AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 10 August 2018

A2 v R; Magennis v R; Vaziri v R

[2018] NSWCCA 174

Sexual offences
CRIME CONVICTION APPEAL FEMALE GENITAL MUTILATION APPEAL ALLOWED EVIDENCE WHETHER NEW EVIDENCE RELEVANT MISCARRIAGE OF JUSTICE

Citation: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 10 August 2018
Judges: Hoeben CJ at CL; Ward JA; Adams J

Background

Two appellants (referred to as A2 and Magennis) were convicted of female genital mutilation (FGM) contrary to s 45(1)(a) of the Crimes Act 1900 (NSW), in relation to two complainants (C1 and C2). A third appellant, Vaziri, was convicted as an accessory to those offences. The alleged procedure was said to have been performed within a religious community context.

The prosecution case relied heavily on medical evidence and intercepted communications. Two child complainants gave evidence, one via a recorded interview conducted when she was six years old and played at trial when she was nine. Expert medical evidence was central to whether the physical examinations of C1 and C2 were consistent with mutilation having occurred.

After conviction, the appellants sought leave to adduce new expert evidence on appeal. That application, and a comprehensive set of grounds challenging various aspects of the trial, came before the Court of Criminal Appeal.

  • Whether leave should be granted to adduce new expert evidence on appeal, and whether that evidence needed to be "fresh" (not merely newly available)
  • Whether the new evidence demonstrated a miscarriage of justice, and whether the verdicts were unreasonable in light of it
  • The proper statutory construction of "otherwise mutilates" and "clitoris" in s 45(1)(a) of the Crimes Act 1900 (NSW)
  • Whether expert evidence from a witness referred to as "Dr X" was admissible, including under s 79 of the Evidence Act 1995 (NSW) and the discretionary exclusion provisions
  • Whether the complainant C2, who had a mild intellectual disability and was interviewed at age six, was competent to give sworn evidence at trial
  • Whether the trial judge's handling of cross-examination, consciousness of guilt directions, tendency and coincidence evidence, the Crown's closing address, and the summing-up gave rise to appealable error
  • Whether Vaziri's sentence should be disturbed on parity grounds (ultimately not determined)

Decision

New evidence and miscarriage of justice: The Court granted leave to admit new expert evidence despite it not being strictly "fresh" in the traditional sense, holding that the test for admission on appeal does not require the evidence to have been unavailable at trial, provided it is relevant to a potential miscarriage of justice. The new evidence, which was undisputed, showed the tip of the clitoral head was visible in both complainants. The Court found this created a situation where no jury could be satisfied beyond reasonable doubt that the clitoris of either complainant had been "mutilated" within the meaning of s 45(1)(a). This conclusion was sufficient to allow the appeals and enter verdicts of acquittal.

Statutory construction of s 45(1)(a): The Court undertook a detailed analysis of the meaning of "otherwise mutilates" in s 45(1)(a) and the anatomical scope of "clitoris." The Court considered the ordinary meaning of "mutilates," the legislative history of the FGM provisions (including the 1994 and 2014 amending Acts), and permissible extrinsic materials. The Court's construction informed the analysis of whether the verdicts were sustainable, feeding directly into the unreasonable verdict ground.

Evidence of Dr X: The Court found that some opinions expressed by Dr X did not derive from specialised knowledge as required by s 79 of the Evidence Act 1995 (NSW) and were therefore inadmissible. Additionally, the probative value of certain opinions did not outweigh their potential prejudicial effect, and the trial judge should have excluded them under the discretionary exclusion provisions. However, Dr X's evidence was held to be relevant, and only specific opinions were found to have been wrongly admitted.

C2's competence and other evidentiary issues: The Court addressed the timing of the competence assessment for C2 under s 13 of the Evidence Act 1995 (NSW), finding she was not competent to give sworn evidence. The Court also addressed the trial judge's two-phase approach to cross-examination, tendency and coincidence evidence directions, the Crown's closing address, and the summing-up, finding no error warranting appellate intervention on those grounds. The Court declined to order a new trial, including on the alternate assault counts, given the strength of the miscarriage of justice finding on the principal charges.

Orders Made

  • Appeal against conviction allowed (for each appellant)
  • Conviction quashed (for each appellant)
  • Verdict of acquittal entered on all counts (for each appellant)

Key Takeaways

  • New expert evidence on appeal does not necessarily need to meet the strict "freshness" requirement; it is sufficient that the evidence is relevant to demonstrating a potential miscarriage of justice.
  • Undisputed post-trial medical evidence showing the visibility of the clitoral head in both complainants meant no jury, properly directed, could be satisfied beyond reasonable doubt that "mutilation" within s 45(1)(a) had occurred.
  • Under s 79 of the Evidence Act 1995 (NSW), expert opinion evidence is inadmissible to the extent that specific opinions are not derived from the witness's specialised knowledge; admissibility must be assessed opinion by opinion, not merely by reference to the expert's general qualifications.
  • Competence of a child witness under s 13 of the Evidence Act 1995 (NSW) falls to be assessed at the time of trial, not solely by reference to the child's capacity at the time of an earlier recorded interview; C2, who had a mild intellectual disability, was found not competent to give sworn evidence.
  • Where a conviction appeal succeeds on the ground of miscarriage of justice due to new evidence, the Court of Criminal Appeal may enter verdicts of acquittal without ordering a new trial, including on alternate counts, where the evidentiary foundation for a retrial is fundamentally undermined.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 45, 45A, 59
- Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW)
- Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW)
- Evidence Act 1995 (NSW), ss 13, 55, 79, 97, 98, 135, 137, 165A
- Criminal Procedure Act 1986 (NSW), ss 306M, 306U, 306Y
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 7(2), 8
- Criminal Appeal Rules (NSW), r 4
- Interpretation Act 1987 (NSW), ss 33, 34, 35

Key Cases:
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9
- Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3
- Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- AL v Regina [2017] NSWCCA 34