R v A2; R v Magennis; R v Vaziri
[2019] HCATrans 122
[2019] HCATrans 122
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S43 of 2019
B e t w e e n -
THE QUEEN
Appellant
and
A2
Respondent
Office of the Registry
Sydney No S44 of 2019
B e t w e e n -
THE QUEEN
Appellant
and
KUBRA MAGENNIS
Respondent
Office of the Registry
Sydney No S45 of 2019
B e t w e e n -
THE QUEEN
Appellant
and
SHABBIR MOHAMMEDBHAI VAZIRI
Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 12 JUNE 2019, AT 10.02 AM
Copyright in the High Court of Australia
____________________
MR D.T. KELL, SC: May it please the Court, I appear with MS E.S. JONES for the appellant in each of the appeals. (instructed by Solicitor for Public Prosecutions (NSW))
MR H K DHANJI, SC: May it please the Court, I appear with my learned friend, MR D.R. RANDLE, for the respondents in A2 and Vaziri. (instructed by Armstrong Legal)
MR T.A. GAME, SC: May it please the Court, I appear for the respondent Magennis with MS G.E.L. HUXLEY. (instructed by Armstrong Legal)
KIEFEL CJ: Yes, Mr Kell.
MR KELL: Thank you, your Honours. At issue in these appeals is the proper construction of section 45 of the Crimes Act 1900 (NSW). Section 45 was enacted in 1994 as a prohibition on female genital mutilation. It commenced operation on 1 May 1995, and the text of the provision relevantly for section 45(1) is at the joint book of authorities at page 13.
During the period in which the offences in these cases are alleged to have occurred, section 45(1) is in the terms stated at page 13 and it provides relevantly that:
(1) A person who:
(a)excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minor or clitoris of another person ‑
. . .
is liable to imprisonment for 7 years.
In the present cases, your Honours will be aware, from the written submissions, the first and second respondents, A2 and Ms Magennis, were charged with having mutilated the clitoris of each of the two complainants, who were identified as C1 and C2 in the materials. They are the daughters of the first respondent, A2. The present third respondent, Mr Vaziri, was charged with being an accessory to those offences. The indictment therefore links to the words within section 45(1) “otherwise mutilates”. So it is mutilation of the clitoris of each of the complainants.
The question of construction of section 45 was raised by the parties as a pre‑trial issue. The trial judge, Justice Johnson, heard argument on that issue and delivered a judgment on 27 August 2015. That is in the core appeal book, which I refer to as “appeal book”, from page 8 through to page 90. There is quite a detailed consideration of the question. His Honour in the result accepted the Crown’s submission that:
physical injury to an extent to the female genital organs, which is done for non‑medical reasons, can amount to mutilation for the purposes of section 45.
That can be seen in two references: one is at appeal book 41, at paragraph 110 of the judgment, where his Honour records the Crown’s submissions as to mutilation and he refers at paragraph 111 on that same page to the joint defence submissions, to the effect that:
a jury should be directed that the word “mutilates . . . means to cut off, destroy, or alter radically a part of the body –
So a quite high level of injury being posited by the defence. His Honour accepted the submissions of the Crown and rejected the submissions of the defence, and that can be seen at appeal book 86 at paragraph 257 through to 258. At 257:
I am satisfied that the construction of s.45(1) advanced by the Crown, which I accept reflects the will of Parliament.
At 258 his Honour indicates that he will direct the jury consistently with that approach. Then at the trial his Honour did direct to that effect, and that can be seen at – the summing‑up begins at appeal book 92 and then relevantly at appeal book 99 from about line 29 there is his Honour’s directions to the jury and he relevantly starts:
The word “mutilate” in the context of female genital mutilation means to injure to any extent. It is not necessary for the Crown to establish that serious injury resulted.
That contrasts with the proposition that was being advanced by the defence:
In the context of this trial, a nick or cut is capable of constituting mutilation for the purpose of this alleged offence.
Then he continues in the next paragraph:
So for this offence to be proved, the Crown does not need to prove that something was cut off.
Et cetera, and then:
If there is a nick or a cut, that would be sufficient in law to constitute a mutilation.
That direction is consistent with the written directions that Justice Johnson gave to the jury. And just on that page at line 30, his Honour refers to – so the direction in paragraph 3, and that is a cross‑reference to the written directions which his Honour had given, and I will just identify where they are. In the respondent’s book of further materials at page 9, your Honours will see paragraph 3, which again is consistent with the oral summing‑up.
The jury subsequently convicted the respondents of the offences against section 45(1). Our submission is that there was no error in the way in which his Honour Justice Johnson directed the jury, because on the proper construction of the provision ‑ and I will come to the construction of course ‑ it was necessary only for the Crown to prove injury, in the context of this case, relevantly comprising a cut or a nick. Necessarily from that, it was not necessary for the Crown to prove some high level of injury, contrary to what the Court of Criminal Appeal subsequently held.
So on the appeals against conviction, the Court of Criminal Appeal of New South Wales concluded that it was necessary for the Crown to prove more than injury simpliciter, and held that the kind of injury which the Crown was required to prove to fall within the terms of section 45 was injury rendering the body part in question, in this case the clitoris of a prepubescent girl, rendering the clitoris imperfect or irreparably damaged. That can be seen at appeal book 493, at paragraph 521. It is a joint judgment; their Honours indicate under the heading:
Conclusion on issues . . . in relation to “mutilates” –
Firstly:
that the extrinsic materials . . . do not permit a construction of “mutilates” that departs from its ordinary meaning –
and I will return to that. And the court’s consideration that the:
ordinary meaning connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion.
As a consequence, his Honour, the appeal court said:
misconstrued the meaning of “mutilates” and hence misdirected the jury –
That can also be seen at appeal book 486, at paragraph 495, which is a paragraph leading up to the conclusion I have just taken your Honours to where their Honours indicate that:
The text of the offence provision . . . particularly the use of the verb “mutilates” rather than simply “injures” or “damages”, suggests that more than the causing of an injury is required, such as impairing or rendering imperfect the body part that is mutilated.
Then there is reference to the sensitivity of the body part in question, and also references to:
One would not, in ordinary parlance, refer to a superficial graze as mutilation.
I will come back to that on the question of construction. So to succeed in relation to ground 1 of the appeal, we recognise that we need to persuade your Honours that, in effect, a person who injures the clitoris of another person is a person who mutilates the clitoris, for the purposes of section 45(1), including in circumstances such as here where the injury comprises a nick or cut to the clitoris, deliberately inflicted, without there necessarily being evidence of any heightened or perceived permanent or lasting damage, such as the Court of Criminal Appeal required, that is, rendering something imperfect or irreparably damaged.
That arises in the context where, as your Honours would have seen from the materials, and consistent with the evidence before the Court of Criminal Appeal, this is an area of the body which is rich in blood supply and heals quickly. The medical evidence was to the effect that a cut or nicking of the clitoris of a prepubescent girl may be such that on subsequent inspection there would be no scarring or permanent disfigurement because of the nature of the body part in question and its location.
BELL J: Is that Dr Jenkins’ evidence?
MR KELL: It is consistent with Dr Marks and Dr Jenkins, yes.
BELL J: I think there is some issue as between you and the respondent Magennis concerning Dr Jenkins’ evidence on that question.
MR KELL: There is an issue in relation to ground 2 which I will come to, the definition of “clitoris”, the meaning of “clitoris”, within ground 2 but I think ‑ ‑ ‑
BELL J: I may be wrong. I thought that Magennis contended that Professor Jenkins’ evidence suggested that ordinarily there would upon an examination be some sign of scarring. Is that wrong?
MR KELL: I think that they left open the possibility that there may be, the medical evidence that there may be, and that, of course, depends in part on the savagery of the cut and the like, but it is consistent with medical evidence that there would be no rendering imperfect, there would be no lasting visible disfigurement from what would be perceived as being female genital mutilation that involves the deliberate cutting of the clitoral hood of a young girl.
BELL J: As I understand the appellant’s position, it is that the error that the Court of Criminal Appeal made was to require in the expression “otherwise mutilates” some interference that might answer the description of “injury”; that is, the court required something more than an injury. The prosecution submits that a “mere injury” is sufficient in the context. Is that fair?
MR KELL: Yes, that is correct.
BELL J: Indeed, as I understand it, the prosecution would contend that the direction “injury to any extent” in the context of this offence was a correct direction, is that so?
MR KELL: Yes, and in the context of this offence in this trial.
BELL J: What I just want to take up with you is the question of how that fits with the concept of injury for the alternative lesser offence in light of a view that to occasion actual bodily harm requires some hurt or injury that need not be permanent but that must be more than transient.
MR KELL: Yes. The level of injury here – going back a step. There is no suggestion in the context of this trial that there was anything approaching de minimis injury which was being suggested, and that is clear from the directions.
BELL J: The direction that invites the jury to consider that the offence would be made out upon proof of an injury to any extent, you say ‑ ‑ ‑
MR KELL: Yes, which was – I am sorry, your Honour – in the context of this trial was a cut or a nick to the clitoris of one of the complainants or each of the complainants. The alternative counts were clearly not the subject of findings by the jury and there was consideration of the alternative counts in the Court of Criminal Appeal, but in the context of whether there should be a retrial in connection with those alternative counts, and ultimately for reasons including discretionary reasons, their Honours decided or determined not to order a retrial on the alternative counts. But the question as to whether or not injury would constitute actual bodily harm for the purposes of assault occasioning actual bodily harm is separate from the construction of section 45(1), of course, which is the matter that we take up.
BELL J: I am seeking to understand the proposition that you put. The Court of Criminal Appeal considered that to mutilate within the meaning of 45(1)(a) involved the infliction of some hurt or harm that was greater than an injury to any extent, which was the way the jury was directed. You embrace “injury to any extent” in the correct construction of the offence created by section 45.
MR KELL: Yes.
BELL J: I am, at this stage, seeking to understand what the prosecution says “injury” means in this context. Is it accepted that it bears a meaning consistent with the notion of “injury” for the purposes of the offence of inflicting actual bodily harm, namely, some hurt or injury that need not be permanent but that is more than merely transient, or do you go for a, as it were, lower threshold?
MR KELL: I want to just check whether that question was not advanced in the Court of Criminal Appeal. I just want to check whether the precise question that your Honour raised was not the subject of a question and answer in the Court of Criminal Appeal. I do not remember it being but, subject to that – and I will just double‑check that – as your Honours will be aware, the level of injury for actual bodily harm, putting to one side the aspects of non‑physical injury that can occur in that context, the level of injury in the context of actual bodily harm is relatively low for assault occasioning actual bodily harm.
For the purpose of section 45(1) we say “injury” is any injury. It has to be injury to the genitals. Beyond that, one moves to the context of what happened in this case, which is the alleged nick or cut. But we do not posit a higher – and we do not need to and we should not ‑ consistent with the construction that I will come to, we do not suggest a higher level of injury than the need to prove injury simpliciter.
BELL J: It is a question of what “injury simpliciter” in this context means.
MR KELL: Yes, it is, and it is a context where, on the Crown case, there was deliberate cutting of the clitoris of each of these girls for non‑medical reasons and, in our submission, that would clearly amount to injury.
The contrast was the case advanced by the defence and relevantly now the holding of the Court of Criminal Appeal which was to place the level of injury at a much much higher level, that is to say that the clitoris needs to be irreparably damaged or rendered imperfect – and I will come back to this later – which we say is inconsistent with a legislative intention and that also the result of such a construction is to undermine the legislative purpose, which is to protect – I will come to the materials – vulnerable female children from a practice which is regarded as abhorrent and of no perceivable benefit for the child.
This is not an area of discourse where there may be balancing of – combat sports or the like where there may be perceived balancing of policy considerations allowing persons to engage in particular activities that may or may not cause harm. This is a provision which was directed to protect vulnerable children.
The construction arrived at by the Court of Criminal Appeal, we say respectfully, it is inconceivable that Parliament could have intended that this provision be construed in such a way that the only way in which an offence would be made out in connection with such conduct against a child is to prove that the clitoris is irreparably damaged or rendered imperfect. It is just inconsistent with the legislative purpose of the provision and the perceived parliamentary intent. I will come to that in further detail, if I may.
NETTLE J: You do accept that level of injury necessary to sustain an offence under section 45 need not necessarily be as much as the level of injury required to sustain an offence of assault occasioning actual bodily injury.
MR KELL: I do, subject to the comment that I recognise of course, that particularly with evolving cases of Donovan, Miller and the like, from memory, that the concept of actual bodily harm itself is quite a low threshold.
NETTLE J: Yes.
EDELMAN J: Your point, as I understand section 45, is that there are other facts other than any actual harm that make section 45 the more serious offence.
MR KELL: Yes. I will come to that with some of the materials shortly. Can I say this as well ‑ ‑ ‑
KIEFEL CJ: Mr Kell, in relation to your approach to construction, am I correct in thinking that it has two principal limbs? The first is that which was put before the Court of Criminal Appeal, that for some time the term “female genital mutilation” has been accepted as a collective term which refers to all practices that inflict injury. And the second is that you take a purposive approach to construction because you say section 45 is a provision, the purpose of which is the protection of children.
MR KELL: Yes.
KIEFEL CJ: Are they your two principal approaches?
MR KELL: They are, with nuances, but yes.
KIEFEL CJ: In relation to the first, the Court of Criminal Appeal effectively said, I think at paragraph 494, the notion of it being a collective term was irrelevant because the statute does not use the collective term in its substantive part, in the definition of the offence.
MR KELL: Yes.
KIEFEL CJ: I am not sure whether the Court of Criminal Appeal actually dealt with a purposive approach expressly. Was that dealt with expressly by the – was that ‑ ‑ ‑
MR KELL: What their Honours recognised was that the construction that they had arrived at appeared to be at odds with the legislative purpose, if it was as contended by the Crown, which is what we say is the case, and that is really at appeal book 494, at paragraphs 523 and 524.
KIEFEL CJ: I think again at paragraph 513. Is that the essential approach of the Court of Criminal Appeal ‑ that it is the ordinary meaning of the word “mutilates” as distinct from any developed meaning of the term “female genital mutilation”, which conveys something else about the term “mutilation”?
MR KELL: Yes. Certainly we say that the Court of Criminal Appeal anchored its analysis to the ordinary meaning of “mutilates” and we say, properly viewed, that was the meaning as a matter of ordinary parlance. One can accept, perhaps, that “mutilates” in common ordinary parlance suggests a higher level of injury.
Just going back to your Honour’s question about the first step; we say, as a first step in the analysis, that this is an area where it is not a question of looking and seeing that the term “female genital mutilation” is not expressly referred to in the language of section 45, putting to one side the heading and the long title of the Act and so on.
Our step one is that we demonstrate, including from context, that there is a constructional choice arising. That is to say that this is a case where “mutilates” has various meanings, and relevantly here there are perhaps two meanings. One is the ordinary common parlance meaning, so to mutilate some accounting records or the like.
The other, we say, which arises as a constructional choice, is the meaning of “mutilates” which is shown as deriving in a context which is female genital mutilation and I will come to that but that is not to incorporate all the nuances or practices of female genital mutilation which has a cultural context and the like.
KIEFEL CJ: Is it your submission that the term “female genital mutilation” refers to all practices?
MR KELL: Yes.
KIEFEL CJ: Including the generally defined four which appear in the Family Law Council report?
MR KELL: Yes, your Honour.
KIEFEL CJ: There is a lot written about the terminology and its origins and how it changed from a reference to female circumcision to female genital mutilation by the time of the Family Law Council discussion paper which is based on this and the reasons for the selection of the term “mutilation” not “circumcision”.
MR KELL: Yes. I respectfully agree with and adopt what your Honour said. Just going back to the issue or recognition that the term “female genital mutilation”, that compound concept, is not within the language of 45(1) expressly; we say that of course that is right but it does not prevent the argument that we adopt of the constructional choice and will come to and expand that.
The other aspect is that, if one looks at the language of section 45(1), there is an obvious affinity to the concept of female genital mutilation from the words that are used within the section itself. The section itself uses the language of “excises, infibulates or otherwise mutilates”. In addition to that, the subject matter of the offence is very particular. It is far removed from assault provisions and the like. It is dealing with female genitals.
EDELMAN J: Does that not suggest that the contrast is not really between ordinary parlance and some special meaning? In ordinary parlance, context is always relevant, and context in ordinary parlance might require one to consider whether words such as “excises” or “infibulates” were used in the context of the use of the word “mutilation” in ordinary parlance.
MR KELL: Yes. When I say “ordinary parlance”, I am referring to ordinary parlance, which is a criticism here ‑ ordinary parlance without particular context.
EDELMAN J: No parlance ever occurs without any context.
MR KELL: That may be right but what we say here is that ultimately the construction for which we contend is a construction which is, when one has regard to context and purpose, properly viewed in that sense as the ordinary meaning that one ends up with.
GAGELER J: Do you offer a precise definition of the words “excises” and “infibulates” and, if so, where can we see it written somewhere?
MR KELL: Is your Honour asking whether it is in the materials generally? I will take your Honours to the categories of female genital mutilation from which those two concepts are drawn, but clearly what was in issue in these proceedings was what was referred to as the umbrella term, the “otherwise mutilates”.
GAGELER J: It is just possible that the umbrella term is informed to some extent by the content of the earlier expressions, at least on one rather orthodox approach to statutory interpretation.
MR KELL: The answer to that, respectfully, is it is and it is not. It is informed in the sense that it is making ‑ that those terms which have an obvious affinity like “mutilates” with the concept of female genital mutilation, which I will come to, so that is relevant. Beyond that, we submit that it is not a ejusdem generis‑type case, and that was made ‑ ‑ ‑
GORDON J: Are not those terms, that is, those words – excision, infibulation, and otherwise mutilates – reflecting what the Chief Justice put to you before, categories that appear both in the discussion paper from the Family Law Council, and then ultimately the Family Law report?
MR KELL: We say yes.
GORDON J: I mean, they are the words that are used. When one looks at them in terms of the way in which they have been described, one is infibulation, one is excision ‑ ‑ ‑
MR KELL: Yes.
GORDON J: So there is an explanation as to what it was intended that those particular things might cover, and between them there are degrees.
MR KELL: Yes, and that they cover the field, as it were, of those four categories which are the least extreme to the most extreme of female genital mutilation, and I will come to them, but just one the ‑ ‑ ‑
GORDON J: Do they not, picking up both the question you were asked by Justice Gageler and also what was put to you by Justice Edelman, give you the context? The words were not just plucked out of the air. They were chosen for a particular purpose.
MR KELL: Yes, we say they do assist with context, yes. Can I just, because I did refer to ejusdem generis, so at appeal book 492 at paragraph 518 – or from appeal book 492 from paragraph 516 the Court of Criminal Appeal noted that the appellants raised ejusdem generis as a means of seeking to argue that “otherwise mutilates” – that the first two terms, being the very extreme forms of female genital mutilation, “infibulates” and “excises”, so “excises” is the cutting off completely of, for example, the clitoris and “infibulates” includes the removal and sewing and the like, that somehow “otherwise mutilates” should be understood as within a similar genus of very significant injury, and that was rightly rejected, we say, by the Court of Criminal Appeal, paragraphs 516 through to 519.
At 518 at the top of page 493 the court indicated – or referred to the Crown’s submission that the expression “otherwise mutilates” and the term “mutilates” is an umbrella term. At 519 the Court of Criminal Appeal rightly made findings upholding those Crown submissions, including a finding that:
The term “or otherwise mutilates” is an umbrella term intended also to capture other forms of mutilation that are to be prohibited ‑
and is not to be understood in an ejusdem generis sense. Can I turn to some of the material in the first step which is the step that we say assists in indicating that there is a constructional choice. That is material beyond the context that arises from the straight reading of the provision which I have been taking your Honours to now.
We say that the word “mutilates” is to be construed in the context of a provision dealing with female genital mutilation. I will come to the question of what that context means for the ultimate construction but we say that to mutilate in the context of female genital mutilation connotes all forms of injury which will often involve cutting to the female genitals which is deliberately inflicted.
If I can go the Family Law Council’s report, which is in the joint bundle of authorities at 646, I have touched on some of these aspects already. The Family Law Council report starts at page 631. It is a report dated June 1994.
KIEFEL CJ: This had not been published at the time of the second reading speech, which was May 1994.
MR KELL: Yes.
KIEFEL CJ: Was it in the same form as the discussion paper?
MR KELL: For relevant purposes, the matters to which I will draw attention, yes, there is no relevant distinction. The discussion paper is at 585. Some of the intentions in the discussion paper were put forward as necessarily the preliminary view of the council because it was a discussion paper and then those preliminary views about prohibiting female genital mutilation included views in the discussion but your Honour is right. The discussion paper is dated 31 January 1994, so before the second reading speech and the like. I will give your Honours, where I can, references to both, but we say there is no relevant difference on the points being advanced.
KIEFEL CJ: There is no issue but that the reference in the second reading speech to the report of the Family Law Council is a reference to the discussion paper.
MR KELL: Yes.
KIEFEL CJ: There is no dispute about that?
MR KELL: No. If your Honours go to appeal book 646, at paragraph 2.01, at about line 21, it is made clear by the Family Law Council that:
Female genital mutilation “is the collective name given to several different traditional practices that involve the cutting of female genitals.”
So reference to the cutting and then at 2.02 at about line 35:
In this paper –
having referred to there being four procedures and the like:
when the term “female genital mutilation” is used it is meant to embrace all types of the practice where tissue damage results; for example, damage manifested by bruising, contusion or incision.
Then at 2.03, there are the four categories referred to, and I will just come back to that. But a matter that we say is important is that both the discussion paper and the Family Law Council report refer to what was accounts and reports at the time, referred to as being anecdotal evidence of the occurrence of female genital mutilation in Australia and perhaps if I go to the discussion paper which is before the second reading speech at appeal book 598. At paragraph 2.30 ‑ ‑ ‑
KIEFEL CJ: I think you meant the joint book of authorities.
MR KELL: Sorry, yes, I apologise. The joint book of authorities at page 598.
KIEFEL CJ: Is this anecdotal evidence particularly helpful for construction? Is it not really the terms of the Family Law Council report or discussion paper about what female genital mutilation comprehends more important?
MR KELL: It is part of the material that was before the Family Law Council in making the recommendations that it did. But when it is referred to as anecdotal, it is information gained by DIEA – so that is the Department of Immigration and Ethnic Affairs ‑ and then the third bullet point down, that the material that was being reported by the Department of Immigration and Ethnic Affairs was that the practice included cutting the clitoral hood, being practiced in the Malaysian community in Western Australia.
So that was part of the material, and that can be found similarly in the report at page 654 of the joint bundle of materials. Just in the discussion paper as well, at page 591, at paragraph 2.01, at about line 17 on the page, there is reference to:
In this paper when the term “female genital mutilation” is used it is meant to embrace all types of circumcision, other than mere ritual, when an incision is made in the girl’s genital area.
So the context concerning the recommendations that were to be made by the Family Law Council included female genital mutilation across four categories, which I will come to, with the concern being, relevantly, an incision – that is to say, cutting of the girl’s genital areas.
EDELMAN J: Dr Kell, is there any reference in the discussion paper that is equivalent to the sentence which follows that which you took us to in the Family Law Council report that refers to Armstrong?
GORDON J: The next paragraph.
MR KELL: Yes.
EDELMAN J: And Armstrong’s suggestion about the different types of circumcision?
MR KELL: Yes. The references to Sue Armstrong are in paragraphs 2.02 of the discussion paper at 591. For the transcript I will give the reference. Sue Armstrong is referred to at page 646 of the joint book of authorities in the context of the report.
KIEFEL CJ: Is the reference in 2.02 of the report to the two sentences, which are the third and fourth:
Those who oppose the practice call it “genital mutilation”.
I think you have taken us to this sentence:
In this paper when the term “female genital mutilation” is used it is meant to embrace all types of the practice –
MR KELL: Yes. I will just identify the four categories which are referred to. On that page, at 646, at 2.03 there is:
The first, and least severe form, is called ritualised circumcision. In this case the procedure may be wholly ritualised . . . In other forms of ritualised circumcision the clitoris is scraped or nicked.
So a nick or cutting. The Council then put to one side the ritualised form of circumcision, that not being a subject of recommendations for prohibition, of course.
BELL J: Did that involve some rejection of the point that Ms Armstrong was making, that a practice involving even ritualised circumcision or mutilation, or however you wish to describe it, carries its risks of the accidental injury to the child’s genital area?
MR KELL: We say not, but perhaps in part Professor Armstrong was referring to the sharpness of an instrument. It is conceivable that wholly ritualised circumcision:
(e.g. where there is cleaning and/or application of substances around the clitoris) ‑
may not raise directly the same concerns that Professor Armstrong identified. One thing we say is relevant and can be taken from the Family Law Council’s recording of the Armstrong concerns is that it is consistent with an intention by the Council, and subsequently an intention by Parliament, that one would not be looking at prohibiting by reference to categories or prohibiting by reference to the second, third and fourth categories – I will deal with the second reading speech later – in part because the Council put an important caveat on the categories themselves, which is the reference to Ms Armstrong’s report that there is an inherent ‑ even with the least severe form of ritualised circumcision involving cutting there is an inherent risk to the child.
One factor, as Ms Armstrong indicated, is that, depending on the skill of the circumciser – we are not talking generally about medical procedures in a hospital – and the struggling of a child, one can readily foresee circumstances where what started what was intended to be a ritualised cutting became, unfortunately, a cutting‑off, for example, of a clitoral hood or the like.
BELL J: Or a ritualised ceremony involving no intention to cut, but where, as I understand it, the respondents submit was the intention here – a touching of the genitals of a young child with an instrument such as forceps.
MR KELL: Yes, yes.
BELL J: As I understand Professor Armstrong, if it were possible to frame an offence that captured that conduct, that would have an important public value too, because of the high risk of a ritual circumcision.
MR KELL: Yes.
BELL J: My point is, on one view, the Family Law Council itself recognised a difficulty with criminalising ritualised circumcision to the extent that it did not involve cutting.
MR KELL: Yes, that is right, and we say that clearly the offence requires proof of the verb “to mutilate”, and that relevantly in this case includes – or is the cutting, the cutting of the clitoris. Just on that, I said that one of the aspects was the Armstrong caveat about the practical utility of some of these categories. The second matter, just on that topic, and I will just draw attention to it, is the explanatory note. I am doing this slightly out of order, but at page 721 of the joint book of authorities, there is the explanatory note to the 1994 Bill. The first paragraph of the explanatory note refers to “cutting”. So:
Procedures involving the incision –
Just pausing there, so the cutting, rather than excising:
Procedures involving the incision, and usually removal –
Pausing there, but not invariably or inevitably ‑ so the incision:
of part or all of the external genitalia of young females are practised by some groups as a matter of custom or ritual. The practice can lead to infection, haemorrhaging, dysuria (painful urination) –
and the like. So there was again a recognition that what would be the cutting of the clitoris, such as was the Crown case here, which may be viewed as the first of those four categories of female genital mutilation, presents the Armstrong risk. But it also presents the risk that the legislature perceived, which was that the cutting of the clitoris of a prepubescent girl can lead to infection, which obviously may have serious long‑term consequences, but simply the dysuria, the painful urination, and that those were matters that were the subject of legislative concern.
Can I just take your Honours as well to the Queensland Law Reform Commission report, which is at 806?
KIEFEL CJ: It postdates the legislation, does it not?
MR KELL: Yes, barely, but yes.
KIEFEL CJ: So how do you make it, as an extrinsic material, relevant to the legislation?
MR KELL: We say it is consistent with what is in the Family Law Council report and within the area that as at the time of – as at 1994 that the area of discourse for female genital mutilation included ‑ ‑ ‑
KIEFEL CJ: There were a number of reports and the Family Law Council obviously had regard to them. I think they mentioned some – the World Health Organisation had been looking into this, the United Nations; other agencies had been.
MR KELL: Yes. So it is consistent with that material – and I will mention it just in passing – which shows that the nicking of the clitoris is a form of what was recognised as female genital mutilation, but in one sense it is consistent with and does not take it further than the Family Law Council material.
BELL J: Is there a distinction between a cut and a nick for the purposes of this argument?
MR KELL: I think both ‑ ‑ ‑
BELL J: Perhaps you could tell us what the distinction is, if there is one.
MR KELL: They may be descriptions of more or less the same thing. A nick, at least on one view, may be a form of – a cut of less severity than perhaps – so one may put a savage cut into a person which would not similarly be necessarily described as a nick or a savage nick, but it is both ‑ ‑ ‑
BELL J: Just to come back to your position as to the error that the court below made, the court below accepted that either a cut or a nick could amount to mutilation. The error that they saw in the primary judge’s reasons was the inclusion of the words “to any extent” which suggested that a de minimis injury would suffice, and I just want to be clear about this. You accept for the purposes of the offence created by 45(1) that a de minimis injury is within the expression “otherwise mutilates”?
MR KELL: We say that there needs to be – it depends what one means by “de minimis”. We say that there needs to be proof of injury. If I could just go to where I was on the summing‑up and the like, just by reference to the directions; I was at appeal book 99. There is a question of characterisation of what one means by “de minimis injury”, particularly where the context is here the deliberate – by definition, it is the deliberate infliction for non‑medical reasons of injury to the clitoris relevantly of a prepubescent girl. That is the context.
NETTLE J: In that context, you say any cut, no matter how small, is sufficient.
MR KELL: Yes, we do. At appeal book 99, his Honour refers to:
The word “mutilate” in the context of female genital mutilation means to injure to any extent.
So there has to be an injury. His Honour is not there using the language of de minimis but he is saying that you must find injury to any extent but:
In the context of this trial, a nick or cut is capable of constituting mutilation ‑
So that is what we advance, which is that a cut or nick to the genitals of the female girl will constitute mutilation, particularly having regard to context and purpose.
BELL J: I think, Mr Kell, it is perhaps uncontroversial that to direct injury to any extent embraces an injury that would, in ordinary legal parlance, be a de minimis injury.
MR KELL: Yes. It needs to be injury is what we say.
EDELMAN J: Was there an issue at trial as to whether the injury might have been de minimis?
MR KELL: No. The question was, by reference to paragraph 99, the Crown case was a nick or cut and relevantly it was either – it was put in different ways but it was a cut to the clitoral hood, the clitoral head, and a third possibility which was that there may have been removal of part of the clitoral head or the clitoris, and that of course was put to one side after the new evidence that emerged from the Court of Criminal Appeal. In the context of this trial, the question that arose is really what I have drawn attention to on page 99 of the appeal book.
BELL J: Just to understand how the Crown case was put at trial, there was I think an issue about the relationship between the principal count and the alternative lesser account and that was resolved by saying that the lesser account might be available if the jury were not satisfied that there had been any injury to the clitoris particularised in the primary count but found that there had been an injury amounting to actual bodily harm to some other part of the labia. Is that how it was put?
MR KELL: Yes, it was some other part of the female genitals.
BELL J: So does that carry with it that in relation to the principal count the Crown submits the trial judge was right to say injury to any extent sufficed but in relation to the alternative lesser account it was necessary to make clear that the injury had to be of a kind that was not merely transient or trifling, to refer to Justice Swift’s definition of assault occasioning actual bodily harm in Donovan?
MR KELL: Yes.
BELL J: You accept that that is how the Crown case was to be understood?
MR KELL: Yes. I will just try and see if we can give your Honours the reference in the summing‑up to where his Honour – page 101, at the top, and then at the bottom of the prior page, at page 100, your Honours will see the definition à la Donovan of actual bodily harm. In paragraph 15 there, at page 100 at line 49, there will be a reference back to the written directions which I have taken your Honours to.
GORDON J: I know you have been asked this a number of times, Mr Kell, but can I just deal with this question of what is sufficient for injury for section 45.
MR KELL: Yes.
GORDON J: There has been a lot of focusing on nicking and cutting, because that was what was the issue at trial here.
MR KELL: Yes.
GORDON J: In the final Family Law Council report, it seemed to suggest that for the purposes of the damage that was done, it would extend to include bruising – it uses that word in paragraph 2.02. In other words, it identifies as a matter of language that incision is one of the things but it also identifies that there can be other damage, other injury.
MR KELL: Yes.
GORDON J: Do you accept that that is right? In other words, I understand the issues here were cutting or nicking.
MR KELL: Yes, we do. With respect, yes, we do. We do not say that injury which is deliberately inflicted manifesting in bruising would not be within the scope of the offence and your Honours can see reference to “scraping”. So, for example, on that same page that your Honour took me to at 646 of the joint book of authorities, there is reference to – in contrast to the nicking of the clitoris or the cutting, the scraping – which similarly does not entail, you know, a wounding, a cutting of the skin or the whole skin and that would be consistent with deliberately inflicted conduct that can lead to bruising of the genitals.
It is again difficult to perceive any parliamentary intent as to why what might be perceived to be a lesser form of injury would not be within the scope of the offence in context. Obviously matters become relevant to sentence decisions to prosecute, perhaps, and the like but in terms of the ambit of the offence, yes, we say it would be within it.
So what I hope to have drawn from the material that I have taken your Honours to is to make clear that in the context of female genital mutilation, that to mutilate does not require injury of a high order of the type that was found by the Court of Criminal Appeal and that an available meaning of the term “to mutilate”, as was the case here, includes to cut or nick ‑ to cut the genitals of a female child. I have referred to the affinity of the language, and the terms within the provision of section 45, that they have on their face an obvious affinity with the concept of female genital mutilation.
So we say that the available meaning does give rise to a constructional choice as to whether within section 45 the term “mutilates” should be understood as conveying injury simpliciter rather than if it is perceived, as the Court of Criminal Appeal appeared to conceive by reference to ordinary meaning or common parlance, a higher level of injury, that the construction for which we contend is an available construction.
The second and next step following on from that is to establish that female genital mutilation, the concept is so centrally relevant as a matter of context to section 45 that the meaning of “mutilates” in that context, i.e. female genital mutilation, which is the meaning consistent with the meaning the Crown has propounded, was the intended meaning of “mutilates” in section 45.
In this context we submit that there is identified a clear legislative purpose of section 45 which was to enact a clear and emphatic prohibition on all female genital mutilation procedures which involved tissue damage, cutting and the like. We rely on a number of features of statutory context and extrinsic material to make good these submissions, so I will quickly take your Honours through those.
The first I have referred to, which is the language of the provision itself, that the terms “excises” and “infibulates” are squarely in the context of female genital mutilation, and I take your Honours to the Family Law Council report, the third and fourth categories which are on page 647 of the joint book of authorities. The third category is that of excision or clitoridectomy, and fourth is infibulation ‑ the most severe form being infibulation. Those terms, “excises” and “infibulates”, are two of the verbs which are picked up in the offence provision ‑ again, the words being used instead of other generic‑type words that might be used such as “wounds” or the like.
The second point of context is that the heading to section 45 – I will just go back to volume 1 of the joint book of authorities at page 13. The heading for the section is “Prohibition of female genital mutilation”. We recognise that the headings to sections are not part of the Act. Including by reference to section 35(5) of the Interpretation Act they may be considered as extrinsic material that assists in interpretation.
The third factor is the long title to the Act, and if one goes to the joint book of authorities at page 26, the long title is set out at about line 38 on that page. So the amending Act was:
An Act to amend the Crimes Act 1900 to prohibit female genital mutilation.
The fourth important matter of context was the explanatory note. I will just identify that again quickly at the joint book of authorities, volume 2, at page 721, and I have referred to the reference there to:
Procedures involving the incision –
i.e. cutting of part of the external genitalia, and also the risks of the practice leading to infection or painful urination. The fifth matter of context which we say indicates there was a clear intention to prohibit all forms of female genital mutilation causing injury is the discussion paper of the Family Law Council, and its report, and I have taken your Honours to part of that. That is referred to in the second reading speech.
I will first just quickly go to the reports themselves again and then I will come back to the second reading speech. So the report of the Family Law Council is at page 631. I have taken your Honours to the four categories. In terms of the recommendations and the emphatic statements of the Family Law Council, and this is in terms of the recommendations, at page 636 at about line 18 ‑ ‑ ‑
BELL J: Is there a paragraph number?
MR KELL: No, it is just recommendations relating to paragraph 5.23.
BELL J: Thank you.
MR KELL: So under the heading:
The practice of female genital mutilation in Australia
Council considers . . . and has concluded that female genital mutilation is a practice which should not be accepted in Australia.
Then just jumping to page 637, at about line 29, under the heading:
The need for legislation –
With a cross‑reference into paragraph 6.41, there is a recommendation at about line 28:
there should be special legislation which makes it clear that female genital mutilation is an offence in Australia.
Then at page 638, so the next page, at about line 38, under the subheading:
Recommendation 4 (para 6.80) Content of legislation
Council recommends that to be fully effective legislation should cover the following matters: –
And then relevantly (a):
It should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence –
BELL J: That would include the purely ritual form of the practice.
MR KELL: Except that the Family Law Council had made clear in its discussion ‑ ‑ ‑
BELL J: That they were confining its meaning to something more than purely ritual.
MR KELL: Exactly, that effectively requires injury.
GORDON J: That is that passage I took you to at 2.02 where they talk about reference to female mutilation in this paper extends to and includes bruising.
MR KELL: Yes, quite right.
KIEFEL CJ: In relation to recommendation 4 are you referring to 4(b) as well?
MR KELL: Yes, thank you. In similarly emphatic language it should be made clear that female genital mutilation, in all of its forms, constitutes child abuse under Australian child protection legislation.
GAGELER J: Did that occur?
MR KELL: Whether there was corresponding legislation under child protection legislation, I am not certain, your Honour.
KIEFEL CJ: Is the Family Law Council speaking, though, of whether it constitutes child abuse under existing child protection legislation rather than creating more ‑ ‑ ‑
MR KELL: Yes.
KIEFEL CJ: It refers to it as “child abuse” at a number of points.
MR KELL: Yes. Can I just give your Honours the reference at page 678 ‑ that is paragraph 5.23, which was drawn from the recommendations. As I indicated, the discussion paper had recommendations to similar form, although necessarily stated, because it was a discussion paper. I will give your Honours references to those ‑ at pages 612 and 613 in the boxes, with the heading “Council’s preliminary conclusion”.
KIEFEL CJ: Mr Kell, that might be a convenient time for the Court’s morning break.
MR KELL: Thank you.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.31 AM:
KIEFEL CJ: Yes, Mr Kell.
MR KELL: Thank you, your Honours. Could I take your Honours to the second reading speech in the joint book of authorities at page 762.
GORDON J: What tab number is that, please?
MR KELL: This is at tab 24.
GORDON J: Thank you.
MR KELL: The first point is that the Minister made references in a number of points to the Family Law Council and its report and that can be seen on page 762 at about line 45. Then the next paragraph where it said:
It was noted that the evidence relating to the incidence of FGM in Australia –
et cetera; the “It was noted” is the Family Law Council report or discussion paper. Then again at page 763 on the last paragraph of that page at about 46, again reference to the Family Law Council. There were also indications when one reads the second reading speech of effectively an endorsement of the position taken by the Family Law Council in the sense of there being an emphatic statement made about the practice and that can be seen similarly borrowing the language or the message in the Family Law Council. So at page 763 at about line 15:
However, the Government is of the view that a clear message should be sent to the community that the practice is not acceptable in this State.
Similarly, at 762 at about line 29 the intention that:
This bill will make the practice of female genital mutilation a criminal offence in this State.
At 764 ‑ ‑ ‑
KIEFEL CJ: What do you say about this statement on page 763 which was the focus of the Court of Criminal Appeal’s reasons, the reference to there being “three forms of FGM”?
MR KELL: Yes, we say that that statement does not – it is obviously something that we need to deal with and it was referred to in the Court of Criminal Appeal. We say that the fact that there is reference to only three forms of FGM in the second reading speech does not meaningfully assist in construing the words “otherwise mutilates”, in part because it is clear, returning to the language of the section, that one has “infibulation” and “excises” taking up two of the recognised forms of female genital mutilation and “sunna”, which was the third one, can be picked up by those two verbs.
So that if the legislature was intending to proscribe only those procedures falling within the first three forms of FGM, then the term “otherwise mutilates”, on that view, would have been surplusage, we say, and that is a most unlikely outcome. It is intended clearly that the words have work to do.
BELL J: To the extent that you draw on the second reading speech for its references to the Family Law Council’s report, the report sets out four types of female genital mutilation and ranks them in order of severity and one sees the Minister saying that what is proscribed are three forms of female genital mutilation in order of severity, picking up the very concepts that one finds in the Family Law Council’s report and notably not including that which was covered by the least severe, namely, ritual circumcision or ritual female mutilation.
MR KELL: It is apparent that the Minister does not refer in terms to that fourth category, that is correct, but it is also apparent from reading the second reading speech as a whole that there is no suggestion ‑ other than that reference to what can be sought to be drawn from reference to those three categories, there is no suggestion of a disagreement with the views of the Family Law Council and its recommendations.
KIEFEL CJ: Well, you have referred to – the submission which you made earlier really is that the second reading speech is based in large part on the Family Law Council report.
MR KELL: Yes.
KIEFEL CJ: It says there are four forms, so when the second reading speech says there are three, is that accurate?
MR KELL: Are the Minister’s words accurate?
KIEFEL CJ: Yes.
MR KELL: No.
KIEFEL CJ: The second reading speech says “The three forms of FGM in order of severity”. It does not say the three more severe forms of FGM.
MR KELL: Yes.
KIEFEL CJ: Do you understand the distinction I am referring to?
MR KELL: Yes.
GORDON J: It is odd, is it not, because you have the questions on notice before the Bill is put in which refer to the four forms, covers all practices.
MR KELL: Yes.
GORDON J: You have what appears in the Legislative Assembly, from the materials in that extract, recognition it is dealing or intending to deal with the four categories, and then you have this hiccup in the middle.
MR KELL: That is right, and when I say is it accurate, it is accurately recorded.
KIEFEL CJ: In the sense of reflecting the Family Law Council report.
MR KELL: Yes, that is right. It is not and also nowhere in all the materials is there any suggestion that there are other than the four categories of reports.
KIEFEL CJ: In your reference you took us to various points in the second reading speech which refers to “the practice”. I understood you to say that that was intended to encapsulate all forms.
MR KELL: Yes, that is right.
GAGELER J: There is a reference at page 762 to the World Health Organisation having condemned the practice at an international level.
MR KELL: Yes.
GAGELER J: Where do we find that condemnation in the materials?
MR KELL: We have included in our submissions a footnote to the WHO material. Sorry, I will just give your Honours a reference.
KIEFEL CJ: Is the WHO material amongst the materials before the Court?
MR KELL: No, it is not.
KIEFEL CJ: So we find it ourselves, do we?
MR KELL: We were in part concerned about putting overseas material, and adding to the – we will see if we can find something over the lunch break.
KIEFEL CJ: Is it the WHO material that the Family Law Council referred to?
MR KELL: Yes, and we will see if we can ‑ ‑ ‑
KIEFEL CJ: Is that one of the inter‑agency statements that looked at the practice in Africa in particular?
MR KELL: Yes. And as I understand – and, your Honours, I was looking at, for example, footnote 19 of the appellant’s submissions at page 12 but those dates are later in time, so that is 1997.
KIEFEL CJ: What is the WHO report – can you refer us to where the Family Law Council refers to a WHO report? I think it was only one that the Council refers to.
GORDON J: I think it is paragraph 3.06, and it is dealing with an overview of the effects of female genital mutilation.
MR KELL: Thank you, your Honour.
GORDON J: If that is the WHO report that is being referred to by the second reading speech.
KIEFEL CJ: Yes, that is a journal article.
MR KELL: That equates to footnote 31 ‑ ‑ ‑
GORDON J: Footnote 27, I think. Footnote 27 refers to an article published by the World Health Organisation on female circumcision.
MR KELL: Yes.
GORDON J: Then the resolution is dealt with at paragraph 4.09.
MR KELL: Yes. So I think I was at cross‑purposes. Yes, at the discussion paper it is footnote 27 at page 601. And for later in the report, it is at page 662, at footnote 31 – but the same article, the 1992 World Health Organisation article.
GORDON J: The point being made though is they did not have the report at the time the legislation was being debated, did they? So they had to be working off the discussion paper.
MR KELL: Yes, I think that is right, for the Legislative Assembly, the report had been published by that time, but certainly for the Legislative Council, that was the case.
GAGELER J: So will you at some stage identify precisely the World Health Organisation document or documents being referred to?
MR KELL: Yes, we will, your Honour, and we will see if over the lunch hour we can obtain and provide your Honours with a copy of it.
EDELMAN J: Is there any precise definition anywhere of exactly what sunna is?
MR KELL: There are references to it being an uncertain term that has different meanings in different contexts and in the discussion paper itself there is reference to the term at the top of page 592 as being an alternative phrase that was being used for the particular category.
EDELMAN J: At 662, paragraph 3.10, it seems to be equated to a form of ritualised circumcision.
MR KELL: Yes. In part I had intended to refer – so in the context of the report at 646 at about line 50 that:
The word “sunna” in Arabic means “tradition”, but it also means “tradition of Prophet Muhammad” which indeed is a serious misnomer –
and the like. The trial judge himself referred to uncertainty surrounding the meaning of “sunna” and at pages 646 to 647 within the context of the Family Law Council report there is reference to:
Use of the term “sunna” can lead to the incorrect linking of clitoral circumcision with the Islamic religion –
and the like. So it seems to have been a term that is subject to some criticism because of its uncertainty of meaning or its variability of meaning. Just on the second reading speech, I was at page 763 and a further reference is a bit further than halfway down the page at about line 35, there is a paragraph beginning:
This provision will also apply ‑
and the third sentence:
The provision thus aims to prevent FGM from being practised at all in this State.
I think I indicated quickly that there is no indication in the second reading speech of the legislature disagreeing with the Family Law Council’s recommendations and that was recognised also by the Court of Criminal Appeal. I will give your Honours the reference without necessarily taking your Honours to it.
At appeal book 491 in paragraph 514, Court of Criminal Appeal seem to recognise that there was an apparent intention of the legislature to adopt all the recommendations of the Family Law Council report, including prohibition of ritualised circumcision, but one is left with an uncertainty as to what the Court of Criminal Appeal was identifying, if anything, in terms of the legislative purpose, which is part of the criticism that we make – that there is no purposive interpretation which is developed in advance by the Court of Criminal Appeal.
BELL J: The Court of Criminal Appeal appears to have accepted the evident purpose of the provision was to criminalise female genital mutilation. In issue is what the Parliament intended to be covered by that portmanteau term in terms of the offence that it provided.
MR KELL: Perhaps I should just illustrate part of our criticism of the context. In the Court of Criminal Appeal judgment at appeal book 480 at paragraph 475 there is that reference in the context of the meaning of “mutilates”:
the disparity between an apparent intention of the legislature to adopt all the recommendations of the Family Law Council Report ‑
So there seems to be acceptance and we endorse that, and there is nothing to the contrary, putting to one side what might be said to be the statement of the Minister about the three forms, the disparity in the statement by the Minister. So there is that statement or recognition by the Court of Criminal Appeal. Then at page 491, at paragraph 514, at about line 50 and following, again there is recognition by the Court of Criminal Appeal that:
there was no indication in the speech of any disagreement with the Family Law Council’s recommendation that all forms of female genital mutilation be prohibited, ultimately, the Family Law Council Report . . . while shedding light on the context and purpose . . . do not in our view permit the conclusion that “otherwise mutilates” was intended to encompass all forms of injury ‑
Again, we say no analysis about why what is recognised seemingly to be a legislative purpose is not given effect to, or given greater recognition, and then that can be seen particularly at appeal book 494, at paragraphs 523 and 524. Paragraph 523, “if,” and we say it clearly was:
if the intention of the legislature . . . was to encompass all forms of female genital mutilation, then in our opinion, legislative amendment is necessary in order expressly to incorporate the fourth classification of female genital mutilation –
And then similarly in paragraph 524, a recognition that:
the legislature clearly recognised the dangers involved in even ritualised circumcision.
Then there is a reference to “potential evidentiary difficulties” and a suggestion about legislative reform. We say that there is no purposive interpretation that is adopted or advanced, given recognition to, in the judgment of the Court of Criminal Appeal.
There is a recognition of what the legislative purpose was, but simply a suggestion ultimately that, well, amendment might need to be made – and partly because, it seems, “mutilates”, no matter the context, does not extend further than what the Court of Criminal Appeal referred to as the ordinary meaning, and I will come to that very quickly.
KIEFEL CJ: Mr Kell, you have taken us just a moment ago to paragraph 475 of the Court of Criminal Appeal. Their Honours seem to be saying that the ambiguity does not arise from the text or context, but from the extrinsic materials themselves. What do you say about that approach to construction?
MR KELL: I am just trying to find 475.
KIEFEL CJ: Their Honours appear to be saying that the ambiguity does not arise from the statute, in which case you look to the extrinsic materials.
MR KELL: Yes.
KIEFEL CJ: Their Honours seem to be saying that the ambiguity arises from the second reading speech, which is to say the extrinsic materials themselves and you interpret the statute by reference to the ambiguity arising in the extrinsic materials.
MR KELL: Yes. We say that, consistent with the approach that we adopt, the correct step one is to look to whether there is a constructional choice available – what is the meaning of the term “mutilates” and I have taken your Honours through that step. One does not need to search for ambiguity by reference to extrinsic material in the way that is referred to there, that our construction and the construction advanced by the Crown is orthodox.
Can I just, just on the point that I was raising, just make this clear too – I seek to make this clear. In paragraphs 523 and 524, where there is reference to if Parliament intended the fourth category of FGM to be included within section 45, then amendment would be necessary. The construction that the Court of Criminal Appeal has arrived at and the result, that is to say the test that – and I have taken your Honours to that before, but the test in paragraph 521, at the bottom of 493 which is that effectively there must be medical evidence to the effect that the body part be rendered:
imperfect or irreparably damaged –
KIEFEL CJ: So I think what you are saying is that in paragraph 475 their Honours are saying there is no ambiguity because the word “mutilates” in its ordinary meaning is clear.
MR KELL: Yes.
KIEFEL CJ: I should have added to my inquiry of you, but on your argument the word “mutilates” read under the umbrella term “female genital mutilation” itself creates no ambiguity. There is no need to resort to the extrinsic material. Do you go that far? You say there is constructional choice, so you say there is some ambiguity.
MR KELL: We accept that there is a possible alternative argument, which was the argument advanced by the defence and ‑ ‑ ‑
KIEFEL CJ: Do you say there is ambiguity, or not? Are you saying that there was such an accepted understanding of what female genital mutilation means as seen by the Family Law Council report as covering all practices that “mutilates” simply is understood contextually and there is no ambiguity and therefore no need to resort to the extrinsic materials or do you say you do need to resort to the second reading speech and the other extrinsic material?
MR KELL: We accept that it is appropriate to have recourse to the extrinsic material – the second reading speech. So there is not ambiguity in the sense of the Interpretation Act requirement, if that be so, to demonstrate ambiguity. We accept that our construction is the appropriate and the attractive construction that arises in part from just looking at the text and words of the provision as they were, but we do not suggest that your Honours cannot have regard to the second reading speech and the like, including to make clear what is the context and purpose of this term.
KIEFEL CJ: You do not need ambiguity, is what you are saying? You can look at the extrinsic materials in any event?
MR KELL: Yes.
GORDON J: As I understand your argument, it is the first limb of your Interpretation Act, is it not, and that is you say as a matter of context we have got an Act dealing with, as I understand your argument, a prohibition on female genital mutilation. One sees that by the provisions you have taken us to, including the long title of the Act and all of those things, and the other words that are in the section. Then do you not, as I understand it, use the Family Law Act to confirm that that construction that you have put forward, consistent with 34(1)(a) – I always get your provisions mixed up.
MR KELL: Yes.
GORDON J: So you do not need ambiguity. You use it for confirmation of the construction you have put forward. Is that the way you put it?
MR KELL: Yes, it is, and (1)(a) is looking at what is the meaning of words having regard to the context and purpose and, from memory, (1)(b) ‑ one of the subparagraphs is referring to ambiguity. So we say that we come in within (1)(a) of our Interpretation Act.
EDELMAN J: It is not really a question of constructional choice or a stepped approach. The short point is you say your submission is contextual and you say that the respondent’s submission is not contextual.
MR KELL: Yes. I just make the point, to finish the point which I was making, which was in connection with paragraph 521 and the three versus four categories of FGM, that the holding of the Court of Criminal Appeal itself, which is to require the body part to be irreparably damaged or rendered imperfect, is not itself within what would be the categories 1, 2 and 3, or not necessarily within categories 1, 2 and 3.
So the very holding of the Court of Criminal Appeal in terms of the test is seemingly recognising that what we say would be the fourth category is part of ‑ ‑ ‑
BELL J: Is it doing that or is it looking to the text of the offence that the legislature has created and seeing that in addition to the particular forms of injury that might be done this offence covers some broader field under the rubric “otherwise mutilates”? What I am putting to you, Mr Kell, is that the Court of Criminal Appeal’s attention is directed to the terms of the provision, accepting that it is within a context including the intention to proscribe a practice known as female genital mutilation and it then looks at, accepting that is what might be described as the broad purpose, what is it the legislature has in fact proscribed.
MR KELL: Yes.
BELL J: Your argument seeks to draw comfort from the second reading speech, albeit, as I understand it, you contend that the second reading speech has the difficulty that it contains an error as to the content of the Family Law Council’s report. So one is looking to confirm the meaning for which you contend by explaining away an error in the second reading speech.
MR KELL: Except that what the Court of Criminal Appeal is doing at 523 and 524 is seemingly indicating that, if the intention of the legislature was to bring in this fourth category of FGM, then legislative amendment would be needed. So on the one hand the Court is saying that and we say without reference really to legislative purpose but on the other hand it is curious and, in one sense, inconsistent with that that the holding of the court is itself a finding or putting a level of injury that is required that would in many cases be within the fourth category, unless it is excised of part of the clitoris. So, it is troubling and an indication, we say, that there is not a purposive construction that is given and ‑ ‑ ‑
BELL J: There are limits to purposive constructions and is not the Court of Criminal Appeal saying, in paragraphs 523 and 524, if the intention were to catch de minimis injury of any kind, then the legislature has missed the mark, and it might be appropriate for it to consider amendment.
MR KELL: Well, no. We say that part of the difficulty arising from the interpretation of the Court of Criminal Appeal is to – and we have set this out in the written submissions – to look to what is referred to as – to start, effectively, with what is the meaning of “mutilates” in its ordinary parlance and then to look to whether there is reason to depart from what it regards as the ordinary meaning.
We say that is inconsistent with the approach taken by this Court to determining the meaning of words such as “to injure”. I will just deal with these quickly, at paragraph 495, which is at 486. So the Court of Criminal Appeal’s conclusion that “mutilates” requires more than the causing of injury – and I have taken your Honours to that at paragraph 49 previously – appears to be based only on ‑ substantially on the ordinary meaning of “mutilates” and in 495 there is reference to:
One would not, in ordinary parlance, refer to a superficial graze as mutilation.
GORDON J: Then the positive side of that seems to be at 515. You took us ‑ so that is what is excluded on the Court of Appeal’s analysis and then what is included, that is, what is the minimum, some form of more serious injury than, say, a superficial shedding of the skin cells, or a nick or cut that leaves no visible scarring, and cannot be seen on medical examination to have caused any damage to the skin or nerve tissue. That is the bit that I do not understand at the moment, about the way in which the Court of Appeal puts it, because it seems to suggest that any damage to the skin or nerve tissue has to be serious injury, has to be more than any damage.
MR KELL: Yes, and which is consistent with what we say about the test being pitched, or being stated at a very high level of injury. Then at appeal book 493 at 521 there is reference in the conclusion:
For the reasons set out above, we have concluded, on balance, that the extrinsic materials relied on by his Honour do not permit a construction of “mutilates” that departs from its ordinary meaning and we consider that its ordinary meaning connotes –
Then there is reference to irreparably damaging the clitoris. The articulation of the “ordinary meaning” there relates back to what I had taken your Honours to in 493, which is the textual meaning identified there, and we submit, and we have set out the various linking paragraphs in writing, that what the Court of Criminal Appeal has identified as an ordinary meaning the court has then looked to extrinsic materials and other aspects, including what is suggested as context, as a reason to displace or rebut the ordinary meaning and concluded in 521 that the ordinary meaning has prevailed.
We say that that is an error of principle, that of course the correct approach is to determine the meaning of the provision to take into account issues of context and purpose simultaneously and at the same time to then arrive at a conclusion as to meaning, and that 521 indicates an error of principle here and explains why as a result the Court of Criminal Appeal has ended up with what we say is a very high level test of injury that we respectfully submit could never have been the intention of the legislature in the context of the protection of vulnerable children.
KIEFEL CJ: Are you moving to the second ground shortly, Mr Kell?
MR KELL: Yes, if I could turn to that now and I will deal with that quickly. So the second ground of appeal is that the Court of Criminal Appeal erred in excluding from the meaning of “clitoris” in section 45 the clitoral hood. This was an issue that arose because the indictment specified the clitoris of C1 and C2 as the subject of the mutilation giving rise to the offence or the offences.
The medical evidence at trial was to the effect that the clitoris is a global term – or “clitoris” is a global term which includes the clitoral hood and that the clitoral hood is part of the clitoral anatomy, even though it is in fact different tissue, and this aspect was accepted by the Court of Criminal Appeal as being the thrust of Dr Marks’ evidence. I will just give your Honours the references without taking your Honours to it ‑ at appeal book 494 to 495 at paragraph 525 ‑ and their Honours indicate that Professor Jenkins’ evidence would not detract from that. Dr Marks’ evidence was that the clitoral anatomy includes both the clitoral head and the clitoral hood:
“because they are closely physically related to each other.
That is at paragraph 209 at appeal book 404. Professor Grover considered the term “clitoris” to be a global term that included:
the clitoral ridge; the clitoral hood –
being relevant here:
the shaft of the clitoris; the clitoral glans ‑
Professor Grover - the reference is at paragraph 240 at appeal book 412. Professor Jenkins’ evidence was to the effect - or he gave evidence that the clitoral head and the clitoral hood were separate structures, but the Court of Criminal Appeal commented - and we would respectfully adopt that comment - that such a proposition did not preclude the two structures from being encompassed within the word “clitoris”, and that is at paragraph 525.
We would also note that the Family Law Council in its report – I will not take your Honours to the page but I will just give your Honours the reference – the Family Law Council report in the joint bundle of authorities at page 646, paragraph 2.04, describes acts of excision in relation to the clitoral hood as being “clitoral circumcision”. Standing back from the evidence, there can be no doubt that the clitoral hood exists at the fusion of the labia minora and the clitoral glans and the two unite over the glans to create a hood. So mutilation of the clitoral hood clearly falls within the scope of the offence and we say that, putting to one side the pleading point, there is no imperative to construe the word “clitoris” narrowly or strictly so as to avoid broadening offence provision.
There is no doubt, we would submit, that the clitoral hood is covered by the offence provision and we submit that, taking into account the medical evidence – and we have detailed that in the written submissions – that the Court of Criminal Appeal erred in finding that that trial judge was wrong to conclude that the clitoris should be understood in its global sense to include the clitoral hood.
Your Honours, we deal in the written submissions also on questions relating to a retrial. If it is content for the Court, I can deal with those in reply and to the extent that they need to be raised unless your Honours have particular aspects that I should deal with now.
KIEFEL CJ: Why would you want to deal with them in reply? You have to justify the orders that you seek.
MR KELL: Certainly. So we say that the appeal should be allowed, that the orders made by the Court entering verdicts of an acquittal should be set aside. The question then arises, if we succeed, as to whether this Court would make an order for a retrial. We say that there is evidence to support the charges of the complaints in respect of both C1 and C2, that there is evidence of cutting, and we set that out in our written submissions. We also so in respect of discretionary factors arising that these are serious charges and that there is a strong public importance in the offences being duly prosecuted and this is on the assumption that we succeed in the appeal being allowed.
EDELMAN J: Do you accept that the effect of a retrial upon C1 and C2 is a relevant factor to consider?
MR KELL: Yes, we accept that that is a factor to take into account. We note - and we have referred to this in the written submissions - that when his Honour Justice Johnson had regard to a ruling about the giving of evidence, that it was noted that the children would be giving evidence on a discrete point, and partly by reference to recorded interviews and the like, so the extent of the harm to the ‑ ‑ ‑
EDELMAN J: Against their mother.
MR KELL: Against their mother. The extent of the harm was clearly a factor to have regard to, but was not outweighed by other considerations. We say similarly here that there is a profound public interest, assuming we are right on construction, in a conviction being recorded for offences such as these involving the deliberate cutting of genitals of prepubescent children, and of course the order for a retrial is permissible. Whether evidentiary or other considerations, discretionary factors come into play, at least in part is a matter for the Director in terms of the bringing of a new trial. But we say that there are profound discretionary considerations that justify the order of a new trial here.
BELL J: Do I take it that you accept that on a new trial, it would not be open to frame an indictment containing the alternative counts which were the subject of the orders of acquittal entered by the Court of Criminal Appeal that are not challenged by your appeal?
MR KELL: Yes, I think that must be right, yes.
BELL J: And is the rationale to explain what might otherwise appear inconsistent in that result, that an assault occasioning actual bodily harm requires an injury that is more than merely transient or trifling and, on your submission, the injury, in the case of a 45(1) offence, can be a transient or trifling injury? Is that the reason that one can see the appropriateness in terms of consistency of an order for a new trial on the principal count, recognising that it is not open to direct a new trial in relation to the alternative, lesser count?
MR KELL: Yes, at page 687 of the appeal book were the orders. So the verdict of acquittal was entered in respect of all counts, which includes
obviously the assault occasioning actual bodily harm, and we seek that order being set aside.
If our construction is right on section 45, in the manner in which the case was advanced – well, we certainly principally would seek a new trial for the purpose of the section 45 offences. Whether that extends to the alternative counts – and the reason we are hesitating is not because of the point that your Honour raised, because if we are right about construction then the question of damage, we say, will be satisfied here. But I have in mind the exchange between your Honour and I about if the jury were to find that the place of damage was not the clitoris but some other part of the female genitals. I just want to be careful about not making a statement there. So it might be that your Honours just would order a new trial on the counts.
BELL J: On all counts?
MR KELL: On all counts.
BELL J: But what part of your notice of appeal challenges the acquittals on the assault occasioning counts?
MR KELL: I think that the notice of appeal is more general. So it is to set aside order 3, and then in its place order that a new trial be had. Order 3 is the verdict of acquittal. Could I just ‑ ‑ ‑
BELL J: But how do we get there from the grounds of your appeal to setting aside the orders of acquittal in relation to the assault occasioning counts, particularly given the argument that you have addressed today, which does embrace that a lesser level of injury might support a conviction for the principal offence than under the alternative offence?
MR KELL: Yes, I hear your Honour. Could I just clarify the position over lunch, your Honour? I just want to confirm my instructions on that.
KIEFEL CJ: Perhaps you could deal with that in reply, and you might consider how this was dealt with in the court below.
MR KELL: Yes, I will. I will deal with it quickly. I just do not want to take up further time on it at the moment.
KIEFEL CJ: Yes. Thank you, Mr Kell. Mr Game, are you arguing first?
MR GAME: I will come to the second reading speech in due course, but it might be noted that this legislation actually comes from UK legislation passed in 1983 or 1984.
NETTLE J: In 1985.
MR GAME: In 1985, I am sorry, your Honour. I will come to that in due course. The second reading speech is explicit about that and that is quite an important aspect of this.
But where I wanted to start, if I can take your Honours to our outline, and I am starting at paragraph 3 - so the question in this case is not about how high one can pitch the idea of “mutilate”; the question is how low one can pitch it. It is not correct to say that this case was not conducted on a de minimis basis.
Significantly, if your Honours have the document that is the written directions, which is in the book of further materials at page 9 one sees in paragraph 3:
The word “mutilate” . . . means to injure to any extent.
Now, that is important, and it informs the nick or cut because it is not a cut with any bleeding or any lasting effect and a nick is less than a cut, and I will take you to what the evidence was in a moment. So the actual question becomes whether or not the words “otherwise mutilate” mean “otherwise injure to any extent” and we say that textually is not available.
Now, I will just say a little bit more about the de minimis – sorry, just looking at these written directions, it is important also to note that at paragraph 15 ‑ and this is duplicated for the other defendants, accused ‑ we see, yes, they have all been acquitted of the alternative counts, and those acquittals are important, if one got to the question of retrial or not because the court ‑ it is provisional to a degree, but the unsatisfactory nature of the evidence to get to actual bodily harm features very high in the court’s decision not to order a retrial. That is to say, there was not a case, and I will take you to some paragraphs in a moment. But in respect of the idea of injure to – so we see in 15:
merely transient or trifling.
There was no evidence in this case of anything that could possibly be described as more than transient. In terms of the evidence, I will just take your Honours to two passages in the Court of Criminal Appeal’s judgment. First to page 404, paragraph 210. So it says:
Dr Marks’ evidence was that any cut or nick . . . would cause injury to and loss of skin cells at the site of the cut. (The appellants point out that in Dr Marks’ evidence she noted that loss of skin cells could result from scratching one’s arm –
Now, the Court ultimately, at paragraph 498, because of the approach they took to injury having to be more serious than trivial, did not need to deal with this, but at paragraph 498 they said why they did not need to deal with what flowed from that submission, so the aspect of it that refers to shedding of skin cells. If one looks at a couple of passages in evidence, paragraph 31 of the Court of Criminal Appeal’s judgment – sorry, paragraph 31 first.
GORDON J: Sorry, where are we, Mr Game? I am just lost.
MR GAME: I am lost too, your Honour. I am lost, I am sorry. Paragraph 31 of the Court of Criminal Appeal’s judgment, which is at page 359 – I apologise:
C1 said . . . she was scared of going into the shower because she thought it would hurt her but “then I found out it didn’t hurt at all” –
So that is C1. And then C2 there is a short passage at paragraph 42, she said it hurt in her bottom. Then in the Court of Criminal Appeal’s judgment at paragraph 625, one sees bringing together what flows – this is all in the context about whether to order a retrial on assault occasioning but because of the common nature of the – sorry, and extended to the prospect that assault occasioning could be to the parts of the genitalia that were described in the principal count, that is to say, not the way it was run at trial, but generally. So at 625, that is dealing with C1:
no lasting pain, no blood, nor any other evidence of injury.
Then at 628, it ends up:
without any other evidence as to the procedure performed on her, could support an allegation of actual bodily harm ‑
So yes, this case is de minimis in respect of the ‑ ‑ ‑
GORDON J: Sorry, I am a bit lost. That was C2, was it?
MR GAME: That is C2, yes.
GORDON J: Difference in relation to C1.
MR GAME: C2 is a little different but the evidence was stronger in C1 than in C2. The evidence is, in our submission, de minimis that a nick could be a very very minor thing ‑ ‑ ‑
EDELMAN J: Mr Game, might it depend on what is meant by “de minimis”? If by “de minimis” it is meant a shedding of skin cells, then that was not part of the case, but if by “de minimis” it is meant some nick or cut, then that would be part of the case.
MR GAME: Yes, a nick that does not draw blood, a nick that has no lasting pain, a nick that is ‑ ‑ ‑
EDELMAN J: But necessarily is more than the mere shedding of skin cells.
MR GAME: Yes, your Honour, but still it is a nick, that is just a nick, because there is no blood, no lasting pain, and there is no evidence of that. So it could be a nick like I have just done to my hand.
NETTLE J: A nick exposes blood necessarily, does it not?
MR GAME: No, there is no evidence of blood in this case.
NETTLE J: I understand there is no evidence of bleeding out but a nick is, by definition, something which exposes blood to some extent, albeit minimal surely.
MR GAME: Not necessarily, and it was not put on the basis in this case that there had to be any blood. That was not embraced.
EDELMAN J: Then it is a shedding of skin cells.
NETTLE J: It has not broken the skin, it is not a nick.
MR GAME: A nick is something less than a cut. A nick is a scratch that removes skin cells.
NETTLE J: It is a small cut. It is what you do shaving. It is a small cut.
MR GAME: Yes, but it may not bleed. There is no evidence in this case of any bleeding – in either case.
NETTLE J: All there is ‑ there is no evidence that there was not sufficient blood for it to be seen at the time.
MR GAME: Your Honour, I would put that the other way, which is there is no evidence in this case of any bleeding. There is no evidence. One cannot positively assert that there was bleeding in this case.
NETTLE J: Yes, I follow.
MR GAME: One can assert that there was something that caused pain for a period of time; that is it. Part of the problem is it was posited on the basis of Dr X’s evidence about what the practice was and that evidence was rejected, so that the evidence about something occurring in respect of the prepuce by Dr X went out of the trial, on the appeal. So one was not left with a solid basis to say that there was a cut of the kind that was described ‑ ‑ ‑
GORDON J: It was described by C1.
MR GAME: It was described by C1, but C1 said she thought there was a cut, but that was left up in the air. She did not actually conclude – you could not conclude that there was a cut to C1 and that is what the Court of Criminal Appeal held.
KIEFEL CJ: There was evidence that forceps were used.
MR GAME: There was evidence that something like forceps was used, yes, and there could have been a pinching ‑ ‑ ‑
KIEFEL CJ: Did your client accept that?
MR GAME: I beg your pardon?
KIEFEL CJ: Did your client admit that?
MR GAME: Yes, that is what she said.
KIEFEL CJ: So to take up a matter that Justice Gordon raised earlier, that we could be in the area of contusions or bruising, you say that was not part of the Crown case.
MR GAME: It could be in the area of bruises but there is no evidence of a bruise in this case.
KIEFEL CJ: Except what one would infer from the use of forceps on the skin.
MR GAME: You could, but ‑ yes, but my point is a little bit different, which is that if you talk about a nick or a cut, that nick is a very, very minor thing because that nick is informed by the words “to any extent”. So it is a mistake, and it is a big mistake, to talk about this case as if it involves cutting. It does not.
GORDON J: Why is that, Mr Game?
MR GAME: Because ultimately it was put on a lesser basis than that.
GORDON J: What lesser basis? It was put on the basis that it was a nick or a cut.
MR GAME: Yes, but, your Honour, one has to go to the lowest thing to see if it is sustainable, not some higher ‑ ‑ ‑
EDELMAN J: That is not quite what the Court of Appeal found. The Court of Appeal said at 498:
There was debate in the course or oral argument as to the proposition that something more must be required than just the “shedding” of skin cells, which can occur without any form of cutting –
Then they say:
It is not necessary to decide that issue –
Presumably, it is not necessary to decide that issue because they think that a nick includes a cut or a cut includes a nick.
MR GAME: They thought it was not necessary to decide the issue in this case because they had come to a different conclusion about the correctness of the directions.
EDELMAN J: They say:
in circumstances where what occurred, on the Crown case, was the nicking or cutting of the clitoris.
That is why it is not necessary to determine whether something that can occur without any form of cutting might fall within the definition.
MR GAME: Your Honour, it is ultimately put to one side because of the way in which they dealt with the appeal. But here, as I said before, one cannot save the thing by referring to “cutting”. One cannot save the thing by reference to “cutting” having some imagined outcome because it is all informed by the words that are driving the thing, which is “to any extent” and that is unmistakably de minimis and that is how it was put.
KIEFEL CJ: Well, putting aside questions of retrial, if one is focusing just on the construction of the statute, are you saying that, even if one construes “mutilates” as “injure” you cannot add to it “injury to any extent”?
MR GAME: I do say that, your Honour, yes. I also say that if one examines the text of the provision carefully the idea that the words “otherwise mutilates” can mean “injure to any extent” is not reasonably open and that comes from a textual analysis.
I will take you to the second reading speech in due course, but we say the second reading speech needs to be read in a different way than it has been put. There are statutes around Australia that prohibit female genital mutilation. They include the words “female genital mutilation” and they define the conduct and they define the conduct by reference to some of the things that this case concerns and by reference to others more expansively. There is legislation all around Australia that now deals with this in terms of the language of female genital mutilation but not this legislation.
EDELMAN J: Some of the legislation defines “female genital mutilation” as including “mutilation”.
MR GAME: That is true. I think that is the Northern Territory legislation. The most exhaustive, I think, is the ACT legislation. Anyway, what I am saying is it varies so it is quite a simple matter to actually define “genital mutilation”. “Genital mutilation” is not defined in this and it does not appear in it and it is not part of the Act and it is not permissible to refer to it as part of the Act.
If one looks at this offence, one starts with the proposition that this is a crime, and it is a crime in which ordinary principles of statutory construction would say that recklessness was a sufficient mental state. So that means if you do a thing that excises or infibulates or otherwise mutilates, even though the thing you do is done with a lesser intention, you may excise, infibulate or otherwise mutilate, even though it was not your intention if you were reckless about it. That is because offences relating to actual bodily harm and the like in the context, the only exception really is when one gets to offences like murder.
Recklessness is treated as a mental state of crimes that do not have an identified mental state in this field. In terms of the argument that has been put, that one did something, one set out to do A but actually the knife slipped or something and one got B, that does not work because “recklessness” would pick that situation up.
The words “excises” and “infibulates” are strong words. “Excise” is removal of the clitoris, essentially. “Infibulate” is to remove everything. So they are radically strong terms. If one went from them to “otherwise mutilates”, that is to say they are mutilations, and we are now talking about other forms of mutilations. It does not matter about ejusdem generis, it is just textual, that we are talking about three very strong words. One has to then look at other mutilations. There was no textual analysis by the trial judge and there has been no textual analysis, in our submission, by the Crown.
Now, if one comes to the words ‑ if one reads into the “injures to any extent”, maybe there is room for – it is definitely a fall‑back position but the words “injures to any extent” then why would one say “whole or any part”? Because if you injure to any extent, it is completely unnecessary to talk about “whole or any part” because one is all of it, and the part of it is any part of it. That, in our submission, is a nonsense.
Now, then the labia majora or labia minora and the clitoris do not make up all of the structures of the female genitalia and there was an argument in this case about the prepuce and whether that was to be included. So we have identified aspects of the female genitalia that are specified.
Why would you do that, if you were talking about an umbrella term, “female genital mutilation”? In our submission, it does not make sense to do so. You would say “So injures, or injures to any extent”, so why would you say “whole or any part”? Why would you say “labia major” or “labia minora” or “clitoris”? There is no explanation for that.
What it means is this: the legislature has decided to prohibit identified conduct, and that is a standard method of the creation of crimes. It has not set out to create an umbrella term. If you look at the other legislation that is created about female genital mutilation, it goes on to define what you mean by female genital mutilation.
If in this you pick up all categories of female genital mutilation, the umbrella term, then you have to go somewhere else to construe what this statute means and that is antithetical to our ideas about the construction of statutes. One needs to be able to look at a statute and see what it means, not to go to extensive secondary sources to work that out. Nowhere do the words “injury”, “damage”, “any injury” – none of those words appear. Then there is a reference in the aiding and abetting offence to those acts and those acts we see in subsection (2):
if the person mutilated –
So it is a moving thing; it is something that involves identified conduct which is the conduct that brings about “excision, infibulation or otherwise mutilate”. So the words ‑ the acts themselves have meaning in this context as well, as does the appearance of the word “if the person mutilated”.
Now, subsection (3) talks about surgical operation. Now, surgical operation, it is difficult to see why surgical operation would be necessary if one was talking about female genital mutilation, which is mutilation for non‑medical purposes because it is a practice. That is to say, surgical operation has to be brought in in this context and it comes also directly from the UK provision of 1985. It has to be brought in because otherwise the physical acts identified in (1)(a) could amount to – a surgical operation could satisfy the descriptions of the acts prohibited in subsection(1)(a).
KIEFEL CJ: I am sorry, I do not quite follow that, Mr Game. The medical procedures referred to in subsection (3) one could accept would take account of procedures which would mitigate the effects of the practices referred to in subsection (1), in particular, infibulation. What is the point you are making?
MR GAME: So, the point is that the physical act which is the surgical operation could satisfy the provisions of (1)(a), but if one defined this thing just in terms of the umbrella idea of “female genital mutilation”, female genital mutilation is conduct done for other than surgical purposes.
KIEFEL CJ: That is creating an exception – subsection (3) is creating the exception, is it not, on that view?
MR GAME: Yes, but only by reference to the specified conduct in (1)(a).
BELL J: Your point is ‑ ‑ ‑
EDELMAN J: The subsection ‑ ‑ ‑
MR GAME: What I am saying is not pointless, in my submission.
BELL J: Your point is that the offence created in subsection (1)(a) is not created by reference to the concept of a practice ‑ ‑ ‑
MR GAME: That is right.
BELL J: ‑ ‑ ‑ of female genital mutilation.
MR GAME: Yes, yes.
BELL J: If it were possible to define an offence in that way, it would necessarily be an offence done for non‑medical purposes ‑ ‑ ‑
MR GAME: That is exactly right.
BELL J: ‑ ‑ ‑ and one would not need the statutory exception.
MR GAME: Exactly.
EDELMAN J: Except, one might read subsection (3) as not being an exception but a clarification that commences with the words “It is not an offence”.
MR GAME: True, but it is identifying – it is all about physical – the doing of physical acts. Then if one goes on, one sees:
It is not a defence to a charge . . . that the person –
Again, the word “mutilated” appears:
consented –
So, what one would have here is no age restriction, no defence of consent, so that any conduct on any female person that involved any injury to any extent, whether consensual or not, other than the exception in subsection (3) would be an offence of female genital mutilation. That is the construction that is being put by the Crown and it does not make sense.
The word “mutilate” has to be given – the words “otherwise mutilate” – they have to be given the sense that they carry. They cannot be extended to any de minimis circumstance that fits within any description in other material about the extent which the umbrella term, “female genital mutilation” might catch. If that were the case, as I have just said, you will create an offence on any woman, any age, consent or otherwise, involving any injury to any extent and that is a crime now carrying 25 years’ imprisonment.
So, that is what we say in the paragraphs that appear from paragraphs 4 through to 10. We make the point about context in paragraphs 11 and 12. That is a small point but it is in a particular part of the legislation and that is a relevant matter.
I would like to then go – in paragraph 15 – I am moving on a bit – but in paragraph 15, we deal with the extrinsic material. Most of it, we submit – sorry – most of it was put aside, and correctly so, by the Court of Criminal Appeal. That included the material which is set out in paragraph 15, particularly extending to dictionary definitions of “female genital mutilation” which is not the term in the community education material, the Attorney‑General’s Department and the subsequent amending legislation, all of which were given weight. So then one comes to the second reading speech which I will take your Honours to now.
KIEFEL CJ: Would that be a convenient time to break?
MR GAME: Yes, certainly, your Honour.
KIEFEL CJ: The Court will adjourn until 2.15 pm.
AT 12:45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KIEFEL CJ: Yes, Mr Game.
MR GAME: If the Court pleases. I am about to come to the second reading speech and what I have to say about it but, by way of a preliminary observation, the question of how the appellant relies on the extraneous material was raised in argument this morning.
We say in our argument that not only does the appellant, to get from “otherwise mutilates” to “otherwise injures to any extent”, have to take you out of the statute and its text in the immediate context but to the second reading speech, and then out of the second reading speech, because they say it is wrong, to the Family Law Council report, and I will say something more about that.
Then they say, effectively, that for one to not only understand the provision but to construe it one has to refer to that material. We say that that is impermissible but it does not stand in the way in which these words “ordinary” and “mutilate” actually read. We say that one can refer to the extraneous material but it does no more than confirm that the ordinary meaning is to be given to those words, and they are strong words.
I wanted to take your Honours to the second reading speech, which is at page 762. There is the explanatory memorandum, which you have been referred to, but that does not take the matter a great deal further. But if you go to page 762, what is being referred to at line 30 on 762 are ‑ when it says, “The practice involves”, so it talks about FGM, it talks about a number of practices. Then it says:
The practice involves the excision or removal of parts or all of the external female genitalia.
Then at the bottom of the page there is a reference to the Family Law Council, about which I will say more in a moment. At the second paragraph on that page they talk about the “most severe form” and so forth, but when one comes to that which is being spoken about on 763, “the practice” on about line 3 and line 8, that is the practice that they have been referring to back at line 30 on page 762. So that when one comes to the critical bit at:
I turn to the provisions of the bill . . . The three forms of FGM in order of severity are –
And then:
The bill seeks to prohibits all of these various methods –
That is not a mistake. There is no reference at all anywhere here to – nowhere to ritualised circumcision. What is being referred to throughout is the practice in the invasive, destructive sense that the second reading speech began with.
KIEFEL CJ: Would “infibulation” fall within “excision” or “removal”?
MR GAME: Yes, your Honour. “Infibulation” is the most severe form. It is removal of ‑ ‑ ‑
KIEFEL CJ: It involves more.
MR GAME: It involves more, yes. It involves removal and then potentially sewing up. The critical thing here is that (a) nowhere is it said that they were adopting the Family Law Council recommendations; (b) there is no mention at all here of ritualised circumcision; and, (c) when we get to the forms, we are talking about the invasive things – I say “the invasive things” – the terribly invasive things that we saw in the Family Law Council report. Then it says:
The bill seeks to prohibit all of these various methods of FGM.
When you get to line 24, it says:
The bill follows legislation in place in the United Kingdom and the United States –
What we see at line 20 we say is not an anomaly. What we see then at line 25 is “The bill follows legislation in place”. If one then goes back to an annexure to the Family Law Council report, page 710, there we have the UK legislation.
EDELMAN J: Do we have the US legislation?
MR GAME: I do not have the US, your Honour. I have not looked at either, I apologise. I might add that the UK second reading speech is not exactly a scintillating read but the point of it is, though, that they have taken their lead from the UK legislation and they have picked up the ideas pretty much holus bolus – “excise, infibulate or otherwise mutilate” and there is the exception for medical purposes.
So it would be a mistake to think that from this, this discloses an intention to pick up what were described as all of the forms of female genital mutilation under the umbrella idea of female genital mutilation, and then transpose that into the definition of “mutilate” in the provision. We say this second reading speech, insofar as it throws light on it, very much points away from the position put by the appellant. Just a couple of other points about the report. It says at the bottom of page 762 – they talk about “released a detailed report”.
GORDON J: Sorry, where are we now, Mr Game?
MR GAME: Page 762, about line 45, your Honour. So what we say about that is this, that probably the best understanding one can have is that they probably had an advance copy of the report. The other thing is a discussion paper. The discussion paper and the report, as we have seen, are not entirely the same. We saw in the discussion paper ‑ ‑ ‑
KIEFEL CJ: The final report of the Family Law Council is only a month later, so it is quite possible that they had an advance copy.
MR GAME: Yes, that is the most likely, so that one would look to the final report. But the thing is that some of the things have dropped out of the discussion paper, so that what one sees at 613, paragraph 522, that does not appear to be in the final report. What appears at 591 in 2.01, that does not appear to appear in the final report either.
So what one does have is that we have seen the recommendation that all forms be made unlawful. That is at page 793, but when we go back to 746 and 747, we see what patently are four different things, ritualised and so forth, excision, infibulation.
Now, it is tolerably clear, in our submission, that when you read that with the second reading speech they are not picking up ritualised circumcision and that is the only fair way, in our submission, that you would read all of this material.
KIEFEL CJ: You can read it in a couple of ways really, can you not?
MR GAME: You can.
KIEFEL CJ: You could say that the reference at 763, line 21, is to the three most serious forms of FGM. You would assume that when they have read the Family Law Council report, they understand that there are actually four.
MR GAME: Yes, your Honour, exactly. They may be saying the three forms that we want to prohibit.
KIEFEL CJ: Or no, the three most severe.
MR GAME: That is true.
KIEFEL CJ: That more accords with their language.
MR GAME: Your Honour, in our submission, it is not going to get one to the point that one can swing in ritualised circumcision into the statutory provision because there is no indication that that was the intention to do so.
KIEFEL CJ: The difficulty, though, Mr Game, is having read the Family Law Council report, it was obviously influential. It is very recent. They are saying it is accepted that it should criminalise what is a form of child abuse. Why would they leave out an area – it is called ritualisation, but in part can be physically damaging. Why would we assume that the legislative intention would be to put that to one side when there is nothing in the language of the second reading speech which suggests that up to a point it is an acceptable practice?
MR GAME: Your Honour, it is not to say that it is an acceptable practice but if one goes back to 763, line 4 – sorry, the other thing is it has not been left out completely if other mutilations somehow are caught. So it is a question of construing other mutilations, not construing what sits inside ritualised circumcision in the report.
GORDON J: That is why I wonder why you are focused on that contention. It is not that the question is what “otherwise mutilates” picks up and it may very well pick up, given its context, some things which some people may view as ritualised circumcision, others may not.
The whole reason for not adopting the category is because of the debate and confusion, sometimes debate within the community about what falls within each of the categories. So the language is “otherwise mutilates” and one has to work out whether or not a cut of a prepubescent’s clitoris is within “otherwise mutilates”, regardless of whether it is sunna or in what you have described as ritualised circumcision.
MR GAME: I accept that, your Honour, but what I am saying is that if you construe the statute as it stands, you are construing the words “otherwise mutilates” without trying to swing in these categories and that when one does that, “otherwise mutilates” in context ‑ ‑ ‑
GORDON J: I think that was my point, Mr Game.
MR GAME: Yes, I accept that, your Honour – sorry. What I am saying is that the text, by its very nature, contemplates – the very idea of mutilate is an injury or an insult of some significance and we do not accept ‑ ‑ ‑
GORDON J: The question is whether or not a cut to a clitoris for a prepubescent child which is the size of a lentil is something which falls within that category.
MR GAME: Your Honour, that case fell away. That case fell away because Dr X’s evidence fell away. That case did not survive because Dr X ‑ ‑ ‑
GORDON J: That was a case left to the jury.
MR GAME: Sorry, on appeal, that case fell away, but there is by no means any satisfaction that the jury were satisfied about that because that witness was giving evidence about something that happened 30 or 40 years ago in India.
GORDON J: We have two questions here. One is construction of the statute, which is what I thought we were directed at at the moment, and we were trying to work out what “otherwise mutilates” means, and the second is its application to the facts.
MR GAME: Yes, your Honour, but I do not accept that it is just a question of asking whether or not a cut satisfies the description of “mutilate”, and in some circumstances a cut might. The reason for that is that what has been said about the meaning of the word “mutilate” is that it does catch events that are de minimis, and that is because of the idea of injury to any extent. What else could it – and potentially things that are transient that do not cause pain even a little while later.
What is put is that, by going to this material, you will get to ritualised circumcision ‑ because you will get to ritualised circumcision, any insult of any kind, however small, will satisfy the question. The point I am making is that it is our opponents that have to get to this material. We do not have to get to this material at all. In fact we say that all the material shows up is a confirmation that one has to determine what the ordinary meaning of “mutilates” means and that it has a connotation of an impact of some significance.
KIEFEL CJ: You might be right that on either view you may not get to the second reading speech, but on either view you do get to the Family Law Council report, I would have thought.
MR GAME: You can get to the Family Law Council but there is very limited that you can draw from it for the reasons that I have given in terms of what is said about it.
KIEFEL CJ: Except that the terminology chosen by the statute is to pick up terminology of the report. It is not “female circumcision” as in the British statute in 1985; it is “female genital mutilation”, which has, and had in the 1990s, a received meaning which was reflected in the Family Law Council report, which gives a different view to what “mutilation” means, not the least because, as I think is referred to in the Family Law Council report, the term “mutilation” was chosen by those who are the protagonists of making it a criminal offence and to try to overcome these practices. They chose a word which was condemnatory.
MR GAME: Quite, your Honour, but they chose a word in the context of three words: “excises, infibulates or otherwise mutilates”. That word “mutilates” does not sit there in the umbrella of the words “female genital mutilation”, which has taken on a meaning of its own. But one does not get the meaning of the word “mutilates” by going to a statutory definition of female genital mutilation.
EDELMAN J: One also does not get the meaning of the word “mutilate” from some so‑called ordinary meaning that is divorced from “female genital mutilation”. The whole context is female genital mutilation.
MR GAME: Yes, but it is being used in a different way here, which is that what is being done is driving into the word “mutilate” all of the different things that have been used to describe the practice of female genital mutilation, and that is a completely different thing than just construing the word “mutilate” against a background that this is an offence dealing with female genital mutilation. The reason for that is this. We had this offence of prohibiting female genital mutilation and then we go on to describe what is the conduct with the result.
One does not build that up by going back elsewhere to ask about the reason just why the thing is being prohibited because now you are being told what the conduct is that is prohibited. You have been told that, as I went through before lunch, with a good deal of specificity about each aspect of it, whole or part, the particular circumstances relating to it and so forth. So that you have to look at that body of words together, your Honour.
EDELMAN J: If that submission is right, and if you are right, and I understand that sometimes a cut might fall within and sometimes it might not, does that mean that it would be necessary on an application of the provision to adopt a wait and see approach? If not, how else would one tell?
MR GAME: You could do. You might have to. You might have to say, “On that account, such and such could amount,” so you may have to give the jury some specific directions about ‑ but that is at the margins, which are not the margins that we are talking about in this case. They are not the de minimis margins, they are the margins about whether or not ‑ ‑ ‑
EDELMAN J: I am just asking about the construction point.
MR GAME: Yes. You may, in a particular case, have to wait and see, yes.
NETTLE J: Before you could charge?
MR GAME: Sorry, I thought you meant wait and see how the evidence flowed out. Do you mean you wait and see in terms of what happened with the injury?
EDELMAN J: Wait, because you may not know at the outset whether the cut is going to be one that causes permanent injury.
NETTLE J: Whether it is permanent.
MR GAME: You may not know, yes, your Honour. So you may not know. I was thinking of something else, your Honour, which is this – it is not a settled thing in jury directions. For example, in Peters, two of the dissenting judges said you might direct the jury that on that account, that amounts to dishonesty, and others did not accept that.
In a particular case, you might say to a jury, “On that account, if there were X, Y and Z, then I direct you that that could amount to mutilation,” so that there is no reason why that sort of direction could not be given. I thought you meant wait and see, sorry, but I accept the first – now understanding what your Honour has said, I accept that may be the case in a particular instance.
I also say that the margins of what amount to mutilate in extremis are not really what this case is about. This is about the margins in minimis, about what this offence is about. So that there is a passage, and I will come to this in due course, but we do say that the Court of Criminal Appeal fully considered both the meaning of the words in context, they did not give them excessive ‑ the dictionary or anything excessive weight.
They did understand context, and they were conducting an orderly exercise, having regard to purpose, when they come to their conclusion about what the ordinary words mean. So that there is nothing, we say, in the Court of Criminal Appeal’s reasons that is capable of criticism but there is one very small proviso, which is this. I will go back in a minute, but at paragraph 521, page 493, we say that that passage is no more than an orderly application of section 34(1)(a), having considered purpose, but it does not mean something different.
They have had full regard to the extrinsic material and if you go back to paragraphs 512 to 514, one can see how they have done it. The critical thing from our perspective is 515, that:
some form of more serious injury than, say a superficial shedding of the skin cells or a nick or cut that leaves no visible scarring and cannot be seen on medical examination –
that is correct, in our submission. One does not have to come – another way of saying what I was saying, you do not have to come to a definitive, ultimate definition of “mutilate” because it applies to different circumstances, but it must be something of some significance in terms of an injury.
BELL J: So, in terms of supporting the judgment below, rather than paragraph 521, you point to 522, the acceptance that a nick or a cut in a particular case may amount to mutilation and the error being, as you have put it, a direction that invited the jury to consider that a de minimis injury could support the conviction?
MR GAME: Yes, and we say it is a mistake to shift all of this case to focus on the word “cut”. You have to actually look at that bundle of words. If one goes back a little, the actual consideration of the words ‑ in our submission, we see at paragraph 484 the words in dictionary context and so forth. That is orderly statutory construction. It is giving dictionaries no more than their proper weight. Then when one gets to 494 at page 485, that is correct. In our submission, one does not get to the meaning of the word “mutilate” by ‑ particularly since those definitions of “female genital mutilation” mostly came after this statute and offences.
GORDON J: Can I just ask in that context about 492?
MR GAME: Certainly, your Honour.
GORDON J: The way you have just put it, for my part there are a number of passages through this Court of Appeal’s decision which, on their face, seem in some respects to be inconsistent. Is it the way you have just put it consistent with what is put out at 492?
MR GAME: Yes, but you would have to ask yourself – this would not be dressed with any injury to any extent. It would be a significant injury and a cut to the clitoris might in particular circumstances, depending on its depth and scarring and so forth or whether or not there was any impact on nerves, that might well amount to a sufficiently serious injury, to answer the description of “mutilate”.
GORDON J: Well, it is not put under serious injury. The way they put it is – as they read it, it says “any cut”, because a cut is nerve damage.
MR GAME: I am sorry, your Honour, you will probably be annoyed by me being distracting, but it ultimately ended up not being the clitoris, but the prepuce, which is a different piece of ‑ ‑ ‑
GORDON J: I am trying to deal with the question of construction.
MR GAME: That is true, but what they are saying here does not undermine what they are saying because the injury is to a different part. Yes, there is some tension but, your Honour, again one cannot just take that word “cut” and then build the argument around that.
GORDON J: I am doing the opposite; I am trying to take the passage and put it into context in relation to the other paragraphs. I am trying to work out on your view what is, as you would put it, the minimum, what is the thing that otherwise mutilates.
MR GAME: Your Honour, I think one would have to go to 493 and say what is being said is that there may be a circumstance in which nicking or cutting itself amounts to an act of destruction. So it does say “any” but, when you read that with 493, they are really saying something of some significance.
In addition, your Honour, when one reads what is said later at 515 and 522, there is a flow of logical meaning to it, in our submission. The passage I wanted to take your Honours to is at 514. Sorry, at 513 there is an important point there in our submission which is we say this case is a case like Milne or a case like Grajewski where one is looking elsewhere not to determine the scope of a provision but to extend it.
That is an extension of jurisdiction in the sense of Kirk and we say that one should be quite vigilant to not engage in an exercise which extends crimes beyond their effective and natural meaning. Now, 514 is a significant passage because what is being criticised there is using the idea of female genital mutilation to supplant the idea of the word “mutilate” which leads to the conclusion at that top of 492. That is what I wanted to say about that.
There was one remaining point about the – there was an answer that I was giving to your Honour Justice Kiefel about a question about the second reading speech that I wanted to come back to.
GAGELER J: I want to ask you a question about that as well, Mr Game.
MR GAME: Certainly, your Honour.
GAGELER J: You do your bit and then I will ask my question.
MR GAME: I will just say this. Your Honour the Chief Justice asked me about particular things that might not fall within the description of “mutilate” and whether that created a difficulty for my argument. On page 763 – and we do say this is a significant point – on line 4, it is said that:
FGM could constitute an offence against the general assault and wounding provisions of the Crimes Act.
The point about it is that things that are at the margin can be dealt with under other penal provisions and it is not an insignificant observation in the second reading speech. That is all I wanted to say about that.
GAGELER J: I have two questions. One arises from page 762 and it is really the question I asked Mr Kell.
MR GAME: Yes.
GAGELER J: The second paragraph of the second reading speech contains the sentence:
The practice has been condemned at an international level. The World Health Organisation has recommended that governments adopt clear national policies to abolish the practice.
Now, as at 4 May 1994, what is it that the World Health Organisation had recommended?
MR GAME: I do not know the answer to that question, I apologise. If Mr Kell does not have an answer, we could send a note and we can ascertain that material.
GAGELER J: The second question relates to the second paragraph at page 763, the reference again to the United Kingdom Act. I think you intimated that there is nothing in the second reading speech for the United Kingdom Act that sheds any light on it. Is there anything ‑ ‑ ‑
MR GAME: It is worth reading but it is – we actually have copies of it – we have one, sorry. I cannot give you the ‑ ‑ ‑
GAGELER J: Mr Game, my question is: is there anything in the context of the identically worded United Kingdom statute that might shed light on the meaning of the words or how the words are to be read? Secondly, is there any commentary on the United Kingdom provision that we should be aware of?
MR GAME: I am not certain about commentary but there is a judgment that is referred to in Justice Johnson’s judgment.
KIEFEL CJ: Is this the judgment of the Family Law Division?
MR GAME: Yes, your Honour.
KIEFEL CJ: It is not heavily reasoned.
MR GAME: That is correct, your Honour. There is the judgment referred to at page 54 of the first appeal book. It is a decision of Sir James Munby. The legislation is a later piece of legislation, 2003, but the critical words you will see at page 57 are close to identical.
KIEFEL CJ: Could I interrupt you just for a point of clarification, Mr Game. The 1985 UK Act was entitled Prohibition of Female Circumcision Act 1985, and the later Act you were talking about, which was the subject of this decision, was then called the Female Genital Mutilation Act 2003. I do not know what to make of that.
MR GAME: Yes, there is something in the context because they talk about it in the second reading speech.
KIEFEL CJ: Yes, thank you. I interrupted you. You were talking about Re B and G (Children (No 2)) [2015] EWFC 3.
MR GAME: If one follows it through, there are said to be four different types. It is said, if one looks, for example, at page 55, a reference to the World Health Organisation 2008, a reference to four different types. There is a type IV referred to there, and again there is a reference at paragraph 8 to four types. Then again there is another reference to UNICEF in 2013. Then there is the 2003 legislation. His Honour in his decision accepts that it brings within types I, II and III but:
Type IV comes within the ambit of the criminal law only if it involves ‘mutilation’.
Mutilation” is not further elaborated. He refers to dictionary definitions and then he goes on to say something else. So, it is a very limited consideration, but it leaves up in the air what one has to say about the fourth category.
KIEFEL CJ: I think it would be found at paragraph 70 of the judgment of the Family Court in that case that his Honour the President determines the question of whether a particular case of type IV4 FGM involves mutilation is not a matter for determination by that court.
MR GAME: Yes.
KIEFEL CJ: I do not think there is any other – there is no other case that deals with the UK provision.
MR GAME: No, your Honour. So I am leaving that subject now, so I wanted to now say something briefly about the ground relating to the definition of “clitoris”. Now, the indictment referred to “clitoris”, the legislation refers to “clitoris”, and the alternative counts were based on things not occurring to either “clitoris” or “labia majora” or “minora”. One ended up in the position that it was said that the clitoris extended ‑ the structure extended to the prepuce. We actually saw a diagram that was of some assistance in the discussion paper.
Now, if one goes to the Court of Criminal Appeal’s judgment on this at paragraphs 526 to 527, and our submissions, in our submission, there is some significance in – it did make a difference, also, in terms of the kind of injury that might be required, because it was said that the clitoris itself was specially sensitive.
What was ultimately put was that if there was injury, it was to the clitoral head or prepuce. Now, the court accepts there, and we say correctly, that they are different anatomical structures, and that was the effect of the evidence and we have set out what Dr Marks had to say about the subject, by reference to the judgment, paragraph 209 of the judgment at page 404, so it did have significance. The passage at 209 ‑ page 404, paragraph 209:
Dr Marks’ evidence was that the hood over the clitoral head is not part of something else – it is the clitoral hood.
So, in our submission, the court came to the correct conclusion about that subject and it did matter in terms of both the indictment and how the alternative was put. Now, this brings me then to how the appeal would be resolved if the appellant succeeded in sustaining an argument that the directions given on ground 1 were correct.
So, as we have said there, the Court of Criminal Appeal explicitly rejected that the offence applied to minor or de minimis injuries and we have set out the passages there. So, that issue was firmly seized by the Court of Criminal Appeal and that is the first significant issue on the appeal. If the appellant succeeds, there are additional reasons – and they are significant ones – for dismissing the appeal and, if not dismissing the appeal, making no order for a retrial. So, there are two aspects to that. To understand this proposition, one needs to go to how ground 2 of appeal was dealt with and that is at appeal book page 495, paragraphs 529, and following.
What the Court decided was that after – so there is a discussion from paragraph 587. At 590, what is happening there is that, on the court’s construction of “mutilation” – that is to say, something more than any injury to any extent, there was no proper basis to convict and, accordingly, acquittals had to be entered. That, then, took the court to the alternative counts. The alternative counts, of course, related to the same conduct that if the same conduct occurred somewhere else than in the identified place, the clitoris, including the prepuce. So, we have already seen that the elements of the offence in one respect, at least as put, involve potentially a non‑transitory injury in respect of assault occasioning.
If we go then to paragraphs 613 and 614, in order to address this question, properly, namely, whether to acquit or order a retrial on assault occasioning, the court asked itself a different question. The court asked itself the question whether or not there was adequate evidence to convict on the basis that the nick or cut, or whatever it was said to be, occurred to the clitoris itself. So, they are not just considering the assault occasioning, as it was put, they were looking at the question on a wider basis, and they come to the conclusion. So then we see some passages I took you to before – the consideration of C1’s evidence at 621 and 622 and a sort of conclusion at 625, and then C2 at 628.
So, the discussion continues. And then, at 634, in effect – one sees at 632, is there evidence to satisfy:
beyond reasonable doubt that there were assaults occasioning actual bodily harm . . . on the basis of a nick or cut to the clitoris ‑
Then, they say ‑ at line 30, they say:
Although we are prepared to accept that a nick or cut to the genital area could amount to actual bodily harm, the question is whether there is sufficient basis –
That ultimate question is left as one has seen it. So, a very real – a lack of conviction in the Crown case on that but not an ultimate firm decision, it would seem but then they add in some other discretionary factors. At 636, the amount of time the case took, the fact of C1 and C2 already having – what has already occurred to them, they are now teenage girls, they would be giving evidence against their mother again so many years later. Then, so we get to 638:
Having carefully examined all of the evidence that would be available on a trial confined to allegations of assault occasioning . . . we do not propose to order a new trial –
Now, then one sees at 618, convictions are quashed, so effectively there is an order of acquittal in relation to the assault occasioning counts. Now, in New South Wales it has become very rare, if not unheard of, for a court not to order a retrial, but at the same time not order an acquittal. There are decisions of this Court from I think perhaps 20, 30 years ago when orders were not made for retrials, even though acquittals were not entered. But normally, if an order for a retrial is not made, then normally an acquittal is entered. But it is open to the Court to quash the decision of the Court of Appeal and not order a retrial without ordering an acquittal. The Court has power to do so.
EDELMAN J: Are you making that submission on the basis of potential inconsistency between verdicts?
MR GAME: Yes.
EDELMAN J: You do not have a notice of contention to that effect.
MR GAME: No, no, I am making that submission on the basis of the weakness of the evidence in relation to C1 and C2, your Honour. I mean, the appellant has not advanced an argument attacking the acquittals, but we have not put on an incontrovertibility ground, if that is the question your Honour is asking me. I am trying to point to the deeper problems that reside in here with the evidence and what I am encouraging your Honours to do so is that even if your Honours accepted the appellants’ substantive argument, there are still the fundamental problems with their evidence and then there are these discretionary factors.
So point 1 is, we say, at least the Court would not order a retrial but point 2 antecedent to that, we say that one would enter an acquittal, having regard to these features of the evidence.
EDELMAN J: Is there any authority in this Court where the Court has entered an acquittal in circumstances in which it is also held that there may be evidence sufficient to sustain a conviction?
MR GAME: I cannot think of a case.
EDELMAN J: I do not know of any.
MR GAME: I do not think of a case that actually deals with that problem but you will see plenty of decisions 30, 40 years ago where convictions are quashed, they do not enter an order of acquittal, but they do not order a retrial. That is not a practice that I am familiar with in the – I could not say definitively about here but in the Court of Criminal Appeal, for a long time now, the court has not made orders just quashing a conviction and not ordering a retrial.
My argument here is this. It is not an incontrovertibility point. My point is, the point is when you look at all of these factors that the Court of Criminal Appeal took into account, this is an appropriate case not just not to order a retrial, but it is an appropriate case for one to order an acquittal.
Or if one looks at that another way, say the court at paragraph 634 – and presumably for discretionary reasons they decided they did not have to go further – they had said that any verdict on that would be unsafe, which is pretty much what they do say.
There is no decision of this Court in which a verdict has been found to be unsafe and ordered a retrial except for the circumstance in which a verdict cannot be sustained on – where a verdict is sought, say, on murder on two separate bases, and it is unsafe; say it is unsafe on felony murder, but not on extended joint criminal enterprise you could conclude the verdict was unsafe, but order a retrial limited to extended joint criminal enterprise but that is the only exception.
There is actually no decision – there is a case called Abbas that got special leave on this but the appeal was resolved ‑ but there is no case that deals with it. So what I am saying is at paragraph 634 they came as close to holding that the verdict was not safe for me put the submission ‑ ‑ ‑
NETTLE J: Close but no cigar. It does not say that.
MR GAME: Yes, I accept that, your Honour, but when you look at all of the things that have been said leading up to that, they are pointing to the very unsatisfactory features of the evidence of those ‑ ‑ ‑
BELL J: Mr Game, you are here talking of the acquittals on the alternative counts?
MR GAME: No, all I am saying is this, your Honours. That argument about alternative counts holds good for the principal counts because the court considered a nick or cut anywhere that it occurred. Since it is anywhere that it has occurred, it takes up all the subject matter of the principal counts.
BELL J: I understand that, but as I understand the prosecution argument, it is that in relation to the principal counts, that was upon a view that an injury that was transient would not be within the provision. If that is wrong, then ‑ ‑ ‑
MR GAME: That is true, except for the fact that the Court of Criminal Appeal was not focusing on the word “transient” in their determination of this question. They just accepted that a cut or nick could amount to assault occasioning. Once you have got the cut or nick to the parts that are said to be caught by section 45, when you get to this discussion that I have gone through you have a deliberative decision about the strength of the evidence on the principal counts. That is the point I am trying to make.
I accept what your Honour Justice Nettle put to me, but all of the discussion before is weighing up what is the strength of that evidence towards a view that it has very unsatisfactory features. That is what we see at the very end when it is said “all of the evidence that would be available” referred to in paragraph 638. So they did not have to come to that conclusion because they were making a discretionary decision about what to do with the balance of the case, your Honours.
EDELMAN J: We would effectively have to reach a conclusion that the evidence could not sustain a conviction before we were to enter an acquittal, as opposed to make no order for a retrial.
MR GAME: That is a point that I am partly trying to challenge because I am saying that you could have regard to discretionary factors in that determination.
EDELMAN J: How then would the law not be hopelessly contradicting itself by saying, on the one hand, there is evidence to sustain a conviction and yet, on the other hand, an acquittal is directed?
MR GAME: If one looks at, say, section 8 of the Criminal Appeal Act, there are plenty of cases at intermediate level where the court determines that, having regard to all of the circumstances including the unsatisfactory nature of the evidence, the court will not order a retrial but they will also order an acquittal. It is not heresy to say that. But you are picking up a variety of discretionary factors, including – I can think of one case in particular, but you are not deciding the thing under section 6 of the Criminal Appeal Act; you are deciding what to do with the case under section 8. So that is really ‑ ‑ ‑
BELL J: In that context a somewhat striking example might be Anderson’s Case, in which the Court of Criminal Appeal, allowing the appeal, found that the evidence was sufficient to support a verdict, albeit not strong, but for discretionary reasons declined to order a retrial, entered acquittal in relation to the offences known as the Hilton bombing.
MR GAME: Yes, your Honour. Another example is JB, an unsuccessful special leave application, where an admission allegedly made to a support person, the support person was in fact the police informer. The court did not go on to determine whether or not the verdict was unsafe. They looked at the significance given to that admission and they ordered an acquittal, without determining that the verdict was unsafe. It happens, and it happens often enough. I mean, it is not much of an argument but it is a practice that happens, and I say for principled reasons. But obviously if one gets to the end of this, my concern is that there would be no retrial is obviously ‑ ‑ ‑
BELL J: Mr Game, do you accept that, if it be the case that the prosecution accepts that it makes no challenge to the acquittals on the alternative counts, nonetheless, having regard to the argument that it mounts, there would not be an inconsistency in a retrial on the principal counts, notwithstanding the acquittals on the alternative?
MR GAME: Your Honour, they may potentially, but that is not to say that the accused could not bring forward their acquittals, for what they were worth, on the question of what the Crown could or could not put.
BELL J: In the way the matter was left though, am I right in understanding that it was in case the jury were not satisfied that the injury occurred to that part of the body that was the subject of particularisation in the indictment?
MR GAME: Yes, it would have to be that.
KIEFEL CJ: Yes, thank you, Mr Game. Mr Dhanji.
MR DHANJI: Your Honours, much of what I would put has been said already. Your Honours perhaps appreciate that from the outline that we have provided. We do not seek to avoid the secondary materials. We have, in our written submissions and in our outline, indicated what we make of those but, like the respondent Magennis, we would start with the provision and we would draw from the provision matters similar to those raised by Mr Game, and that is starting with section 45(1)(a). In our submission, one does take something from the expression “excises, infibulates or otherwise mutilates”, the first two words informing the third concept as a concept of harm of some seriousness.
NETTLE J: Is that to say that it requires at least a cut because of the flavour of “excision” and “infibulation”?
MR DHANJI: At least.
NETTLE J: Anything more though?
MR DHANJI: It is going to depend upon the nature of the cut. So a cut to skin, for example – and skin only ‑ may not be within the idea. A cut that penetrates the skin and can be seen to have resulted in some damage that would fit within the idea of mutilation may. The concession that we made and continue in this Court to make at all stages was that when one is looking at the word “mutilates”, it is not divorced from the subject matter.
The contention we put in the Court of Criminal Appeal was, of course, that it does not change its meaning because of the subject matter, but the way one would get to “mutilates” will vary because of the subject matter. That is to say that because you are dealing with a very sensitive part of the anatomy, it is going to be a lot easier to mutilate that part of the anatomy than it might be, say, an arm or a leg. But it is going to require one to actually examine the harm occasioned on the particular occasion to determine whether it fits within the idea of “mutilates”.
At the end of the day, in our submission, this is a criminal offence provision that is not particularly unusual by way of criminal offence provisions in that it provides for an act and it provides for a result. As Mr Game has pointed out, you see the result stated very clearly. In our submission, you see it in section 45(1)(a), but you certainly see it in sections 45(2) and 45(5), where those subsections speak of the person mutilated. So what one requires by way of contravention of this provision is some act committed – and again, we would say, an act committed intentionally or recklessly. It is not clear on the appellant’s argument how - their formulation is an intentional act for non‑medical purposes, but it is not clear how the recklessness is written out because it is a standard part of criminal offences within this part.
The provision itself, as I say, does speak of “act” and “result”, and when one is looking – and I appreciate that this point has been made by Mr Game but I will just underscore it. When one is looking at, for example, 45(1)(b):
aids, abets, counsels or procures a person to perform any of those acts on another person ‑
what that is speaking of are the acts, of course, in subsection (1); that is:
excises, infibulates or otherwise mutilates –
What we take from that is that, in speaking of those acts in subsection (1), there is an acknowledgement that subsection (1) is not speaking of some unitary concept of female genital mutilation; it is speaking of these separate acts - “excises, infibulates or otherwise mutilates”.
I will come to the second reading speech in a moment, but there is some correspondence there with the second reading speech. Ultimately what we would put is that, when one looks at an umbrella term such as “otherwise mutilates”, it is not unusual because Parliament is forever enacting provisions in circumstances where it cannot ‑ and acknowledges – it cannot foresee a full range of matters that it might seek to capture; it cannot foresee the type of factual scenarios that it wants to catch. But what one does see in the second reading speech and in this provision is the desire to catch actions that result in particular harm.
There is nothing in our submission that one could draw from either the provision or the second reading speech that would suggest that this provision could pick up the type of matters embraced by the appellant which, in our submission, would amount to the mere transitory.
EDELMAN J: Mr Dhanji, section 345(1)(a), which is copied almost verbatim or perhaps verbatim from the UK legislation, contains the phrase in triplicate, but does the UK legislation repeat the umbrella term in the way that it is repeated in subsection (2) and subsection (5) – “mutilated” in the broad sense in (2) and (5)?
MR DHANJI: Certainly in the primary provision, as your Honour indicates, there is no - at least at 710 of the joint book of authorities, the 1985 version shows nothing equivalent to the kind of reference to a person mutilated. There is the subsection (b), which is similar, and there is the penalty provision. There is then a reference to section 2 of the Act in relation to surgical operations. The 2003 provision does not have any equivalence in relation to subsections (2) and (5).
Your Honours, we too would take up the point in relation to not just subsection (3) but subsection (3) and subsection (4) in relation to the exclusion of surgical operation within paragraphs (a), (b) and (c), and your Honour Justice Bell I think made that point most clearly in relation to that aspect.
But further, whether this be by way of clarification or exclusion, it is again noteworthy that there is no equivalent for, for example, the genital piercing case, or the cosmetic procedure case - and one can imagine various cosmetic procedures, and we have referred to waxing in the written outline, where one could well say that there is an intentional act that results in at least a level of injury that would, on the Crown version, on the appellant’s version, come within the provision that would be occasioned at least recklessly because one might well foresee ‑ ‑ ‑
EDELMAN J: I am not sure that was the – as I understood the Crown’s submission, “mutilates” takes its meaning from the notion of female genital mutilation, which I am not sure anyone has ever suggested included waxing or piercing.
MR DHANJI: But that is the difficulty with subsection (3), because subsection (3) and (4) speak against that. You would not need subsection (3) and subsection (4) ‑ ‑ ‑
KIEFEL CJ: Would you have a difficulty of the kind you are referring to, though, if you understood “mutilate” in the context of female genital mutilation to refer to a practice, rather than any act carried out, such as those chosen by people who think it makes their body more beautiful?
MR DHANJI: Your Honour, the difficulty, with respect – I appreciate that that is an argument that is available. But the section, in our submission, is not speaking of a practice; it is speaking of an act and a result, and that is why I started with that proposition.
KIEFEL CJ: I understand that. It is just that the word “practice” appears on about six occasions in the second reading speech.
MR DHANJI: That is so.
KIEFEL CJ: And that is what the Family Law Council report is directed to.
MR DHANJI: That is so. However, there is a difficulty in adopting “practice” to use in that type of context, particularly a non‑legislative context, that is, secondary context, because of course “practice” can pick up, in a sense, a particular act with a particular result. But when one comes to the legislative context, what one sees here is what we say is a typical criminal provision, which is defined by act and by result.
KIEFEL CJ: I understand what you are saying. It is just that the Crown case -the contrary view is that female genital mutilation is a practice, and if you understand subsection (3) in that way, I think it may overcome at least some of the circumstances you were referring to.
MR DHANJI: That is so. But then, of course, one turns immediately to what we say is the difficulty in relation to that, and that is that one is in the territory of then, rather than trying to lend a definition or provide a definition for the expression “otherwise mutilates” in the context of ‑ ‑ ‑
KIEFEL CJ: I understand that.
MR DHANJI: Yes. One is searching for the definition of the practice, or the practice of female genital mutilation. I appreciate, as has been pointed out, that there has certainly been a good deal of discussion in various papers and Parliament can be taken to be aware that there was a good deal of discussion in various forums about the practice.
KIEFEL CJ: Can we infer that Parliament may be taken to understand that female genital mutilation has an accepted meaning at 1994?
MR DHANJI: No, with respect, your Honour, because the bounds – and, particularly – I mean, obviously, a case like this is throwing up issues in relation to the bounds of injury or non‑injury, or de minimis injury, or whether it is a nick or a cut. But, even when one goes to the Family Law Council report – and there is the discussion paper – if I can take your Honours to the joint book of authorities, volume 2, tab 20, and at page 591, what one sees there at 2.01:
Female genital mutilation –
refers to:
Circumcision of young girls is a traditional cultural practice –
It goes on:
Those who oppose the practice call it “genital mutilation”. In this paper when the term “female genital mutilation” is used it is meant to embrace all types of circumcision, other than mere ritual, where an incision is made in the girl’s genital area.
Again, one gets to the – just pausing there – the idea of an incision again throws up all sorts of questions about quite what that means, in our submission.
NETTLE J: It means a cut – to incise – a cut.
MR DHANJI: Yes. But, it has been said – I think it was Justice Callinan in Banditt v The Queen, that there are no true synonyms in the English language. So, you are still – whilst it means to cut – and I do not dispute that – but there is a connotation that goes with it. An incision has more of a quality to cut into. And, I suppose it all depends upon, again, context but it is likely to mean more than a nick or a cut in those circumstances. But the point that I am really trying to make is that when one goes to the report – and this is at page 646 – at 2.01, there is reference to:
Female genital mutilation.
At 2.02, there is a very similar sentence. It is the third sentence in:
Those who oppose the practice call it “genital mutilation”. In this paper when the term “female genital mutilation” is used it is meant to embrace all types of the practice where tissue damage results; for example, damage manifested by bruising, contusion or incision.
GORDON J: That follows on from the opening line of 2.01 which mirrors the part you just took us to, does it not, in the discussion paper?
MR DHANJI: Except, with respect, that there is a reference there, in 2.01, to traditional practices that involve the cutting. But, the statement at 2.02 appears to be broader because it is picking up all types of the practice where tissue damage results but it is talking about – it is including damage manifested by bruising, for example, contusion, which seems to be somewhat broader than simply cutting. That is the definition that is adopted for the purpose of the paper. But, even if one was to, in a sense, dwell on this definition, and say we can take this definition, that one is immediately in the territory of trying to determine what tissue damage is and I think you have been taken to evidence already but very minor actions are going to result in the removal of skin cells which is part of the tissue of the skin.
Clearly enough, when one reads this, where it speaks at 2.03 of ritualised circumcision, what is stated there is:
The first, and least severe form, is called ritualised circumcision. In this case the procedure may be wholly ritualised (e.g. where there is cleaning and/or application of substances around the clitoris). In other forms of ritualised circumcision the clitoris is scraped or nicked. This causes bleeding and may result in little mutilation or long term damage.
The first part in terms of ritualised circumcision would appear perhaps unclear as to whether that is regarded as being within the definition that has been provided at 2.02. But certainly on one view even that type of process, “cleaning and/or application of substances”, cleaning could result in removal of skin cells. I appreciate that I am at a very fine level of detail here, but the point that I am seeking to demonstrate is that once one goes down this path and starts looking at these definitions and is trying to get clarity, there is not sufficient clarity there that one is going to be able to say we can arrive at a kind of received understanding of what is meant by “mutilation” in this ‑ ‑ ‑
KEANE J: We can get an understanding that all these practices are disapproved of. There is no suggestion that some of them are regarded as legitimate. There is no suggestion that the cultural sensitivities that are being exhibited in the second reading speech are reflecting an appreciation that some of these activities may continue rather than that they should all be prohibited. It is a prohibition on the practices. It is not a regulation of them.
MR DHANJI: I apprehend your Honour is speaking about the second reading speech at page 764.
KEANE J: Insofar as it adopts this terminology.
MR DHANJI: Yes, but if I could just turn that up, at 764, the paragraph beginning at line 19, the concluding paragraph:
It is important to stress that in passing a law against FGM the Government is not seeking to attack the values of any particular group in the community. Cultural diversity has always been recognised and supported in New South Wales. However, the wider community should not tolerate a practice which results in detrimental and unfortunate long‑term physical effects.
So there are two things that we would draw from that, and that is there is reference – the reference to cultural diversity is acknowledging that there is a sort of balancing in a sense to be done between values of ‑ ‑ ‑
KEANE J: That is where I have difficulty with your submission, because there is not any balancing – there is no notion of balancing in these materials. The practice described as FGM or the various practices encompassed under that description are all regarded as illegitimate. There is no balancing about it.
MR DHANJI: I am sorry, “balancing” might have been the wrong word. What I am trying to say is that what one takes from that reference is an acknowledgement that there is a trade‑off or a price to pay, however one might put it. But when one comes to the next sentence, what is being spoken of in the context of that acknowledgment that there is at least some price to pay is that the:
community should not tolerate a practice which results in detrimental and unfortunate long‑term physical effects.
KIEFEL CJ: More generally after saying – it does at about six points I think in the second reading speech ‑ that you are talking really about a practice which involves children of tender age. It goes on:
As responsible members of the community, we should place our condemnation of FGM beyond doubt.
MR DHANJI: Yes.
KIEFEL CJ: Not some of the practices, FGM, in fact the umbrella to the wider term.
MR DHANJI: I understand that.
KIEFEL CJ: That is a sweeping statement.
MR DHANJI: But the difficulty with that, with respect, is that if one were to embrace that as picking up all the practices, one is then in a territory of reading section 45(1)(a) as including what is described at 2.03 of the report on page 646 of the ritualised circumcision. The first and least severe form is called ritualised circumcision.
In this case the procedure may be wholly ritualised – for example, where there is cleaning and/or application of substances around the clitoris. That, in my submission, is difficult to reconcile with the idea of a practice which results in detrimental and unfortunate long–term physical effects.
EDELMAN J: Except that it goes on to say when it is talking about other circumstances, in particular the scrape or the nick, that this causes bleeding that results in little mutilation or long–term damage.
MR DHANJI: Yes.
EDELMAN J: Now, it would be hard to read the word “mutilation” as permitting a little mutilation, in the legislation.
MR DHANJI: I understand your Honour’s point and what is being spoken of here is the idea of less mutilation – obviously there can be degrees. It would be unusual to speak of little mutilation in ordinary parlance but the problem here again – and this is the kind of platform from which we jump off – is that one is in a detailed debate in relation to construing expressions in a report that was not even expressly adopted. It was referred to and there is no suggestion of disagreement with it but one is in the territory of a report.
To put it another way, what we have here is a report that is a long way from, for example, a Law Reform Commission report with a set of recommendations and a statement in the Parliament that it is the intention of the Parliament to enact legislation according to the recommendations and the model provisions provided in a particular Law Reform Commission report. It is some distance from that. Indeed, we accept that whilst it is dated June 1994, it is probably the report which was in the mind of the relevant Minister by way of some sort of advance paper but to an extent we are not even certain of that.
So, really, all of this underscores the point that the respondents make, and that is that what one is doing by going down this path is in effect reading the concept of female genital mutilation into the provision and then embarking on an exercise of construing that. The point that we make is that, firstly, you fail at both steps, in a sense. You fail at the first step. You cannot just read “female genital mutilation” - the Court of Criminal Appeal asked itself the right question: what is meant by a provision that uses the words that it does, but does not use the words “female genital mutilation”?
GAGELER J: Mr Dhanji, in defining the offence as being constituted by an act and a result, what is the result for which you contend? Does it differ from the result referred to by the Court of Criminal Appeal at paragraph 521? That is, in terms of leaving the body part in question imperfect or irreparably damaged?
MR DHANJI: Your Honour, again, we take that same approach, and that is to say in terms of construing the provision, the Court of Criminal Appeal at 521 has provided a formulation. In terms of determining the appeal, 515 is obviously critical in terms of deciding what it is not. In our submission, it is sufficient for us to say, well, the Court of Criminal Appeal was correct, at 515, in defining or in making a statement as to what it is not. At 521 there is a positive statement which we would accept as capturing quality of mutilation. Whether in a given case something less might suffice is another question. But certainly it is not, as the Court of Criminal Appeal said at 515:
a superficial shedding of the skin cells –
GAGELER J: In the passage in the second‑reading speech to which you drew our attention, at page 764 there is a reference to:
detrimental and unfortunate long‑term physical effects.
MR DHANJI: Yes.
GAGELER J: Is that a sufficient formulation for your purpose?
MR DHANJI: An act which had the result of producing detrimental, long‑term physical effects would, in our submission, amount to mutilation. We would accept that.
GORDON J: Is that the minimum for you?
MR DHANJI: There is a difficulty – ultimately, I think the question is that it is probably not for me, with respect. It is going to be for the jury. Presumably, a jury is going to want some guidance on this question.
GORDON J: The reason why I ask the question is, if you assume for the moment that, as I understand your submission, you accept in certain circumstances that a cut can be sufficient to satisfy the “otherwise mutilates”?
MR DHANJI: Yes.
GORDON J: And, as I understood the questions which were put to Mr Game, in a sense, have to be put to you as well, that the cutting does not come to light until some years later when someone complains, for example, so that you have got a question about the delay. If you pick up this detrimental, long‑term physical effect and the body has healed, for example, or it is otherwise not visible by means of scarring or some other evidence that can be adduced, is the offence still made out or capable of being made out?
MR DHANJI: It would depend upon what the evidence was, but one could imagine a situation where a complainant might say, for example, “I was in quite severe pain across a period of two to three weeks,” and you might have medical evidence that went in conjunction with that to say that there was significant pain across a period of two to three weeks that would require a level of cut that went beyond the skin and certainly interfered with the wellbeing of the complainant, and that may well be sufficient. One is going to have at the very least the account of the complainant and in a given case you might raise matters in relation to levels of pain, levels of discomfort, the sighting of blood. These are all matters which were ultimately not explored. At 544 ‑ ‑ ‑
GORDON J: Not explored?
MR DHANJI: In this trial. At 544 the Court of Criminal Appeal ‑ ‑ ‑
KIEFEL CJ: I am sorry, which paragraph was that?
MR DHANJI: Paragraph 544, your Honour, at page 499.
KIEFEL CJ: Thank you.
MR DHANJI: It is just picking up submissions that were made about the limitations on the complainants’ evidence. C1 had not excluded pinching. But the particular part, referencing the last sentence:
The appellants note that a number of areas of the complainants’ evidence were not explored by the Crown; for example, what exactly was felt, the nature of the pain, the length the pain lasted, whether they felt dabbing of blood or whether they felt pain urinating in the days that followed.
I am simply making the point that one can well imagine a case – and it might be well after the event – whereupon a person might give evidence of those various things that might be explored that either on its own or in conjunction with other relevant expert evidence would be sufficient to prove mutilation. So it is certainly not an insurmountable problem, and in the context of what typically happens in the prosecution of criminal offences it would barely be described as a problem at all. Indeed, it would be an entirely orthodox style of prosecution in that sense.
Really I have gone a little bit off track but ultimately what we put is that, looking at the various textual considerations, that is, the grouping of words, the position of the particular provision within the Act; that is, Division 6 of Part 3, “Acts causing danger to life or bodily harm”, in that regard it is to be noted that it is in a different division to “assault occasioning actual bodily harm” which itself is in Division 8, “Assaults”. So it is actually rated - or put in an area grouped with offences involving a higher degree of seriousness in relation to danger or bodily harm than assault occasioning actual bodily harm, the context provided by the various subsections that surround subsection (1) and ultimately the fact that one has a maximum penalty, then seven years, now 21 years.
Now, in terms of the secondary material, I think I have said what I wanted to say, somewhat out of turn, in relation to the various reports. We are, in a sense, in our submission – and I appreciate Mr Game has made this point – we would say we are very much in Milne-type territory. That is, even if one could find it to be open, or this alternative use, when one looks at the statutory text, it just cannot bear the meaning on which the Crown would place on it.
Clearly enough we have made reference to a number of authorities with respect to statutory construction. Your Honours will appreciate we have performed the exercise of obviously not just picking out the various statements of principle, but in our written submissions we have performed the exercise of attempting to elucidate in very brief form how they actually applied in the particular cases in which they were applied. What one sees through that exercise, in our submission, is no use of those types of constructional principles that would take one as far as we say the Crown needs to go, or the appellant needs to go, in relation to this case. Your Honours, in relation to ground 2, I adopt what has been said by Mr Game, and similarly in relation to the issue of retrial.
BELL J: Just in relation to that last‑mentioned issue, if one accepts for present purposes that it would be open to the Court not to order a retrial, notwithstanding it was of the view that there were some evidence capable of sustaining a verdict on the first count, in circumstances in which there is no suggestion of a misstep by the Crown, what would be the basis for not leaving the discretionary considerations on which you rely to the Director?
MR DHANJI: Your Honour, can I first of all make this submission in relation to the premise of the question, and that is, we do not accept that there was no misstep by the Crown. The Crown led the evidence of Dr X over objection. Dr X was not able to give evidence of the opinions which Dr X gave. Dr X’s evidence was described by the prosecutor to the jury in closing address as - I think the word was critical or very important bridging evidence. So it was actually linking - it was actually trying to deal with, if I can put it this way, the difficulties raised with the evidence of the complainants – and Mr Game has taken you to that and I think I just – at 544 and the following passage.
BELL J: Yes.
MR DHANJI: You have got this problem with - C1 is the best and C1 cannot exclude, for example, pinching. You have got this problem that is at the centre of this case, and that is that really, with the exception of Mr Game’s client, no one is actually able to say quite what the level of contact was.
So you have got a real paucity of evidence there. You have, we accept, various intercepted conversations, but they are all seen in the context of, as I say, no one other than perhaps Mr Game’s client knowing - and perhaps not even her - knowing quite what the level of contact was.
KIEFEL CJ: What about the conversation between A1 and A2 about what was involved in the practice?
MR DHANJI: Well, there are two points to be made in relation to that. That was firstly whether they were speaking more generally, as opposed to what necessarily happened here, and there was no general practice case as opposed to a coincidence case between the two complainants.
Secondly, the point that I make in relation to that is, at best you are still only getting to A2’s understanding in relation to obviously something which happened very quickly, in a location that was presumably not easily observed by a person other than the person performing the actual procedure. So even A2 could not be taken to have known precisely what it was that occurred.
It is not just the problems with the evidence and it is not just the problems created by the conduct of the prosecution. I appreciate that raised against us is what was said in Taufahema, but Taufahema of course was a very different case that involved a murder of a police officer. I will not take your Honours to it, but what happened in Taufahema was in fact the Court, in discussing these issues distinguished Anderson, a matter raised by your Honour Justice Bell, and set out at paragraph 55 a whole lot of factors, most of which did not apply in the case of Taufahema. But when one looks at them, most of them apply here.
So you have got the unusual factor that the respondents have received a verdict of acquittal, and there was an appeal to this Court against the acquittal. You have got the fact that we are talking about now events that occurred in 2012. They were investigated – well, the first event was
probably sometime before that, but at the latest, 2012. Investigation and charging - charging was in September of 2012, followed by a trial in 2015. If there was to be a further trial in the matter, that trial was going to take place, one would have thought, at best in 2020, so five years after the original trial, and eight years after the investigation and charging, all in circumstances where A2 and Mr Game’s client has served their sentences.
Mr Vaziri served three months of his 11‑month non‑parole period, but then spent a period longer than the non‑parole period on a form of bail equivalent to home detention, and that is why we have put the bail decision and the conditions that applied in the additional appeal book. Again, this is all in circumstances where you have complainants born in 2003 and 2005, engaged in a JIRT interview on 29 August 2012, when the younger one was just short of seven and the older one was just short of nine. They are 10 and 12 by the time of trial. By 2020, they would be either 14 and 16 or possibly 15 and 17.
So, you are talking about having these events continue in these young girls’ lives – that is the prosecution and giving of evidence against their mother – going on, in the case of C1, from the age of eight to the age of 16 and, in the case of C2, from the age of six to the age of 14. So, to answer your Honour’s question, in a sense it is difficult to imagine a case that would be, in a sense, more compelling with respect to discretionary considerations that would militate against the ordering of a retrial. That is what I would say in relation to that. Those are my submissions, your Honour.
KIEFEL CJ: Thank you. Reply, Mr Kell?
MR KELL: Yes, thank you, your Honour. There are just four points that I wanted to touch on. The first was in response to the question, just before lunch, about the World Health Organisation. What the material – and I will just deal with the starting point – so, in the second reading speech, there is reference at page 762 of the appeal book, at about line 38. It is not particularly precise, what was stated in the second reading speech, but it says that:
The practice has been condemned at an international level. The World Health Organisation has recommended that governments adopt clear national policies to abolish the practice.
What we have been able to find ‑ ‑ ‑
KIEFEL CJ: That is obviously a reference to what is in the Family Law Council report, is it?
MR KELL: It is a reference to the World Health Organisation at that stage. The Family Law Council report was an article in 1992.
KIEFEL CJ: That is right.
MR KELL: Yes, but if one looks at page 852 of the same book – joint book of authorities – which is within the Queensland Law Reform Commission report of September 1994 ‑ there are three references to note. At page 852, there is reference and then a quote from – sorry. First, there is a reference to the World Health Organisation having released a position paper on female genital mutilation and then there is a quote from it which refers to the:
Khartoum Seminar of 1979 –
Then, that:
WHO support the recommendations . . . These were that governments should adopt clear national policies to abolish female circumcision –
and the like. We have ‑ ‑ ‑
KIEFEL CJ: We cannot be sure that this is the World Health Organisation recommendation that is referred to in the second reading speech.
MR KELL: We cannot be certain because ‑ ‑ ‑
KIEFEL CJ: The other thing is that quite a bit moved on.
MR KELL: Yes. As recorded by the Queensland Law Reform Commission report, the next matter to note is on page 853. There is a similar recommendation by the World Health Assembly which is part of the World Health Organisation, I understand. I will come to the date of it in a minute. But, paragraph 2 of that is in similar terms. So, the World Health Assembly urged all Member States, relevantly, to abolish female genital mutilation. The date that is given there is 10 May 1994 – sorry, is May 1994. From our research over the lunch break, we seem to date that for 10 May 1994 which would come a few days after the second reading speech. But, again, we are left with – the second reading speech itself does not give precision as to ‑ ‑ ‑
KIEFEL CJ: Perhaps you could undertake some further research as to whether there was a World Health Organisation recommendation in existence at May 1994 or prior and if you wish to make any comment upon it add that to a note within seven days.
MR KELL: Yes.
KIEFEL CJ: If the respondents would then wish to comment upon any comment that you make, to respond to it, and they respond within another seven days.
GORDON J: Can I just suggest that in chapter 4 of the Family Law Council report there is a whole wealth of material about women’s rights, including World Health Organisation reports done in combination with UNICEF and the like which may very well be the papers referred to.
BELL J: Indeed, on the page that you have taken us to in the book of authorities at 853, footnote 178 refers to the World Health Organisation publication of January 1994, in which it would seem such a recommendation was made.
MR KELL: Yes, although partly that is quoted in the passage at the last paragraph at the bottom of 853 and continuing over, which does not seem to have the terms there.
KIEFEL CJ: Perhaps if you could further refer to it. I think the Court would be assisted by a note from you, making comment upon the recommendation.
MR KELL: Yes.
KIEFEL CJ: The respondents, of course, are entitled to respond in the time that I have indicated.
MR KELL: Certainly. We will attach to it, as long as it is not too lengthy, copies of the WHO publications that we have found that relate to that. The second point is – I had just wanted to confirm this over lunchtime and I do so – to make clear that a retrial is not sought on the alternative counts. It was just something I wanted to confirm.
The third point is that both respondents made reference, although not in their written submissions, to the position of the offence in Part 3, Division 6 of the Crimes Act. That was referred to in Mr Game’s summary that was handed up today, I think at paragraphs 11 and 12. We would just say briefly that Part 3, Division 6 of the Crimes Act is entitled:
Acts causing danger to life or bodily harm
Its position in that division and part does not suggest that section 45 must contemplate a higher or a high level of injury and a number of offences in that division contemplate injury or an intent to injure at a level of actual bodily harm or less. I will just give your Honours the references, so sections 35A(2), 41, 41A, 51A(1) and 53. They are a miscellaneous group of offences, but they do not – so there is nothing relevantly that assists from considering the context.
The fourth point is, going back to the question of retrial and the various matters that were raised against us, we point first to the fact that in the CCA judgment, there was no finding made about – and this was accepted, I think, by Mr Game – that there was no finding made about the evidence that would be – what the evidence could establish on the alternative counts. There are some negative comments, but there is no finding and then there are two paragraphs where discretionary considerations are referred to.
That was at appeal book 524 to 525, from paragraph 635 and onwards. We say two things. The discretionary considerations here are more powerful and favour the position of the Crown, given that what we submit are more serious offences, and there is a heightened public and community interest in the prosecution of these particular offences, contrasting to the alternative counts.
The further final point is that there is substantial evidence that supports the charges, we say, and we have referred to it in our written submissions. My friend touched on a couple of points, but when one looks at the material, there is evidence in connection with the cutting of C1 who says, “It happened to me,” that is, that she was subject to a type of cutting to her private parts.
She recalls being told – at appeal book 358, the judgment, 24 to 25, she recalls being told to close her eyes and to imagine that she was a princess in a garden. So she does not at the time have her eyes on whether there are drops of blood and the like from a procedure that is being done.
She gives evidence at appeal book 359 that it did hurt a little bit and when asked where she says, “In the private part”. She also says at 360 that, “it’s part of our culture” and “has to happen to every girl”. Then at 360 they give a little cut and she is asked where. She says, “In your private part”.
Then, in her evidence at trial, she refers to having seen a silver‑looking thing, not that it was forceps but that it looked like scissors, which was consistent with cutting. And at appeal book 395, says:
most likely it was cut ‑
And the evidence of C2 is similar – sorry, is not as strong. But in combination with both of those pieces of evidence, which the Court has touched on briefly, that there is, at least insofar as A2 there are, in a separate conversation where A2 and A1 refer to the cutting, and A2 tells her husband, in response to a question as to whether they cut the whole clitoris, she says, they do, i.e. cutting the skin a little bit, just a little, and that a little bit of skin is to be removed, which applies to both C1 and C2.
We say that there is material that would justify a retrial and that your Honours should, with respect, make an order for retrial having regard to the material. Thank you, your Honours.
KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.
AT 3.59 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
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Charge
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Sentencing
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Appeal
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Jurisdiction
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