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Court of Criminal Appeal 7 February 2020

A2 v R; Magennis v R; Vaziri v R

[2020] NSWCCA 7

Sexual offences

Citation: A2 v R; Magennis v R; Vaziri v R [2020] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 7 February 2020
Judges: Hoeben CJ at CL; Ward JA; Adams J

Background

Three appellants had been convicted of offences relating to female genital mutilation (FGM) under s 45(1)(a) of the Crimes Act 1900 (NSW). In August 2018, the Court of Criminal Appeal quashed those convictions and entered verdicts of acquittal, having upheld several grounds of appeal including concerns about expert evidence, witness competency, and fresh evidence showing that no removal of the tip of the clitoris had in fact occurred.

The Crown appealed to the High Court. In October 2019, the High Court allowed the Crown's appeals and remitted the matters back to the Court of Criminal Appeal. The remittal was limited to one remaining ground: whether the jury's verdicts were unreasonable or unsupported by the evidence, to be assessed in light of the High Court's authoritative construction of s 45(1)(a).

Following remittal, the appellants abandoned the unreasonable verdict ground. The sole question remaining was therefore whether the Court should order a new trial or exercise its discretion under s 8(1) of the Criminal Appeal Act 1912 (NSW) to decline to do so.

  • Whether, following the appellants' abandonment of the unreasonable verdict ground and the High Court's correction of the construction of s 45(1)(a), a new trial ought to be ordered
  • How to exercise the broad discretion under s 8(1) of the Criminal Appeal Act 1912 (NSW), having regard to the miscarriage of justice established at the earlier hearing and all relevant circumstances
  • Whether the new trial order, if made, should be confined to the primary s 45(1) counts or should also extend to the alternate counts of assault occasioning actual bodily harm

Decision

The Court confirmed that a potential miscarriage of justice had been established at the earlier hearing. The key basis was fresh evidence demonstrating that the tip of the clitoris or clitoral glans had not been removed from either complainant, which eliminated one explanation available to the jury at trial that had supported a finding of guilt.

With the unreasonable verdict ground abandoned, the Court turned to whether a new trial was the appropriate remedy. Under s 8 of the Criminal Appeal Act, a new trial may be ordered where a miscarriage of justice has occurred and can more adequately be remedied by a new trial than by any other available order. The Court acknowledged competing considerations: the appellants faced the prospect of a lengthy second trial and attendant stress, and the earlier acquittals had already been in place.

However, the Court weighed the public interest in the proper administration of justice most heavily. It found no basis to conclude that a retrial would be unfair to the appellants, and noted that the prosecution had not deliberately presented the original case on an erroneous basis. The disagreement over the proper construction of s 45(1)(a) had itself been genuine, as evidenced by the High Court's non-unanimous decision. Given the seriousness of the legislation's subject matter, the Court concluded that a new trial was the appropriate remedy.

On the alternate counts of assault occasioning actual bodily harm, the Court noted it had previously found the Crown's basis for those counts to be unclear. Rather than confine the new trial to the primary counts, the Court left to prosecutorial discretion whether to pursue the alternate counts alongside the retrial on the s 45(1) charges.

Orders Made

  • The appeal against conviction is confirmed as allowed and the convictions quashed.
  • A new trial of each appellant is ordered, having regard to the proper construction of s 45(1)(a) of the Crimes Act 1900 (NSW).
  • The matter is to be listed before the Arraignments List Judge on 6 March 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed that once a miscarriage of justice is established, s 8(1) of the Criminal Appeal Act 1912 (NSW) confers a broad discretion as to whether to order a new trial or make some other order, including entering an acquittal.
  • Public interest in the proper administration of justice is a weighty factor in the new trial discretion, particularly where the subject matter of the legislation addresses serious harm and where the prosecution cannot be said to have acted improperly.
  • Abandonment of an unreasonable verdict ground following a High Court remittal does not automatically lead to acquittal; the court still exercises its discretion by reference to all remaining grounds already upheld.
  • Where a prosecution pursued alternate counts on an unclear basis, the Court of Criminal Appeal left the decision whether to pursue those counts on retrial to prosecutorial discretion rather than confining the new trial order.
  • Genuine legal uncertainty about the construction of a statutory provision, including disagreement within the High Court itself, is a relevant consideration when assessing whether a retrial would be oppressive or unfair to an appellant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 45
- Criminal Appeal Act 1912 (NSW), s 8
- Evidence Act 1995 (NSW), ss 55 and 56

Cases
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35
- Castagna v R; Agius v R [2019] NSWCCA 114
- ST v Regina [2010] NSWCCA 5
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- Gerakiteys v R (1984) 153 CLR 317
- King v R (1986) 161 CLR 423
- R v Taufehema (2007) 228 CLR 232; [2007] HCA 11
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48
- Andrews v The Queen (1968) 126 CLR 198; [1968] HCA 84
- Peacock v The King (1911) 13 CLR 619; [1911] HCA 66