R v A2; R v Magennis; R v Vaziri (No. 15)

[2015] NSWSC 1545

Supreme Court

New South Wales

Medium Neutral Citation:	R v A2; R v Magennis; R v Vaziri (No. 15) [2015] NSWSC 1545
Hearing dates:	15 October 2015
Date of orders:	15 October 2015
Decision date:	15 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Evidence admitted of the Accused Magennis’ registration and employment history as a nurse and midwife in New South Wales.
Catchwords:	CRIMINAL LAW - trial for female genital mutilation and associated charges - Accused Magennis who allegedly performed procedures on two girls was a nurse and midwife - Crown tenders details of Accused Magennis’ registration and employment history as nurse and midwife in New South Wales - objection as to relevance - material relevant - evidence admitted
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264 R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) A2 (Accused) Kubra Magennis (Accused) Shabbir Mohammedbhai Vaziri (Accused)
Representation:	Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused Kubra Magennis)   Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused)
File Number(s):	2012/280081 (A2)2012/285455 (Kubra Magennis)2012/285639 (Vaziri)
Publication restriction:	---

Judgment (on objection by the accused magennis to tender of evidence concerning the accused magennis’ registration and employment history in new south wales as a nurse and midwife - t1316)

1. JOHNSON J: The Crown seeks to adduce evidence in this trial, against the Accused Magennis, with respect to particulars of her registration as a nurse and midwife in New South Wales and evidence, such as it is, of her places of employment over a period which spanned 1998 to 2003.

2. Objection is taken by the Accused Magennis’ counsel to the tender of this material upon the basis of relevance.

3. The Crown contends that the material is relevant for two purposes.

4. Firstly, it is submitted that the work history of the Accused Magennis, and her registration as a nurse and midwife, is relevant to the charges of female genital mutilation (“FGM”) brought against her in that they point to some training and skills in dealing with girls in the genital area. The Crown alleges that FGM occurred here by way of “khatna” which, on the Crown case, involved injury to each girl.

5. Secondly, the Crown seeks to point to a regular period of registration of the Accused Magennis as a nurse and midwife, and her regular employment in the New South Wales health system, in light of the general evidence of Ms Vivienne Strong and Ms Linda George concerning the education programme concerning FGM which was undertaken for health professionals (including nurses and midwives) in New South Wales from 1998.

6. Although the Crown cannot point to any direct evidence that the Accused Magennis attended any seminar or lecture with respect to FGM as provided to health professionals, the Crown submits that an inference is available that through that program, available over a number of years, the subject matter of the material would have come to the Accused Magennis’ attention.

7. At the outset, I should observe that there is evidence before the jury from Detective Sergeant Stek that the Accused Magennis is a registered nurse and midwife (T259, T293). I touched upon that evidence and other material relied upon by the Crown, in the course of R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427, which concerned an objection to the tender of evidence from Ms Strong and Ms George about the New South Wales FGM Education Program. In that judgment, at [8], I referred to material, before me on the voir dire, some of which is now tendered for the purpose of the trial.

8. I take into account the observations I made in R v A2; R v Magennis; R v Vaziri (No. 7) as to the suggested relevance and utility of this material. I note that since that judgment was delivered on 28 September 2015, Ms Strong and Ms George have actually given evidence and it is the fact that there is no direct evidence demonstrating that the Accused Magennis attended a FGM lecture or seminar.

9. The test of relevance under s.55 Evidence Act 1995 involves a relatively low threshold. In this respect, I refer to R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264 at [13]ff. To be admissible as relevant evidence, the evidence is to be considered upon the basis that if it were accepted by the jury, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

10. It is submitted by Mr Bouveng that the bare information already in evidence from Detective Sergeant Stek is sufficient, in that there is some evidence of the registration of the Accused Magennis as a nurse and midwife so that that fact is already before the jury.

11. With respect to the first basis relied upon by the Crown, I am satisfied that evidence of what is the most complete picture of the registration history as a nurse and midwife of the Accused Magennis, and her work history, is relevant to a fact in issue in this trial.

12. As I have observed in earlier judgments, the central contest in the trial is whether what occurred here was the performance of a FGM procedure causing injury to some extent to each girl or, on the competing version as put for the Accused persons, whether this was a symbolic ceremony involving the laying on of a metal object without injury: R v A2; R v Magennis; R v Vaziri (No. 7) at [21]-[22].

13. The fact that the person who was undertaking the particular acts was a trained and experienced nurse and midwife may bear upon that question in the mind of the jury. A bare symbolic procedure on the one hand, it might be thought, could be performed by anyone. Something involving a measure of interference with the female genital area may, it might be thought, involve and be assisted by some skill. I mention these things not for the purpose of expressing any view, but to pose at least an available use of this evidence.

14. In my view, the length of experience and registration and the places at which the Accused Magennis worked are relevant.

15. The second aspect relied upon by the Crown involves the question as to whether an inference might be drawn by the jury (being a matter for the jury and not me), as to whether the relatively intensive education program undertaken as part of the New South Wales FGM Education Program, could have come to the attention of the Accused Magennis, even if she was not on a list of attendees. The fact that she had worked, it would seem, in the New South Wales public health system, from time to time and in different places, may allow an inference to be drawn that that information came to her attention, even if the Crown cannot place her at a seminar or lecture on the topic. Once again, in making that statement I am not making any finding, I am merely pointing to a way in which this evidence could assist the jury.

16. Of course, the jury ultimately will be considering the issues in the trial, by reference to all the evidence. The issue for the moment involves the relatively undemanding test of relevance in ss.55 and 56.

17. Insofar as a submission was made by Mr Bouveng that some of this evidence is very generalised, that it places the Accused Magennis at a particular hospital and at a particular time but without any detailed information about the nature of her employment at different hospitals, I note that the inference is available, supported to an extent by direct evidence with respect to Liverpool Hospital, that the Accused Magennis was employed as a nurse. Her qualifications as a nurse and midwife, and her continuing registration and re-registration as a nurse and midwife over a number of years, may permit an inference to be drawn that that is precisely the work that she was undertaking.

18. Accordingly, I propose to admit the evidence which the Crown seeks to adduce with respect to the registration and employment history of the Accused Magennis.

19. Having said that, it is highly desirable that this evidence be adduced in some straightforward and coherent fashion. In making this ruling, I am not indicating that all the documents in MFI70 ought be admitted in this form.

20. I trust that there may be some simpler way of adducing evidence on these issues, but I leave that matter to counsel.

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Decision last updated: 19 February 2016