R v A2; R v Magennis; R v Vaziri

[2019] HCATrans 16

[2019] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S235 of 2018

B e t w e e n -

THE QUEEN

Applicant

and

A2

Respondent

Office of the Registry
  Sydney  No S236 of 2018

B e t w e e n -

THE QUEEN

Applicant

and

KUBRA MAGENNIS

Respondent

Office of the Registry
  Sydney  No S237 of 2018

B e t w e e n -

THE QUEEN

Applicant

and

SHABBIR MOHAMMEDBHAI VAZIRI

Respondent

Applications for special leave to appeal

BELL J
GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2019, AT 11.37 AM

Copyright in the High Court of Australia

____________________

MR D.T. KELL, SC:   May it please the Court, I appear with MS E. JONES for the applicant in the three matters.  (instructed by Solicitor for Public Prosecutions (NSW))

MR T.A. GAME, SC:   If it please, I appear for the respondent, Magennis, with MS G.E.L. HUXLEY.  (instructed by Armstrong Legal)

MR H.K. DHANJI, SC:   May it please the Court, I appear for the respondents, A2 and Vaziri, with MR D.R. RANDLE.  (instructed by Armstrong Legal)

BELL J:   Yes.  Having regard to the submissions, the convenient course, as I understand it, would be, Mr Kell, for you to address the issues that are common to all three applications and, Mr Game, you will be addressing, I think, the first and second of the considerations and you, Mr Dhanji, the third and fourth.  Yes, thank you, Mr Kell. 

MR KELL: Your Honours, section 45 of the Crimes Act (NSW) was introduced in 1994 and enacts a prohibition on female genital mutilation. The text of the provision is at application book 697 which is volume 2. It provides that:

A person who:

(a)excises, infibulates or otherwise mutilates the whole or any part of the . . . clitoris of another person ‑

commits an offence.  The New South Wales Court of Criminal Appeal quashed the convictions of the first and second respondents of offences contrary to that provision and the conviction of the third respondent as an accessory on the basis that the provision requires the Crown to prove that the complainant’s clitoris has been rendered imperfect or irreparably damaged in order to make out the offence and that is at judgment 521 and 509 of the judgment at the Court of Criminal Appeal.

GAGELER J:   The exact error that is said to have occurred in the instructions to the jury is recorded at paragraph 522, I think, and as I read it the problem is that it allowed for a “de minimis injury” to give rise to criminal liability.

MR KELL:   Yes.  The reference there is to the inclusion of the words “to any extent” but the construction which the Court of Criminal Appeal arrived at is the one indicated at 521 which is in the preceding paragraph which is that the term:

connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion.

EDELMAN J:   It really comes down, ultimately, to does “mutilates” have its ordinary meaning or does it have a meaning commonly understood in the expression “female genital mutilation”.

MR KELL:   Yes, using the term “ordinary meaning” as being common parlance about reference to statutory context and purpose.

EDELMAN J:   Yes.

MR KELL:   It was accepted by the Court of Criminal Appeal that there were a range of meanings for “mutilates” but that - potential meanings available so that one is in the area of constructional choice but that as a matter of common parlance that the most - or perhaps the most ordinary common parlance meaning is one which is something beyond injures and is maiming and the like. 

But the question that arises here is – and what the Court of Criminal Appeal has done wrong, we say, in its constructional exercise, is that it has looked at meaning without reference initially to statutory context and purpose and looked for a common parlance meaning and then looked for reasons to depart from that and found that there are no reasons to depart from that having regard to context and like. 

BELL J:   Mr Kell, when one goes to the statement of principles as to matters of construction – could you take us to where you say the error in approach is best illustrated?

MR KELL:   I can do it by showing the steps that the Court of Criminal Appeal has done.  So it has referred to particular cases and it is – going back one step – as I have said there is a range of potential meanings that can be attributed to the word “mutilates” and the Crown contention which is “mutilates” means injures may be accepted that that is at the lesser end of the spectrum but it is within what would be a constructional choice. 

Then what the court has done is, after referring to various dictionary definitions and the like, it has observed as a starting point - and this is at about judgment 489 at application book 483 - and then at 495, if I just go to that one, so at the top of page 486 of the application book, the Court of Criminal Appeal has referred to:

The text of the offence provision, in our view, particularly the use of the verb “mutilates” rather than simply “injures” or “damages”, suggests that more than the causing of an injury is required –

and then again, refers to:

impairing or rendering imperfect the body part that is mutilated.

From this, as it were, starting point, the court then reasoned that, firstly in 495:

The fact that s 45(1) is concerned with sensitive body parts which may more readily be impaired or rendered imperfect does not warrant expanding the meaning of “mutilates” to encompass any injury to any extent.

What they have done in that step, and similarly when I come to 496, is that they have fastened upon a meaning which is a common parlance meaning which may be accepted as a matter of common parlance and then the error in approach here and in 496 and 497 is to look to reasons to depart from that common parlance which are reasons of context and purpose rather than taking into account simultaneously, which is what the authorities mandate, context and purpose as a means of ascertaining meaning at the beginning. 

So the language in 495, for example, is, in the second sentence, that fact which is that the object of the verb – the subject matter of the verb is a sensitive part of the female anatomy - does not warrant the expanding the meaning of “mutilates” to encompass injury to an extent.  We submit, respectfully, that the subject matter of the verb in terms of ascertaining meaning must be a matter that is relevant to meaning and construction.

BELL J:   Does not the court accept that having regard to the sensitivity of the body part it acknowledges that a “cut” or “nick”, to use the expressions that were used, might amount to mutilation but what it is giving content to is the verb “mutilate” so that it is not that in its application it may not vary depending upon whether one is speaking of the sort of degree of injury required to answer the description “mutilation” with an arm as distinct from a clitoris, but the point underlying it is their Honours start with the statutory text - and “mutilate” is a strong term and it requires that consideration be given to the text.  Their Honours had earlier, I think, referred to SZTAL and authorities dealing with approach to construction and as I understand it really you are not at odds with the respondents in that regard as to the application of the principles.

MR KELL:   If I could put it this way, your Honour.  When your Honour posits in exchange that they start with the statutory text, the difficulty is they do not appear - to a constructional exercise where purpose and context is taken into account at the stage of ascertaining meaning because – and your Honour raises, again by way of argument, the point that “mutilates” is a strong term, but the answer to that is not really when considered in context. 

“Mutilates” is a term that has a particular affinity with the subject matter here which is female genital mutilation which is clear by reference to the title to the amending Act, by reference to the heading to the provision and, similarly, by reference to the extrinsic material which is relevant to ascertaining context and purpose and the mischief ‑ ‑ ‑

EDELMAN J:   The WHO report and the Family Law Council report both effectively contain definitions of “mutilation” in the context of female genital mutilation as in, for example, the family law report, all types of the practice where tissue damage results.

MR KELL:   Yes.

EDELMAN J:   So your point is really if one started holistically with all the extrinsic materials then actually you immediately have two potential definitions in front of you.

MR KELL:   Yes.  The affinity with the subject matter is shown also by the other terms.  So when the surrounding terms “excises” and so on, the language of female genital mutilation, as is “mutilates” and, as your Honour rightly, with respect, indicated, the material shows – extrinsic material which again is relevant to statutory purpose and object relevant to ascertaining meaning shows that there was a clear intent that female genital mutilation as broadly understood, which includes any tissue damage, be prohibited by legislation.

BELL J:   To the extent one looks to the extrinsic material to assist in ascertaining the mischief, one does see in the second reading speech reference to three forms of female genital mutilation and reference to the Family Law Council’s report which referred to a fourth.  So, on one view, it is notable that the legislature chose, to the extent that one has regard to the Minister’s speech in identifying the purpose as dealing with three and not four methods, the fourth being the sort of broader notion of ritual female genital mutilation.

MR KELL:   Can I respond to that in two ways?

BELL J:   Yes.

MR KELL:   Certainly that argument is raised against us.  The first is that that argument can be and is drawn from one aspect of the second reading speech.  The second point is this.  There can be no doubt that in 1994 the discourse about female genital mutilation in this country included - the concept extended to the cutting and nicking of a clitoris as the Crown contended here and just by way of ease of reference – in the second application book we have just included at page 747 at footnote 7 - and I will just do this very quickly.  Your Honours will see reference to the Queensland Law Reform Commission report of September 1994:

(describing “the scraping or simple nicking of the clitoris” as “the least intrusive form of mutilation”) ‑

So this is an area of discourse where, as at the relevant time this provision came into play, the concern here for the Crown was a recognised area of female genital mutilation as understood in this country by authoritative sources.

EDELMAN J:   You also, I suppose, do have the preceding sentence in the second reading speech which is that:

It will be an offence for anyone to perform FGM in this State.

That is clearly talking about mutilation in the broad sense encompassing the whole of the practice.

MR KELL:   Yes, and I respectfully endorse that comment.

GAGELER J:   The whole of what practice?

MR KELL:   The whole of the practice of female genital mutilation which includes damage to the tissue – general area of girls who ‑ typically prepubescent girls.

BELL J:   The whole of the practice categorised in the Family Law Council’s report in four categories.

MR KELL:   Yes, that is right.  There is no doubt, respectfully, that the Parliament intended to enact what was being recommended by the Family Law Council and it is inconceivable, with respect, that Parliament was intending to enact a provision that had such a high threshold as the construction of the Court of Criminal Appeal has resulted in where the deliberate damage ‑ the deliberate cutting to the clitoris of a prepubescent girl is not an offence because the clitoris has not been rendered imperfect or irreparably damaged in circumstances where, for obvious reasons ‑ ‑ ‑

BELL J:   For my part, Mr Kell, I would not read this judgment as sanctioning the deliberate cutting of the clitoris of a prepubescent girl.  Their Honours are at some pains to point to the possibility that cutting or nicking may amount to mutilation; it depends on the circumstances.  As Justice Gageler has pointed out all of this takes place in the context of a direction that injury to any extent would come within the concept of “otherwise mutilates” for the purpose of the attachment of criminal liability.

MR KELL:   Yes.  There was one other point I just want to come back to you on the point your Honour raised but injury, to an extent, is injury.  So, it is not harm.  It is not things falling less than injury to the clitoris.  So, to the extent that that is a qualification, it is little.  But the other point in response to what your Honour had raised about the categories is that a key point of the extrinsic material, which was touched on fleetingly by the Court of Criminal Appeal, is the explanatory memorandum. 

If I could just go to application book 1, it is set out at page 65.  This is the judgment of the trial judge – pages 65 to 66, so right at the bottom of 65.  This is obviously the explanatory note that accompanies the Act and the offence provision to be enacted.  At the top of 66 it makes clear that:

“Procedures involving the incision –

so the cutting:

usually removal -

but that is not exhaustive, so:

“Procedures involving the incision ‑

relevantly:

of part or all of the external genitalia of young females are practised by some groups . . . The practice can lead to –

and then there are the various dangers that are listed – infection, dysuria (painful urination) – so again, a small cut is an incision, a small cut obviously can lead to infection.  In our submission, it is a strong contextual indication in the explanatory memorandum accompanying the Act that what is sought to be prohibited is conduct that includes the cutting of the genitalia of a young female that can lead to infection.

BELL J:   In that respect, the explanatory note uses the word “incision” but the legislature enacting the offence used the word “excises”. 

MR KELL:   Yes.

BELL J:   The explanatory note - you suggest that we are to take something from the use of “incision” which does not appear in the text of the offence‑creating provision.

MR KELL:   The explanatory note refers to the incision and usually removal, so the removal will be excising.  The explanatory note is indicating that the incision which is the cutting is something different from excising.  It is obviously different from the infibulating which is the sewing, so it is a strong indication that “otherwise mutilates” is a term that is apt to encompass the cutting which can lead to infection.

GAGELER J:   The Minister used the word “excision” for removal - what do we make of that – and then went on to refer to three categories.  Do those three categories cover the totality of the prohibitive conduct in your submission?

MR KELL:   Within the section itself?

GAGELER J:   Yes.

MR KELL:   We say no because – and this was a point that – either the term “sunna” which is understood to be something different from “otherwise mutilates” in the description within the three categories, then what that does is to leave the term – so, if it is effectively an excising then it leaves with other work to do the term “otherwise mutilates”.

EDELMAN J:   “Sunna” itself is ambiguous.  It is just Arabic for “tradition”.

MR KELL:   Yes.  That is a matter that Justice Johnson raised in the judgment at first instance or the ‑ ‑ ‑

BELL J:   I think when one then turns to the Family Law Council report, the term “sunna” is used to describe what the Council prefers to categorise as “clitoral circumcision” involving the removal of the clitoral prepuce.  So that if one – this is, in a sense, the difficulty of these extrinsic materials, is it not?  To the extent one is looking at them for the purpose of identifying the mischief, one might think one sees indications going both ways so that at the end they may not be so helpful.

MR KELL:   Taken as a whole we submit that they do not indicate a restrictive construction of “otherwise mutilates” as the Court of Criminal Appeal reached here and that also that what – by the Court of Criminal Appeal fastening upon the three categories that are referred to within the second reading speech, one of which is a term which itself is ambiguous, that they have given disproportionate importance to one aspect only of the second reading materials in circumstances - even of the second reading speech – in circumstances where the clear legislative intent was to prohibit female genital mutilation in all its forms, which is made clear by the Family Law Council and the second reading speech, the explanatory note.

GAGELER J:   What is the strongest indication in the secondary material in favour of your construction?

MR KELL:   I mean it is a dangerous question to answer.  The explanatory note is powerful and, we submit, compelling material.  The Family Law Council material, when read with the second reading speech, is similarly compelling because it indicates an intention to prohibit all the practices and the second reading speech itself makes clear that the intention was to prohibit all the practices as well.  The second reading speech in the fifth paragraph makes clear that the policy of the provision is the protection of children.  The Bill has its roots in the protection of children from a practice that is extremely painful and has no beneficial physical effects. 

This is not a circumstance where one might be – one could rapidly discern that there may be a coherent legislative choice injecting an offence provision at a particular level of harm, whether it is…..or some other context.  This is the protection of young children from an offence where Parliament has clearly indicated that it is abhorrent and has no beneficial, physical effects.  It is inconsistent with a construction arrived at where one has to prove irreparable damage or rendering imperfect the genitalia of a young girl.

BELL J:   Yes.

MR KELL:   I will just quickly deal with some of the other steps which have indicated error.  One is – at paragraph 496 which is at application book 486, the court similarly referred to the potential evidentiary difficulties caused by a construction which requires proof of actual impairment or imperfection as being matters that do not justify departure from the construction which is the meaning of the term in its common parlance. 

Also, at paragraphs 514 and particularly 521 which is at application book 493, after referring to the second reading speech in the Family Law Council, the Court of Criminal Appeal referred to that material as informing the context of the provision but cannot change the meaning of its terms and:

do not permit a construction of “mutilates” that departs from its ordinary meaning –

So, again, the court at that stage, is not seeking to choose between a range of potential meanings as properly required by constructional choice at a starting point but is saying there is nothing here – is there anything here that – by which we need to depart from - what is, effectively, the common parlance?  The problem with doing it that way, we say, is that you undervalue context and purpose ‑ you necessarily undervalue context and purpose by saying, effectively, this is the default position.  Is there anything by which we should move away from that position?  If it is convenient, I would move to the second of the special leave questions.

BELL J:   Yes.

MR KELL:   That can be dealt with briefly.  The medical evidence at trial was that “clitoris” was a global term that included the clitoral hood and that the clitoral hood is part of the clitoral anatomy even though it is, in fact, on one view a different tissue or different structure and the evidence is recorded in application book 494.

BELL J:   In terms of the importance of this second aspect of your application it really was a pleading issue, was it not - was the way the prosecution chose to put its case.  There is no issue but that the prohibited conduct involves any mutilation of the labia majora or labia minora or clitoris.  So it was the way the case was put.

MR KELL:   It arose because of the form of the indictment so that was the context in which it arose but it still brings into question again the construction of terms of this important provision.  We have dealt with that in the written submissions.  I just see the light – could I just say this that the application raises a matter involving what we say is a profound misunderstanding of an important offence provision which would be perpetuated - it failing a grant of special leave and consideration by this Court. 

It raises a novel and important question of statutory construction.  It is a provision which is not in identical form but is in comparable form in other Australian States and Territories.  This case is the first prosecution of its kind.  The Court of Criminal Appeal decision is the first appellate consideration of the matter.  Unless that judgment is corrected it is likely to be applied by trial judges in other States and Territories in dealing with the term “mutilate” or “mutilation” in their comparable provisions and the judgment ‑ ‑ ‑

BELL J:   It might depend very much upon the form of the provision.  Some emphasis was placed in the court’s analysis on the absence in the offence‑creating provision to use the expression “female genital mutilation”.  I do not know, Mr Kell, but it may be that the offence is differently provided for in the legislation of other States and Territories. 

MR KELL:   It typically incorporates reference to the term “female genital mutilation”.

EDELMAN J:   Was New South Wales first or did it follow other States?

MR KELL:   It was the first in this country and it followed the UK legislation.  It typically incorporates reference to “female genital mutilation” in the text as opposed to the heading and the title to the Act but then similarly typically defines that expression by reference to the term

“mutilates” or “mutilation” so that the question still would arise in those other States and a judgment of this Court could provide important - obviously provide important guidance.

BELL J:   Yes, thank you. 

MR KELL:   Thank you, your Honours.

MR GAME:   My answer to the last point was if the legislature wanted to prohibit something described as “female genital mutilation” then they could have said that in the provision and they could amend to say it in a provision.  But what this case decided, if the Court pleases, is that – and the Crown tries to weigh in on what the court said in expounding meaning without facing up to the difficulty that the direction says “injury to any extent” and how they get – and including a nick or a cut – a nick, for example, one does not even normally think of that as harm.  What never happens is an actual construction in the judge below - I will come to him shortly - of the actual things that are prohibited by this provision.

I will come to this as well but it is quite clear, in my submission, that the court did the very thing that is to say in context, in context of a sensitive part of the anatomy and in the context of female genital mutilation – they said that at paragraph 474 and elsewhere but I will come back to that shortly.

EDELMAN J:   Mr Game, do you say that in future cases if a direction were given in almost verbatim terms to paragraph 521 that it would be necessary for the Crown to prove that the action or the cutting had rendered the “body part in question imperfect or irreparably damaged in some fashion” that there would be any ground to complain about such a direction?

MR GAME:   Whether the Crown would have any ground?

EDELMAN J:   Whether or not there would be – yes, whether the Crown would have any basis to complain about such a direction.

MR GAME:   Well, one needs to actually be – that is an exposition of what the court was saying and, for example, they said that there were circumstances in which a small cut, for example, could cause mutilation because of tissue damage, for instance, or nerve damage or something of that kind.  But “injury” or “damage” does – “mutilate” does imply something more than superficial but when it says “imperfect” you may need exposition of what that means because the court was not saying “forever imperfect”.  They are clear about that.  So, you would not just pick that up and read that out to a jury and the court is not saying you would just pick that up and read it out.

EDELMAN J:   So, in every case, therefore, there needs to be medical evidence about the likely long‑term consequences of a cut or nick?

MR GAME:   Not necessarily, your Honour, but it is – there would need to be evidence that describes something that amounts to “mutilate”, namely, something that creates – it does not have to actually be permanent, significant damage, or something more significant than de minimis.  It is to be recalled, your Honour, two things – one, what is in question here is not whether or not something is or is not the appropriate words for a future jury direction but whether this jury direction was correct.  In my submission, it is manifestly clear that ‑ and it is important ‑ ‑ ‑

EDELMAN J:   No, the question is whether the Court of Appeal’s decision was correct. 

MR GAME:   Well, the question is whether or not the Court of Criminal Appeal was correct in saying that the direction was incorrect and that is the question.  That question is – the Crown has to come back to talking up what the Court of Criminal Appeal said about what it means.  There is a second part that I will come to if I have time.  The Court held there was not even evidence of a nick or a cut.  They did hold that for the purposes of determining the second question.

What one has to do is understand how it was that they got to – I am sorry, there are some other passages, your Honour, that set out what the Court actually concludes about the question and one does need to look at them.  For example, you see at 522:

We accept that a cut or nick could, in a particular case, amount to mutilation –

There is, back at 515 - and this may answer your Honour’s point - nobody is saying that there was any tissue damage in this case and tissue damage could amount in a particular case to mutilation and the court is accepting as much in paragraph 515. 

I will go back to what his Honour decided but there is a fundamental problem and it is a very deep‑seated problem with the approach to construction and that explains why he got where he did because what his Honour did - and you can see it if you go to application book 52 - he looks at the long title “female genital mutilation” but he does not look to what was prohibited by way of female genital mutilation.  He goes to a very large body of material that describes the widest possible scope of female genital mutilation.  That, in fact, extends to some symbolic acts that actually are purely ritualistic. 

EDELMAN J:   Your submission is that a cut or a nick that does not amount to mutilation in the sense of – in the dictionary sense of meaning some form of imperfection, irreparable damage or something like that – that that is not female genital mutilation?

MR GAME:   I would not put it that high.  I say tissue damage could amount to mutilation and it would not be correct to leave it to the jury in that way.

EDELMAN J:   Why is not a cut or a nick always tissue damage?

MR GAME:   It is just superficial.  This is just a superficial – I mean, we get down to what was actually talked about was scraping of skin cells but we are construing words – “excise”, “infibulate”, “mutilate”, that is a million miles from that which is in this statute – that is a million miles from it.  But what his Honour did was this and it explains why he has picked everything up because having gone through all of this material – World Health Organisation, Family Law Council, second reading speech, other material, we see a whole series of different descriptions of it and then we get to page 81, paragraph 232.  Now, 232, having gone through all of that material he says:

In my view, the section may be construed appropriately as the legislature using two specific terms . . . to incorporate all other forms of FGM –

But that is not what the section says.  The section says “all other forms of mutilate”.  So, what happens then – and that proposition at 232 is entirely circular and it goes nowhere and that is the centre of this judgment.  If you then go to 243 we see his Honour speaks of an “umbrella term” and he picks up an umbrella term.  Then if you go back to the definitions at 159 – paragraph 159 – 157 to 159 and then we see the reference to a catchall term, so what his Honour has done is pick - defined “otherwise mutilates” as all of those things that are caught by the definition of “female genital mutilation” in various dictionaries – not the word “mutilate”.  So it is all wrong.  Then he says at ‑ ‑ ‑

EDELMAN J:  So the words “otherwise mutilates” have a different meaning from the words “female genital mutilation” in the short title?

MR GAME:   Yes. 

EDELMAN J:   All right.

MR GAME:   Sorry, it has a different – no, what the word is – the words are an exposition of what is prohibited and one cannot extend the offence one millimetre beyond that which sits in the provision.  You are not going to get there by going to the heading of the amending legislation.

EDELMAN J:  Or any of the extrinsic materials.

MR GAME:   No.  Well, the extrinsic material tells you a whole lot of things about female genital mutilation.  It does not tell you about the definition of the word “mutilate”.  What “otherwise mutilates” opens up is otherwise categories of mutilation, not otherwise categories of female genital mutilation.  In my submission, that point is unarguable. 

Now, at paragraph 247 on page 85 we see the kind of things his Honour is trying to pick up - “ritualised circumcision”.  Then he picks up a whole series of things – “pricking, piercing” - so a prick would be caught by this.  That is why it is such a wide thing because it describes everything that can fall within the description of what might be described as the ritualised activity. 

Then you go finally at 249, that – this idea of a choice, ordinary meaning or FGM literature sets up a duality which is a false duality and the Crown’s argument to you depends on a false duality, a false duality that the Court of Criminal Appeal did not engage with and their judgment does not suggest that.

So, in our submission, that judgment is completely misconceived and allowed an entire case to be put on a basis where very little, if anything, could be established.  As we know, the fresh evidence shows that there is, in fact, now no damage and the Crown put the case on the basis that there may be a removal of the clitoral head – tip. 

So, then if we go to the judgment.  In my submission, we see that they do interpret text in context and in the light of purpose, not the reverse.  I will just take your Honours to a couple of passages.  If your Honours look at pages 480 to 481, we see at some point the court engages with our point about the meaning of “mutilate”.  But what they say is actually different.  What they say - and they come back to it later at 493 - what they say at 476 is different.  They say:

context in which it is used must be of relevance and the context here is excision, infibulation or otherwise mutilation of a sensitive part of the female anatomy.

That is the correct context.  It is an analysis of the text.  It is in context.  They say the same thing at paragraph 480.  They are not running with a duality that is being put by the Crown.  If you go then to 485, there is a kind of vast overemphasis in the Crown’s submissions about what we said about applying “mutilate” to different things, but they deal with it then at 493 and our submission has to be seen as qualified and they say:

The appellants’ concession that it may be easier to mutilate a more sensitive body part is telling -

but then they go on to say that what is problematic is that his Honour was actually just looking at the definition in dictionaries and elsewhere of “female genital mutilation” as a term ‑ as a catch term, and then applying it to all of this, which is not a construction in any sense of the meaning of the words.  Then at the bottom of that paragraph, critically:

The question is what is meant by “mutilates” in a statutory provision that does not use the term “female genital mutilation” as part of the description of the offence.

So, again 495 to 497 we say are quite unexceptional.  As I say, a graze would not – it is difficult to see how a graze or a scratch could be described as mutilation or a prick.

BELL J:  Or a bruise, as I understand the prosecution. 

MR GAME:   Or a bruise, yes.  Or a minor bruise.  So then when we come to the conclusions we see at - 513 is quite an important paragraph.  The second sentence talks about the Family Law Council recommendations: 

However, that general purpose cannot extend the scope of the conduct prohibited by the actual words used in the Act. 

Then, finally – it is 519, the last sentence:

The term “or otherwise mutilates” is an umbrella term –

So they are accepting the Crown’s argument about opening something up, but it is an umbrella term to capture other forms of mutilation that are to be prohibited.  That, in my submission, is inescapably correct and the “de minimis” “to any extent” at the top of 522 cannot be correct.  So that is how we deal with that.

GAGELER J:   Mr Game, can we just look at 521, which is the focus of the Crown’s submissions?

MR GAME:   I have missed your question, your Honour.

GAGELER J:   Paragraph 521, can I just go back to that sentence that is criticised:

meaning connotes injury or damage that is more than superficial -

You would embrace that?

MR GAME:   Yes.

GAGELER J:   Is the difficulty with the remainder of the sentence?

MR GAME:   Well, not really when you understand it in the context of the other parts of the judgment where they say they accept that a cut or nick could in a particular case amount to – you have to look at it in context and I am not – one would not just read that out in any sense when one – one would stick to the definition of the – and describe the damage.  It would then be a factual question for the jury to determine whether or not that amounted to mutilate.  But superficial injury would be excluded as something that could fit that description.  A quibble about the words “irreparably damaged” is not a cause to grant special leave in this case, your Honour. 

Now, I wanted to – so, the argument about clitoris extending to the clitoral hood, they are different structures but the case was pleaded this way.  But it has to be understood in the context of the point that was being made, which was that “mutilate” involved any – because the clitoris was such a sensitive part of body, therefore any activity however minor, was mutilate. 

But then because that caused a difficulty for them because they could not say it happened to the clitoris they then said well, that includes the clitoral hood and they got their account from some evidence of Dr X who actually could not describe what it was that had happened to her.  So we involved a change of case and then – but it kind of undercuts their central argument and that is why it is brought forward.  But as a matter of construction what the court said is correct.  It was the way the Crown ran their case. 

So finally I wanted to say this, your Honours.  It is on the question of ‑ the Crown quibbles with this, but the court did deal with the question on whether or not there would be a retrial on the alternative count as to whether or not there was evidence of a nick or cut that could go to the jury on the basis of damage to the clitoris or any other part of the genitalia. 

Sorry, I should say also that if the Crown’s submission is correct then there was no reason to say any of those things in the provision, including the identification of clitoris, labia majora, labia minora because you would just say “female genitalia” and catch everything that could possibly come within them.  That specificity also can be seen as something that ties “mutilate” to those ideas because it is something – mutilates something specific, it is not mutilates something general.  So then the court does - they say at 615:

We turn first to consider whether there is available evidence –

So the “assault occasioning” ended up being something that did not fit – it was a nick or cut to somewhere else.  But they assess the evidence, they go through C1’s evidence and then they say at 621:

The high point of the evidence –

and then 625:

The evidence of C1 –

The light has come on, but if I could just finish this little bit.  C1, they are disposing of that – when they say:

she thought . . . there being no lasting pain, no blood, nor any other evidence –

They are disposing of it as they dispose of C2 and we see that at 628.  That is what - I cannot go on but if you just go to 638 one can see that they engaged in a discretionary exercise about retrial but they are saying that there is – and 634 is not a qualification of that.  So the most – this is many years later, there was no evidence of a nick or cut.  A retrial on that question, in my submission, would be quite inappropriate and that is another powerful reason to refuse special leave.

BELL J:   Thank you, Mr Game.  Mr Dhanji.

MR DHANJI:   Thank you, your Honour.  Your Honours, we unsurprisingly adopt what has been said on behalf of Ms Magennis.  But quite apart from questions as to the prospects of success, which we stress are limited, there are powerful reasons why this Court would not grant leave to the applicant to agitate the acquittals granted the respondents.

Now, it is first of all important to bear in mind what is sought here is a retrial, an order for a retrial.  This is in circumstances where the respondents, A2 and Magennis, have in fact served the entirety of their sentences.  Those sentences expired in September 2017.  The respondent, Vaziri, served three months in custody out of an 11 month non‑parole period and then was granted bail and spent a period on bail of about 13 months under conditions that were actually broadly consistent with the home detention orders that had been given to the principal offenders, Mr Vaziri being an accessory after the fact.

But more than the concern in relation to the respondents is in fact a question that arises with respect to, in reality, all the participants in this trial, most particularly the complainants themselves and as your Honours will appreciate, they were obviously young children at the time that the investigation arose. 

The JIRT interview was conducted in August 2012 when the complainants were respectively just short of nine and just short of seven years of age.  By the time of trial, when they were required to give evidence, they had turned 12 and 10, the trial taking place across September and October 2015.  Indeed, I think they had their birthdays in the course of that time.  They are now, as I calculate, aged 15 and 13 and find themselves in circumstances where proceedings remain on foot with the prospect of them, if special leave is granted, the uncertainty continuing, and if a new trial is ultimately ordered the prospect of again giving evidence in criminal proceedings, most particularly in the case of – it is the fact that that would involve giving evidence in criminal proceedings against their mother.

BELL J:   Yes.

MR DHANJI:   Now, that is a powerful reason to refuse special leave.  But, even when one comes to issues such as the questions of general importance it should also be noted that it is not suggested that there are a raft of prosecutions in the wings turning on the fine distinction that is sought to be agitated here.  That is in the context of this legislation having been enacted in 1994.  The circumstance arises where there is – this was alluded to by the Court of Criminal Appeal – ample opportunity for the legislature to provide clarity if it chooses to do so, but in terms of this Court’s involvement, in our submission, there is no pressing concern.

The concerns in relation to the grant of special leave go beyond those because factually it is also highly problematic.  Your Honours will be aware that new evidence was admitted on the appeal in the Court of Criminal Appeal and the court’s decision to admit that evidence has not been the subject of challenge.  What that new evidence established is that on examination which took place subsequent to trial, the clitoral head of each of the complainants was visible.  What that meant was that one of the scenarios put forward by the Crown at trial, that is, that the clitoral head which at that time is not visible, was not visible because of excision, was no longer available.

But it goes further than that because it also goes to whether anything even less than incision could have occurred with respect to the clitoral head.  Mr Game touched on this.  You have areas of different sensitivity, and the clitoral head is a particularly sensitive area, so the nature of what will be required to constitute female genital mutilation in the context of the clitoral head may be different to that with respect to the prepuce. 

Now, in that regard, the applicant says – your Honours do not need to turn it up but it is at application book 743 – in reply that this Court is not in a position to infer that Ms Magennis could not have retracted the clitoral hood to carry out the ceremony in the manner alleged by the Crown; in other words, they seek to put forward the idea that despite the fact that it was not visible it could still have been accessed.

Even putting to one side the difficulty that arises immediately with respect to onus and burden of proof – that is, the submission being one that the court could not infer that she could not have done something as opposed to the Crown’s ability to establish that she had the capacity to do so – the evidence is such that it would not allow any such inference to be drawn.  The reason for that is this, and if I can take your Honours to application book 409, your Honours will see at paragraph 227 there is an extract of some of the evidence of Dr Marks, an expert called by the Crown, and she gives the analogy of a little boy who has not been circumcised.  I will not read all of that.  She refers to pulling it back, and then towards the end of that paragraph she says:

So in a little girl, the structures are smaller and the head of the clitoris is smaller, but it has the – the skin that is over it is attached to it quite firmly, and can make it difficult to see and the only way then would be to forcibly pull that skin back.

Similarly, or in a similar vein, at 442 of the book ‑ again this is a reference to evidence of Dr Marks ‑ he actually says in the extract set out after paragraph 339:

to actually move the clitoral hood so as to try and see better, that would be painful, so that is not something that you can do, but [C1] was cooperative.  It was possible to look at her.

BELL J:   Mr Dhanji, accepting for the purposes of argument that the fresh evidence adduced on appeal may make the prosecution on any retrial, were that the course adopted, more difficult, I am just not quite sure where this is taking us.  You have developed reasons why, in the exercise of discretion, it would be inappropriate, so you say, for an order for a retrial, but I am not quite sure how far this is taking you.

MR DHANJI:   The point I seek to make is this.  Crown evidence at the first trial, and particularly the evidence as to the sensitivity of the clitoral head and the potential for damage as a result of interference with the clitoral head, was obviously predicated on at least the possibility that interference had actually occurred to the clitoral head.  Now, that goes by the wayside and indeed that has to be seen in the context of the way the Crown brought its case.  The Crown case was in fact that this process, described as khatna – it is set out at application book 354:

involves causing injury to a young girl’s clitoral area by nicking or cutting the skin, and that, by damaging this area of very dense nerve tissue, the procedure is intended to suppress the development of the girl’s sexuality as she attains puberty.

So the Crown case, as it was brought before the Supreme Court, was one that involved this idea that there was this intentional interference, and that aspect of the case has gone.  The significance of that is it brings ‑ ‑ ‑

BELL J:    I think there may be some controversy.  I may have misunderstood it, but I understood that the Crown does not concede that it was not possible that there could have been some interference with the clitoris as distinct from the prepuce.  Now, the merits of that probably are not usefully explored on this special leave application.

MR DHANJI:   The two aspects of the evidence that I took your Honours to were to establish that to actually retract the clitoral hood at the time when it was unexposed – and Professor Grover says something very similar – would cause pain.  That is entirely inconsistent with ‑ because one needs to put that against evidence of the complainant.  The complainant’s most coherent account was C1’s, of course.  In relation to C1, her description of her experience where one had what could really only be described as transitory pain was inconsistent with there being the kind of process described by the experts that would involve this discomfort and Professor Grover says that a girl would tend to actually pull her legs together and it would actually be something of a significant interference.

All I am saying is – and that is perhaps using up a lot of my 20 minutes – that you have an account given by the complainant that is simply not consistent with that possibility.  So that brings one back to this idea of could one get to mutilation by the route of what can only be, on the experts, a very superficial interference with the prepuce and that one is in different territory to the territory one would be in with respect to the clitoral head.  That is that point.

When one comes to that question, could one get to “mutilate” or “otherwise mutilates” within section 45 as a result of this interference with the prepuce that of course requires the Crown construction, which is, in effect, the importing into the section of female genital mutilation as a concept. Then one goes from the definitional constructional exercise of section 45 to a construction exercise in relation to the words “female genital mutilation”.

That ultimately is not, in our submission, a helpful exercise because it is a little bit like what is described with the dictionary approach, where one goes to the dictionary and one finds some words and then one goes to the dictionary in relation to those words and then you expand outwards.  So ultimately what one has – and if I could just do a straight ‑ ‑ ‑

EDELMAN J:   Do you accept that there is a constructional choice available in relation to the section of the word “mutilates”?

MR DHANJI:  No, your Honour.

EDELMAN J:   No constructional choice?

MR DHANJI:   One has to construe ‑ it depends I suppose precisely what it means.  If one is simply saying a constructional choice as between construing the word “mutilates” and a constructional choice which says that it is either the word “mutilates” or the words “female genital mutilation”, then I do not accept that it is a choice ‑ ‑ ‑

EDELMAN J:   No, a constructional choice between what the word “mutilates” might mean in its common parlance divorced from the context of female genital mutilation, which is a much higher threshold than any ordinary injury and, on the other hand, what the word “mutilates” means in its common connotation in female genital mutilation.

MR DHANJI: Yes. We do not accept that there is a constructional choice, but in doing so we make the concession that we made in the Court of Criminal Appeal and that is that, in understanding the term “mutilates” in section 45, in giving it its meaning, unexpanded by some foreign or outside concept, one is nonetheless having regard to the actual subject matter and that is why we say the Court of Criminal Appeal was quite correct to say a nick or a cut to the clitoral head, for example, may amount to mutilation.

Can I put it this way?  There is nothing unorthodox about an application in a criminal case of the onus and standard of proof and I think the point has been made in the submissions that insofar as that can create difficulties Parliament in other provisions has sometimes resorted to the use of deeming provisions.

Can I say this?  In terms of the problem with going to the extrinsic material and in particular to the Family Law Council report – this is at application book 451 at paragraph 378 and this is where one comes to this issue of finding a meaning through another term and then trying to find the meaning of that term as it is used – what is said in the Family Law Council report, which would appear as the high point of what the applicant would seek to rely upon, is that:

Female genital mutilation ‘is the collective name given to several different traditional practices that involve the cutting of female genitals.’  It can involve any one of 4 procedures –

So it is talking about four procedures, although it goes on to say that there is perhaps concern in relation to being too precise about breaking this down.  At 379, their Honours go on to note that:

the Report noted at [2.02] that the term ‘female genital mutilation’ was used in the Report as embracing “all types of the practice where tissue damage results; for example, damage manifested by bruising, contusion or incision” and that ‑

This was raised by your Honour Justice Gageler – that in fact begs the antecedent question, all types of the practice:  what are we talking about when we are talking about the practice?  Insofar as they are talking about the practice, it is the four practices – and they are set out over the page, on 452 of the application book.  That refers there to:

Ritualised circumcision, this being the “first, and least severe form”, where the procedure may be wholly ritualised or where the clitoris is scraped or nicked -

That is a sort of summation.  It might be noted at that point that the full part of that paragraph goes on to say, at application book 63 – your Honours do not need to turn it up – is that:

This causes bleeding and may result in little mutilation or long term damage.

But it is noteworthy that even where they are talking about the procedure, not quite wholly ritualised but just scraped or nicked, they are still talking about a procedure which causes bleeding.

EDELMAN J:   They do open with the paragraph saying that those four categories or procedures have been described as involving a distinction that:

is irrelevant since it depends on the sharpness of the instrument used, and the struggling of the child ‑ ‑ ‑

MR DHANJI:   That is right.  That is a note of caution to say there is a concern that that is going to perhaps affect the outcome, and it may well be that somebody who is trying to engage in a purely ritualised exercise will, as a result of imprecision or struggling of the child, find themselves committing an offence that actually comes within the section because it may actually result in even, as I say, a minor cut to the clitoral head.

But importantly, in the point that I want to develop is when one goes to item 2, clitoral circumcision generally called simply “circumcision” or has also been called “sunna”, clitoral circumcision involves the removal of the clitoral prepuce and what is important about the way the report deals with that is it is dealing about the prepuce separately to the clitoris, which is described in ‑ ‑ ‑

BELL J:   Mr Dhanji, I think there has been quite a degree of overlap between the division that you and Mr Game agreed upon.

MR DHANJI:   That is so, and I appreciate the orange light is on, so you will see the back of me, but I did just want to make that point.  With respect, it was not a point made by Mr Game and it is simply to say that you have this distinction that is drawn between these first two categories in the Family Law Council report.  In the second category, there is reference to the prepuce, suggesting that in the first category one is talking about the clitoris, not the prepuce and the importance of that is that that indeed would rule out what on the facts is said to have happened here.

Ultimately, what that means is that – and this is the problem I started with – you end up on this sort of constructional approach to the Family Law Council report and you are a long way removed from the actual provision.  That is highly problematic, but even when you go down that path you do not inexorably arrive at the point where what happened in relation to this or what at the high point happened in this case was said to be covered by the section. 

I will sit down now saying this, and this is directly an overlap, because what actually happened in this case is ultimately a situation where the medical evidence did not establish any injury, and your Honours have that at page 510 and there is a neat summary at paragraph 590, and then that sits with the evidence most coherently of C1 in the passage that Mr Game took your Honours to at 521, paragraph 625 – that is, the evidence of C1

that she thought she had been cut or pinched – is to be viewed in the context of there being no lasting pain, no blood or any other evidence of injury.  I make the obvious point she did not see it and the evidence itself, when one construes it, would not support something that could possibly amount to mutilation.  May it please the Court.

BELL J:   Thank you.  Anything in reply, Mr Kell?

MR KELL:   Thank you, your Honour.  First, my friend made reference again to application book 494, which is the judgment paragraph 522, which his Honour Justice Gageler referred to where there is reference to the error in the direction.  If one goes to the direction of the judge to see the context, it is at volume 1 of the application book at page 100, about halfway down the page.  This is the summing‑up, at line 32:

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.

So the distinction there is the contention that was put to the contrary.  His Honour is directing the jury that one does not need to find serious injury, so where there is reference of injury to any extent it is not a de minimus; it is that one needs to find injury but one does not need to find serious injury. 

That flows on to the second point which I would put in reply, that on the question of what a future direction will be provided to juries as a consequence of this judgment if left uncorrected by this Court, there can be no doubt about it. If one looks at paragraph 586 of the judgment, it sets out what the test now is for the term “mutilates” under section 45 and the guidance that would be provided. The directions would be to the effect – and I am going to the second sentence:

that a cut or nick to the clitoris could well amount to mutilation in some circumstances -

That must be the case depending on the thrust and the savagery of the cut, but:

the medical evidence would need to establish that there had been injury or damage which rendered the clitoris imperfect or irreparably damaged in some way.  We have concluded the in the absence of any medical evidence of such injury or damage, an offence contrary . . . could not be established.

That will be the direction for future juries if this Court is not persuaded to intervene.

BELL J:   Yes.

MR KELL:   That is what we submit will be the direction that will be resolved.  My friend made reference to – that there is no evidence of a nick or cut and this is seemingly in the context of why there would not be a retrial.  Therefore, your Honours would not be persuaded to grant special leave.  In our submission, there is strong powerful evidence of injury.  It is set out in our submissions and in the judgment.  It includes evidence from C1 given to the effect that she was cut, that she saw Magennis with scissors.  There is evidence of A2 in a conversation indicating that within this practice they cut – in response to a question as to whether they cut a lot or cut the whole clitoris off – “No, but they cut.”

BELL J:   Mr Kell, there are some other considerations that are said to provide powerful reasons why it would be inappropriate to grant special leave and, in the event the appeal succeeded, to contemplate a retrial, having regard to the circumstance that would involve these young girls in again being required to give evidence in a criminal proceeding against their mother in circumstances in which each of the respondents has effectively served the sentence imposed.

MR KELL:   Yes, and we accept that those are two discretionary factors, but weighed against that is the realisation of the importance of the question of law arising.  The acceptance, of course, of the sentence means that in terms of a sentence there is not going to be any greater sentence imposed but there is a profound deterrent effect of convictions for these offences on a recognition of the proper meaning of the term and those factors weigh in the balance.  Of course, at this stage of the inquiry, what we need to persuade your Honours is only that a retrial is a possible order that may be made and even then, of course, a retrial is permissive.

BELL J:   Yes.

MR KELL:   So there are factors down the chain.  But we submit that certainly there is evidence, which we have indicated in the submissions, indicating that these offences can be made out, and that there is the distinct real possibility of an order for a retrial being made; and that the discretionary factors raised against do not outweigh the importance of the matters in ‑ ‑ ‑

BELL J:   Yes.

MR KELL:   We submit that it is an appropriate case for a grant of special leave.

BELL J:   Thank you, Mr Kell.  The Court will adjourn briefly to consider the future course of the matter.

AT 12.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.59 PM:

BELL J:   There will be a grant of special leave in each of these applications.

MR GAME:   Your Honour, can I just say one thing?

BELL J:   Yes.

MR GAME:   Because it is a test case, in effect, we submit it should be conditional on paying our costs.

BELL J:   Mr Kell?

MR KELL:   Your Honour, we submit it is not a test case in the usual sense, it is a criminal matter; and that your Honour should not impose that condition.

BELL J:   Yes.  We are not disposed to conditioning the grant of leave on those terms, Mr Game.  Mr Kell, what is the likely estimate?

MR KELL:   It depends on the extent to which the two respondents adopt one another’s arguments and contentions.  I would have thought if there is that cross‑adoption, then it could be done within a day.  If there needed to be caution because of two respondents, one to two days.  But I would hope that it could be done within a day.

BELL J:   Yes.  Mr Game.

MR GAME:   A day would be fine, we think.

BELL J:   A day will be fine, yes, very well.  Can I invite the parties to obtain the directions from the Registry, and as always, to comply with them.  The Court will adjourn until 2.00 pm.

AT 1.02 PM THE MATTERS WERE CONCLUDED