Citation: R v A2; R v KM; R v Vaziri (No. 3) [2015] NSWSC 1264
Court: Supreme Court of New South Wales
Date: 1 September 2015
Judge(s): Johnson J
Background
Three accused persons faced trial on charges arising from the alleged mutilation of the clitoris of two young girls, referred to as C1 and C2, contrary to s 45(1)(a) of the Crimes Act 1900 (NSW). The Crown alleged that one accused carried out the act on each child in the presence of the children's mother, and that the procedure was performed as part of a practice known as "Khatna" or female circumcision within the Dawoodi Bohra Muslim community. A third accused was alleged to have been an accessory after the fact.
In advance of the trial, the Crown sought to call Dr Rehana Ghadially as an expert witness. Dr Ghadially, then aged 70, held tertiary qualifications in psychology and science, was born into the Dawoodi Bohra community, had herself undergone Khatna as a child, and had conducted specific research on the practice in 1990 and 1991, resulting in a published academic article. The defence objected to her evidence on three alternative grounds.
Legal Issues
- Whether Dr Ghadially's proposed evidence was relevant under ss 55 and 56 of the Evidence Act 1995 (NSW)
- Whether the evidence constituted admissible opinion evidence under s 79 of the Evidence Act 1995, given the requirement that it be based on specialised knowledge derived from training, study or experience
- Whether, even if otherwise admissible, the evidence ought to be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Relevance. Johnson J held that the evidence was plainly relevant under s 55 of the Evidence Act 1995. The key factual dispute at trial was whether what KM did to C1 and C2 constituted female genital mutilation in the form charged, and specifically whether it was performed as part of the Khatna procedure. Dr Ghadially's proposed evidence about the nature, practice, and context of Khatna within the Dawoodi Bohra community could rationally affect the jury's assessment of that probability, satisfying the broad and permissive test in s 55.
Admissibility as opinion evidence. The court was satisfied that Dr Ghadially possessed specialised knowledge within the meaning of s 79, derived from a combination of her personal experience as a member of the Dawoodi Bohra community since childhood, her firsthand experience of Khatna, and her dedicated academic research into the practice. Johnson J applied the framework from cases including HG v The Queen and Honeysett v The Queen, which require that an expert's opinion be wholly or substantially based on identified specialised knowledge rather than on speculation or impression. The court found that Dr Ghadially's proposed evidence met that standard across the seven topics identified by the Crown, including the nature of the Khatna procedure, the profile of a circumciser, and the cultural meaning of relevant terminology.
Exclusion under s 137. Johnson J rejected the argument that the evidence should be excluded as unfairly prejudicial. The court distinguished between evidence that is merely adverse to an accused and evidence that carries a risk of irrational, emotional, or illogical misuse by a jury. The evidence of Dr Ghadially would assist the jury in understanding matters outside ordinary experience, namely the practices and norms of the Dawoodi Bohra community. The accused also retained the ability to challenge her evidence in cross-examination. No danger of unfair prejudice sufficient to warrant exclusion was established.
Orders Made
• Evidence of Dr Ghadially is admitted and may be adduced by the Crown at trial
• Dr Ghadially may give evidence that Khatna means female or male circumcision
• Other terms identified may be subject to evidence from Dr Ghadially if otherwise relevant to the trial
• The s.137 objection is dismissed
Key Takeaways
- Under s 55 of the Evidence Act 1995, relevance requires only that evidence could rationally affect the probability of a fact in issue, directly or indirectly. The test is broad, and courts approach it by taking the proposed evidence at its highest.
- A witness may qualify as an expert under s 79 on the basis of lived experience and personal research, not only formal academic or professional credentials. Dr Ghadially's combination of community membership, personal experience of the practice, and published research was sufficient to establish the requisite specialised knowledge.
- Section 137 of the Evidence Act 1995 does not exclude evidence merely because it strengthens the Crown's case. The provision is engaged only where there is a real risk that a jury will misuse the evidence in an irrational, emotional, or illogical way, or give it more weight than it deserves.
- Expert evidence about cultural and religious practices within a specific community can be admissible where it assists a jury to understand matters beyond ordinary experience, and where it is grounded in genuine specialised knowledge rather than bare assertion.
- The availability of cross-examination as a means of testing contested expert evidence is a relevant consideration in resisting exclusion under s 137.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 45(1)(a)
- Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 137
Cases
- BJS v R [2013] NSWCCA 123; 231 A Crim R 537
- Evans v The Queen [2007] HCA 59; 235 CLR 521
- Harrington-Smith v State of Western Australia [2003] FCA 893; 130 FCR 424
- HG v The Queen [1999] HCA 2; 197 CLR 414
- Honeysett v The Queen [2014] HCA 29; 253 CLR 122
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Le [2000] NSWCCA 49
- R v Pham [2005] NSWCCA 9
- R v Sood [2007] NSWCCA 214
- R v Suteski [2002] NSWCCA 509
- R v Tang [2006] NSWCCA 167; 65 NSWLR 681
- Smith v The Queen [2001] HCA 50; 206 CLR 650
- Tuite v R [2015] VSCA 148