topic is not discussed women will talk about it with another women if it is raised (page 431, lines 1 -39).”

54. I am satisfied that Dr Ghadially may give opinion evidence to this effect. Her own experience as a woman brought up in the Dawoodi Bohra community provides a platform of experience in this regard, together with the knowledge obtained from Dr Ghadially’s study and research for the purpose of her 1991 article, which included discussions with many women from the Dawoodi Bohra community.

Static Nature of Khatna Procedure

55. The Crown seeks to adduce the following evidence concerning the suggested static nature of the Khatna procedure (paragraphs 19-22 of MFI31):

“19.   The practice or the procedure of khatna remains the same within the Dawoodi Bohra community over time and place, nonetheless community members are now prepared to question the procedure and some choose not to do it anymore (p 389, lines 23-30).

20.   Dr Ghadially opines that if there was any change to the procedure then community members ‘would get to know about it’ but states that the practice has not changed (p 431, line 28 – page 432, line 9).

21.   The Dawoodi Bohra community is highly organised and instructions come from ‘above’. As such community members are asked to follow similar procedures and practices in a certain way no matter where the Dawoodi Bohra’s live. The information is sent to the educated representatives of the clergy (p 461, line 14 – p 462, line 1).

22.   There is no variation to the procedure, the age at which it is done and what is to be cut etc. There is no option (Op cit).”

56. Counsel for the Accused persons have submitted that opinion evidence of this type should not be allowed. It was submitted that Dr Ghadially had experience of the Dawoodi Bohra community in India, but not in Africa or Australia. It was submitted that she was not in a position to give opinion evidence concerning procedures which may or may not be undertaken within the Dawoodi Bohra community in Australia.

57. I propose to allow this evidence to be given. There is a foundation in the evidence of Dr Ghadially for an understanding of the suggested hierarchical structure of the Dawoodi Bohra community which is based in India, but has elements in other countries as well, including Australia. Dr Ghadially’s knowledge of the Indian structure is based upon her own long experience as a member of that community, and her observations including knowledge acquired during the course of her study and research for the 1991 article.

58. Based upon this evidence, it is open to the Crown to invite the jury to draw an inference that the rules which are said to apply in India apply as well in Australia.

59. I have kept in mind the defence submission that Dr Ghadially has not undertaken further studies of the Dawoodi Bohra community since 1991. However, she has been a member of that community and is, in my view, able to give admissible evidence concerning the continuing practices of that community in India.

60. Of course, it will be open for counsel for the Accused persons to seek to challenge Dr Ghadially concerning Dawoodi Bohra practices in Australia, by cross-examination using documents or other means. Further, it is open to the Accused persons to adduce evidence with respect to the practices of the Dawoodi Bohra community in New South Wales. To raise this aspect is not to, in some way, reverse the onus of proof. Rather, it is to note that the process of the Court allowing evidence from Dr Ghadially on this aspect does not foreclose any evidentiary response by or on behalf of the Accused persons in this respect.

61. I bear in mind, as well, that some of the electronic evidence, upon which the Crown relies, raises the scenario that some procedure may have been carried out on C1 and C2 in Africa and that examination of the girls was occurring to check if this was the case (R v A2 (No. 2) at [49], [54], [56], [57], [60], [63], [64], [76], [80]).

62. It is open to the Accused persons to adduce evidence with respect to variations in local or African Dawoodi Bohra community practices, as against what Dr Ghadially may testify is the position applicable in India and, in her opinion, throughout the Dawoodi Bohra community worldwide.

63. It will be open to the Accused persons to seek to rebut the opinion evidence of Dr Ghadially on this aspect at trial.

Ritualistic Khatna Procedure

64. The Crown seeks to adduce the following from Dr Ghadially concerning a ritualistic Khatna procedure (paragraphs 23-24 of MFI31):

“23.   A khatna ritualistic procedure may be performed on girls who are born circumcised like Fatima, the prophet’s daughter. In these circumstances a cut betel nut leaf is ritualistically placed on the girl’s clitoris and removed (p 403, lines 11- 26).

24.   Dr Ghadially’s opinion is that approximately only 1 in 100 girls are born circumcised, in which case the ritualistic version of the khatna procedure is performed instead (p 432, lines 28 – 33) (Page 462, lines 3 – 7).”

65. These opinions of Dr Ghadially appear to be based entirely upon knowledge acquired during her study and research for her 1991 article. I am satisfied that Dr Ghadially should be allowed to give this evidence.

Reason Why the Khatna Procedure is Performed

66. The Crown seeks to adduce the following from Dr Ghadially concerning the reason why the Khatna procedure is performed (paragraphs 25-30 of MFI31):

“25.   Dr Ghadially opines that the khatna procedure is performed on girls aged between 5 and 7 years because a girl of that age is considered capable of understanding of what is being done to her yet, is sufficiently mature to continue the tradition when she has a daughter of own (p 388, line 15 – 50).

26.   The clergy recommend that the khatna procedure occur, but ultimately it is a decision of the mother as to whether to have the procedure performed or not (p 389, line 13 - 16).

27.   The khatna practice is perpetuated within the community on a mother to daughter or grandmother to granddaughter basis with the older women directing or informing the younger women about the procedure (p 389, lines 3 – 8).

28.   The procedure is conducted to discourage masturbation (p 381, lines 43 – 50).

29.   Within Dawodi [sic] Bohra families, it is a woman’s role to safeguard the family’s honour and female circumcision is closely bound to that concept (p 397, 35 – 50) (p 398, lines 9-16).

30.   Women who have had khatna performed on them are given permission to enter certain areas including cemeteries, mosques and to touch the stone of kaaba (p 403, lines 27-45).”

67. These matters arise from a combination of Dr Ghadially’s own experience, her knowledge of the Dawoodi Bohra community and its structures and beliefs, and knowledge acquired by her for the purpose of her study and research in aid of her 1991 article.

68. I am satisfied that Dr Ghadially should be allowed to give this evidence. With respect to Topic 28 of MFI31, Dr Ghadially’s opinion, based upon her own experience and knowledge acquired concerning Khatna for the purpose of her own research and writing on the topic, allows this evidence to be given.

69. Evidence bearing upon the reason why Khatna is performed within the Dawoodi Bohra community upon young girls is relevant to the determination of a fact in issue in the trial.

Profile of A Circumciser

70. The Crown seeks to rely upon evidence of Dr Ghadially concerning the profile of the circumciser (paragraphs 31-36 of MFI31):

“31.   Dais or midwives who perform khatna have semi-religious training (p 388, line 1).

32.   The circumciser spoken to by Dr Ghadially learnt how to perform the practice by observing other procedures performed by her grandmother (p 400, lines 31).

33.   A woman cannot practice khatna without the permission of the clergy. The circumciser spoken to by Dr Ghadially obtained permission from the clergy to hold the role within the community (p 400, lines 34-36).

34.   On a practical level, in order for a circumciser to gain approval from the clergy she needs to go to the women’s section of the mosque and the women there will make the appropriate enquiries of the clergy on her behalf (p 406, line 38-41).

35.   The girl’s mother or the person accompanying the child is usually responsible for paying the circumciser (p 379, lines 41-45) and the amount paid is nominal (p 401, line 46).

36.   The identity of a circumciser is based on local knowledge within that community, including social networks, friends, family and anybody who has a daughter of the requisite age (p 408, lines 40-42).”

71. The defence submission challenged the admissibility of this evidence, pointing to the fact that it was based apparently upon a conversation between Dr Ghadially and a single circumciser. It was submitted that this was not relevant evidence nor did it satisfy the requirements of s.79(1).

72. I am satisfied that Dr Ghadially should be allowed to give this evidence. The evidence is based upon conversations which she had with a particular person, who resided in the same house where her own Khatna procedure had been undertaken many years before. Her evidence indicates, as well, that her discussions with women concerning Khatna within the Dawoodi Bohra community, for the purposes of her study and research, extended to persons who would carry out procedures of this type and in what circumstances.

73. A fact in issue in these proceedings is what KM is alleged to have done to each of C1 and C2, and the reason why that was done.

74. It is the Crown case that KM was, in effect, a circumciser in the Dawoodi Bohra community in Sydney. The Crown points to some material in the electronic recordings which, it is said, is capable of supporting this aspect.

75. I am satisfied that Dr Ghadially is capable of giving admissible evidence concerning this aspect of Khatna or female circumcision as undertaken in the Dawoodi Bohra community in India, which she testifies is extended to Dawoodi Bohra communities outside India.

Meaning of Khatna, Mohalla, Izzat and Gaan

76. The Crown seeks evidence from Dr Ghadially concerning the meaning of Khatna, Mohalla, Izzat and Gaan (paragraphs 37-40 of MFI31):

“37.   Khatna means female or male circumcision (p 371, line 38- 40).

38.   Mohalla means enclaves and refers to areas in which only community member’s live (p 373, lines 39-44).

39.   Izzat means honour (p 380, lines 7-8).

40.   Gaan is a generic word for the both female and male genitalia.”

77. I do not discern any real controversy concerning the meaning of the word “Khatna”. If the matter is not otherwise dealt with so that it is before the jury, I will allow Dr Ghadially to give evidence that Khatna means female or male circumcision.

78. If otherwise relevant to the trial, the other terms may be the subject of evidence from Dr Ghadially, but I do not consider that a definitive ruling is required in this respect at this time.

79. Accordingly, the areas identified in this part of the judgment will be permitted as opinion evidence under s.79, subject to the objection under s.137 to which I will now turn.

Objection Under s.137 Evidence Act 1995

80. Section 137 provides as follows:

“137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

81. With respect to s.137 Evidence Act 1995, it is necessary to keep in mind the statement of McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91] that evidence is not unfairly prejudicial “merely because it makes it more likely that the defendant will be convicted”. The relevant enquiry is whether the jury may misuse the evidence in some unfair way: Papakosmas v The Queen at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165].

82. Unfairly prejudicial evidence is not evidence that advances the Crown case or weakens the defence case, but is evidence that is dangerous to the defence case in some way: R v Suteski [2002] NSWCCA 509 at [116]. There must be a risk that the evidence will provide some irrational, emotional or illogical response or a risk of the evidence being given more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

83. The question to be considered with respect to the s.137 objection is whether there is a danger of unfair prejudice because there is a real risk that the jury will make improper use of the evidence of Dr Ghadially otherwise admitted. I have already expressed the view that Dr Ghadially’s evidence is both relevant (ss.55 and 56) and admissible opinion evidence (s.79) on matters bearing upon the resolution of the facts in issue in the trial.

84. I am satisfied that the proposed evidence of Dr Ghadially has probative value. I am not persuaded that there is any danger of unfair prejudice in this case which ought lead to the exclusion of the evidence.

85. The evidence of Dr Ghadially will provide assistance to the jury in understanding matters outside the experience and knowledge of jurors and judges; being the nature and practices of the Dawoodi Bohra community, with particular reference to Khatna or female circumcision. A critical issue in the trial is whether Khatna or female circumcision was, in fact, what was being undertaken on each of C1 or C2 on the occasions which are the subject of the charges.

86. Counsel for the Accused persons may challenge the evidence of Dr Ghadially by cross-examination, and adduce such evidence in the trial which may bear upon the determination of the real issues in dispute in the trial. I am not persuaded that the evidence ought be excluded under s.137.

Conclusion

87. I am satisfied that the evidence of Dr Ghadially, as summarised in this judgment, ought be admitted and that such evidence may be adduced by the Crown at the trial of the Accused persons.

****************

Amendments

23 April 2025 - Publication restriction lifted.

Decision last updated: 23 April 2025