R v A2

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No S43/2019

THE QUEEN  APPELLANT

AND

A2  RESPONDENT

Matter No S44/2019

THE QUEEN  APPELLANT

AND

KUBRA MAGENNIS  RESPONDENT

Matter No S45/2019

THE QUEEN  APPELLANT

AND

SHABBIR MOHAMMEDBHAI VAZIRI  RESPONDENT

The Queen v A2
The Queen v Magennis
The Queen v Vaziri

[2019] HCA 35

16 October 2019

S43/2019, S44/2019 & S45/2019

ORDER

Matter No S43/2019

1.Appeal allowed.

2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

Matter No S44/2019

1.Appeal allowed.

2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

Matter No S45/2019

1.Appeal allowed.

2.Set aside the orders of the New South Wales Court of Criminal Appeal made on 10 August 2018.

3.Remit the matter to the New South Wales Court of Criminal Appeal for determination of Ground 2 of the respondent's appeal to that Court according to law.

On appeal from the Supreme Court of New South Wales

Representation

D T Kell SC with E S Jones for the appellant in each matter (instructed by Solicitor for Public Prosecutions (NSW))

H K Dhanji SC with D R Randle for the respondents in S43/2019 and S45/2019 (instructed by Armstrong Legal)

T A Game SC with G E L Huxley for the respondent in S44/2019 (instructed by Armstrong Legal)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v A2
The Queen v Magennis
The Queen v Vaziri

Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person" is liable to imprisonment – Where two respondents charged with having "mutilated the clitoris" of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word "mutilate" in context of female genital mutilation means "to injure to any extent" – Where trial judge directed jury that "clitoris" includes "clitoral hood or prepuce" – Whether "otherwise mutilates" should be given ordinary meaning or take account of context of female genital mutilation – Whether "clitoris" includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of "mutilate" and "clitoris".

Appeals – Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal against conviction allowed, subject to special provisions of Act, Court of Criminal Appeal "shall ... quash the conviction and direct a judgment and verdict of acquittal to be entered" – Where s 8(1) provides that on appeal against conviction, Court of Criminal Appeal may order new trial if it considers that miscarriage of justice has occurred and it can be more adequately remedied by order for new trial than any other order – Where Court of Criminal Appeal allowed appeals against convictions based on construction of s 45(1)(a) of Crimes Act and on other grounds including that verdicts unreasonable or unsupported by evidence – Whether open to Court to quash conviction and decline to make further order – Whether sufficient evidence to warrant order for new trial – Whether matter should be remitted to Court of Criminal Appeal for redetermination of ground alleging that verdicts unreasonable or unsupported by evidence.

Words and phrases – "child abuse", "clitoris", "context", "de minimis injury", "female genital mutilation", "injury", "khatna", "mischief", "misdirected the jury", "mutilation", "offence provisions", "otherwise mutilates", "purposive construction", "ritualised circumcision", "sufficient evidence", "tissue damage", "umbrella term".

Crimes Act 1900 (NSW), s 45.
Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW).
Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1).

1. KIEFEL CJ AND KEANE J. Section 45 of the Crimes Act 1900 (NSW) came into effect on 1 May 1995. It was introduced by the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW). The section is headed "Prohibition of female genital mutilation". At the relevant time, s 45(1) was in these terms:

   "A person who:

   (a)excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

   (b)aids, abets, counsels or procures a person to perform any of those acts on another person,

   is liable to imprisonment for 7 years."

2. The respondents A2 and Ms Kubra Magennis were charged upon indictment with having "mutilated the clitoris" of each of C1 and C2 on separate occasions.  They were also charged with an alternative count of assault occasioning actual bodily harm[1].  The respondent Mr Shabbir Mohammedbhai Vaziri was charged with assisting A2 and Ms Magennis following the commission of those offences[2].

   [1]Crimes Act 1900 (NSW), s 59(2).

   [2]Crimes Act 1900 (NSW), s 347.

3. A2 and her husband, A1, are members of the Dawoodi Bohra community.  The members of this community adhere to Shia Islam.  Mr Vaziri is the head cleric and spiritual leader of the community in Sydney.  Ms Magennis is a member of the community, and a trained nurse and midwife.  The Crown alleged at trial that she performed the practice in question for members of the community.

4. The Crown case was that A2 (the mother of C1 and C2) and Ms Magennis were parties to a joint criminal enterprise to perform a ceremony called "khatna", which involves causing injury to a young girl's clitoris by cutting or nicking it.  The procedure was said to be intended to suppress the development of a girl's sexuality as she attains puberty.  The Crown did not suggest that the procedure has a basis in religion but rather suggested that it is cultural in nature.

5. This procedure was allegedly conducted on each of C1 and C2 in the presence of A2 and other family members.  With respect to C1, the procedure was allegedly conducted at the home of A1's aunt when C1 was aged between six and eight years of age.  C2, the younger of the sisters, was six years old when she was later allegedly subjected to the same treatment.

6. The respondents did not dispute that there had been a procedure performed by Ms Magennis on C1 and C2.  The defence case was that it was merely ritualistic and did not involve any nick or cut to the clitoris of either complainant.  To rebut this aspect of the defence case, the Crown relied on:  the accounts given by C1 and C2, in their recorded interviews with police, of feeling pain; expert evidence tendered in relation to the practice of khatna within the community; and conversations between A2, A1 and others, which were intercepted or recorded via listening devices, as to what was involved in the practice.

7. The respondents also argued that even if there was a cut or a nick (the latter presumably being a lesser version of the former) to the clitoris of either complainant, that would not amount to "mutilation" within the meaning of s 45(1)(a). The trial judge in the Supreme Court, Johnson J, made a pre-trial ruling concerning the words "otherwise mutilates" in s 45(1)(a). His Honour subsequently directed the jury in accordance with that ruling in terms that:

   "The word 'mutilate' in the context of female genital mutilation means to injure to any extent."

8. His Honour then went on regarding the Crown case to direct that:

   "[i]t is not necessary for the Crown to establish that serious injury resulted.  In the context of this trial, a nick or cut is capable of constituting mutilation for the purpose of this alleged offence."

9. A written direction in the same terms was provided to the jury.

10. A2 and Ms Magennis were each found guilty by the jury of two counts of female genital mutilation contrary to s 45(1)(a) and Mr Vaziri was found guilty of two counts of being an accessory to those offences. Johnson J sentenced each of the respondents to an aggregate of 15 months' imprisonment with a non‑parole period of 11 months and ordered that the sentences imposed upon A2 and Ms Magennis be served by way of home detention. Mr Vaziri was required to serve his non‑parole period by way of full-time imprisonment.

11. On appeal, the Court of Criminal Appeal (Hoeben CJ at CL, Ward JA and Adams J) quashed the respondents' convictions and ordered verdicts of acquittal on all counts[3].  Their Honours concluded that the trial judge had misdirected the jury as to the meaning of "mutilates"[4] and that there had been a miscarriage of justice due to fresh evidence[5]. In their Honours' view, the word "mutilates" should be given its ordinary meaning for the purposes of s 45(1)(a). That meaning "connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion"[6].

    [3]A2 v The Queen [2018] NSWCCA 174.

    [4]A2 v The Queen [2018] NSWCCA 174 at [521].

    [5]A2 v The Queen [2018] NSWCCA 174 at [589]. See Criminal Appeal Act 1912 (NSW), s 6(1).

    [6]A2 v The Queen [2018] NSWCCA 174 at [521].

12. Special leave to appeal was granted by Bell, Gageler and Edelman JJ on two grounds. The first is a matter of general importance respecting the operation of s 45(1)(a). It is that the Court of Criminal Appeal erred in construing "otherwise mutilates" as it did. The second relates to the meaning the Court gave to the term "clitoris", namely that it did not include the clitoral hood or prepuce.

    "Otherwise mutilates"

    The reasoning of the courts below

13. The essential difference in approach to the meaning of the term "otherwise mutilates" in s 45(1)(a) as between the trial judge and the Court of Criminal Appeal is that, whilst the Court of Criminal Appeal applied the grammatical or literal meaning of the word "mutilates", the trial judge considered that the meaning to be given to that word should take account of the context in which the word is used. In his Honour's view, the word should be understood as part of the broader umbrella term, "female genital mutilation" (or "FGM")[7]. This broader construction, advanced by the Crown, would best promote the purpose or object of prohibiting such procedures generally. This purpose is evident from extrinsic materials and in particular the report published in June 1994 by the Family Law Council with respect to the practice of female genital mutilation in Australia ("the FLC Report")[8].

    [7]R v A2 [No 2] (2015) 253 A Crim R 534 at 568 [242]-[244].

    [8]R v A2 [No 2] (2015) 253 A Crim R 534 at 569 [249]; Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994).

14. The Court of Criminal Appeal regarded it as important that the Crimes Act does not use the term "female genital mutilation" in describing the elements of the offence in s 45. It uses only the word "mutilates". Although apparently accepting that the term "female genital mutilation" has come to be accepted as a collective name, which is to say a term encompassing all forms of cultural ritual practices of the kind in question, the Court of Criminal Appeal did not consider this to be relevant given the words used in s 45(1)[9].

    [9]A2 v The Queen [2018] NSWCCA 174 at [494].

15. The Court of Criminal Appeal accepted that, regardless of whether there was ambiguity in the text of s 45(1)(a), it was permissible to have recourse to extrinsic materials to determine the context for the offence provision, including its purpose and the mischief it sought to address[10]. The Court accepted that the word "mutilates" should be construed in the context of the FLC Report and that the recommendations contained in it informed the legislature's purpose in enacting s 45. However, their Honours considered that that general purpose cannot extend the scope of the conduct prohibited by the actual words used. The umbrella term "female genital mutilation" was not used in s 45(1), and the phrase cannot supplant the meaning of the words actually used[11].

    [10]A2 v The Queen [2018] NSWCCA 174 at [474]-[477].

    [11]A2 v The Queen [2018] NSWCCA 174 at [513].

16. The FLC Report, to which reference will be made shortly in these reasons, refers to four categories of female genital mutilation.  The least severe of these practices was referred to as "ritualised circumcision".  Both the FLC Report and the World Health Organization ("the WHO") had recommended its inclusion in the forms of female genital mutilation to be prohibited by law, the Court of Criminal Appeal noted[12]. 

    [12]A2 v The Queen [2018] NSWCCA 174 at [523].

17. That category is relevant to the Crown case because "ritualised circumcision" involves nicking or cutting the clitoris. The Court of Criminal Appeal, however, observed that while the Second Reading Speech of the Bill which became the Act that introduced s 45 contained no disagreement with the recommendation of the Family Law Council that all forms of female genital mutilation be prohibited, it was notable that the speech referred expressly only to the three more severe forms of it[13]. The Court of Criminal Appeal considered this to support the view that s 45(1)(a) requires some more severe form of injury than a nick or a cut that leaves no visible scarring and which cannot be seen on medical examination to have caused any damage (let alone irreparable damage) to the skin or nerve tissue[14].

    [13]A2 v The Queen [2018] NSWCCA 174 at [514].

    [14]A2 v The Queen [2018] NSWCCA 174 at [515].

18. The Court of Criminal Appeal concluded that the term "mutilates" controls the scope of s 45(1)(a). It requires some imperfection or irreparable damage to have been caused. Their Honours accepted that "a cut or nick could, in a particular case, amount to mutilation of the clitoris"[15].  The error that their Honours saw in the direction given by the trial judge was that it included the words "to any extent", because they suggested that a de minimis injury would suffice[16].  Their Honours added[17] that if the legislature intended to encompass all forms of female genital mutilation, legislative amendment would be necessary to expressly incorporate the least severe category of female genital mutilation.

    [15]A2 v The Queen [2018] NSWCCA 174 at [522].

    [16]A2 v The Queen [2018] NSWCCA 174 at [522].

    [17]A2 v The Queen [2018] NSWCCA 174 at [524].

    Female genital mutilation and the WHO

19. Early studies and discussion from the late nineteenth century and until the 1980s referred to the customary ritual of some of the practices in question as "female circumcision"[18].  From the late 1970s, support grew for the alternative expression "female genital mutilation" to be used.  The WHO has explained that the term "mutilation" was chosen to distinguish the practice from male circumcision, to emphasise the gravity and harm of the act and to reinforce the fact that the practice is a violation of girls' and women's rights and thereby to promote advocacy for its abandonment[19].

    [18]World Health Organization, Female Genital Mutilation:  An overview (1998) at 2.

    [19]World Health Organization, Eliminating Female genital mutilation:  An interagency statement (2008) at 22 (Annex 1:  Note on terminology).

20. In 1982, the WHO made a formal statement of its position to the United Nations Commission on Human Rights, that governments should adopt clear national policies to abolish the practice of female genital mutilation and to educate the public about its harmfulness[20].  By this time, four different types of the practice had been identified[21].  In January 1994, the Executive Board of the WHO passed a resolution which urged Member States to "establish national policies and programmes that will effectively, and with legal instruments, abolish female genital mutilation … and other harmful practices affecting the health of women and children"[22].  This resolution was later adopted by the Forty-seventh World Health Assembly[23].

    [20]World Health Organization, Female Genital Mutilation:  An overview (1998) at 59-60.

    [21]World Health Organization (Regional Office for the Eastern Mediterranean), Seminar on Traditional Practices Affecting the Health of Women and Children:  Khartoum, 10-15 February 1979 (March 1979) at 14.

    [22]Executive Board of the World Health Organization (Ninety-third Session), Maternal and child health and family planning:  Current needs and future orientation:  Traditional practices harmful to the health of women and children (25 January 1994).

    [23]World Health Assembly (Forty-seventh World Health Assembly), Maternal and child health and family planning:  traditional practices harmful to the health of women and children (10 May 1994).

    The FLC Report

21. The functions of the Family Law Council include advising and making recommendations to the Commonwealth Attorney-General at the request of the Attorney-General[24].  In September 1993, the Attorney-General asked the Family Law Council to examine the adequacy of existing Australian laws to deal with the issue of female genital mutilation[25].  The Family Law Council issued a discussion paper on 31 January 1994.  Its final report to the Attorney-General, the FLC Report, is dated June 1994.  It described female genital mutilation as "the collective name" given to several different traditional practices that involve the cutting of female genitals[26].  It said that those who oppose the practice call it "genital mutilation".  It advised that the term "female genital mutilation" is used in the report to include all types of the practice where tissue damage results[27].

    [24]Family Law Act 1975 (Cth), s 115(3).

    [25]Family Law Council, Female Genital Mutilation:  Discussion Paper (31 January 1994) at 3 [1.01].

    [26]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 6 [2.01].

    [27]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 6 [2.02].

22. The first form of female genital mutilation to which the FLC Report referred is the least severe form, namely "ritualised circumcision", which was referred to by the Court of Criminal Appeal as the fourth category.  The FLC Report explained that "ritualised circumcision" ranges from a wholly ritualised procedure to the clitoris being "nicked" or scraped.  This causes bleeding but may result in "little mutilation or long term damage"[28].  The second form is "clitoral circumcision" or "sunna".  It involves the removal of the clitoral prepuce – the outer layer of skin over the clitoris, which is sometimes called the "hood"[29].  The third form is "excision" or "clitoridectomy", which usually involves the removal of the entire clitoris and often parts of the labia minora as well[30].  The fourth and most severe form is "infibulation", which involves removal of virtually all of the external female genitalia and the sewing together of the edges of the labia majora[31].

    [28]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 6 [2.03].

    [29]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 7 [2.04].

    [30]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 7 [2.05].

    [31]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 7 [2.06].

23. The FLC Report advised that female genital mutilation mostly occurs when a female child is between three and eight years of age[32].  It is not, the report stressed, a religious practice[33].  The practice undoubtedly constitutes child abuse[34].  The report identified a number of international instruments as relevant to the practice of female genital mutilation, including the Convention on the Rights of the Child[35].  Article 24(3) of the Convention requires State parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.  Australia is a party to the Convention, the FLC Report observed[36].

    [32]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 9 [2.13].

    [33]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 9 [2.15].

    [34]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 50 [6.37].

    [35]And also the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Declaration on the Elimination of Violence Against Women, and the 1951 Convention and 1967 Protocol relating to the Status of Refugees:  Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994).

    [36]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 29 [4.07].

24. Although it was not possible to ascertain with accuracy the incidence of the practice of female genital mutilation in Australia, the FLC Report concluded that even a low incidence could not be disregarded and it might be expected that, with the increase of migrants to Australia, it would increase[37].  The Family Law Council considered there to be a need for special legislation to clarify the legal position relating to female genital mutilation in Australia.  This was for reasons including that "[t]here should be no doubt in any person's mind that all forms of female genital mutilation are offences under Australian law"[38].  It concluded that there should be special legislation which makes it clear that the practice is an offence in Australia[39] and recommended[40] that, to be fully effective, legislation should put beyond doubt "that female genital mutilation, in all of its forms, is a criminal offence" and that it constitutes child abuse under Australian child protection legislation[41].

    [37]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 18 [2.52].

    [38]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 50 [6.37].

    [39]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 52 [6.41].

    [40]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 63 [6.80].

    [41]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 63 [6.80].

    The Explanatory Note and the Second Reading Speech

25. The Explanatory Note which accompanied the Crimes (Female Genital Mutilation) Amendment Bill 1994 (NSW) referred to "[p]rocedures involving the incision, and usually removal, of part or all of the external genitalia of young females" as being practised as a matter of custom or ritual[42].  The object of the Bill was to make it an offence to mutilate external female genitalia or to aid, abet, counsel or procure such mutilation.

    [42]New South Wales, Legislative Council, Crimes (Female Genital Mutilation) Amendment Bill 1994, Explanatory Note at 1.

26. The Second Reading Speech of the Bill was given in the Legislative Council of the New South Wales Parliament on 4 May 1994.  It refers to the "detailed report" of the Family Law Council and its recommendations with respect to the practice of female genital mutilation.  It does not refer to the earlier discussion paper.  Although the published FLC Report bears the date June 1994, it may be taken as likely that advance copies were available to those responsible for drafting the Bill and the Second Reading Speech.

27. The Minister giving the Second Reading Speech said at the outset that "[f]emale genital mutilation, or FGM, is the term used to describe a number of practices involving the mutilation of female genitals for traditional or ritual reasons"[43].  He said that "[t]his bill will make the practice of female genital mutilation a criminal offence in this State".  The Minister used the term "the practice" throughout the speech to refer to female genital mutilation.

    [43]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1859.

28. The practice, he said, had been condemned at an international level and the WHO had recommended that governments adopt clear national policies to abolish it.  Some countries had already moved to prohibit it specifically, he observed.  The Family Law Council in its "recently released ... detailed report ... strongly recommended the introduction of legislation to make clear that FGM constitutes a criminal act and a form of child abuse"[44].  The Bill, the Minister went on to say, "has its roots in the protection of children"[45].

    [44]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1859.

    [45]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1860.

29. It is the following description of the provisions of the Bill by the Minister which was influential to the Court of Criminal Appeal's reasoning.  The Minister said that "[i]t will be an offence for anyone to perform FGM in this State"[46].  He went on to say that "[t]he three forms of FGM in order of severity are infibulation, clitoridectomy and sunna"[47].  The Bill, he said, "seeks to prohibit all of these various methods of FGM"[48].  The point made by the respondents, and by the Court of Criminal Appeal, is that the Minister did not expressly refer to ritualised circumcision as the FLC Report had done.  The question is whether the words "or otherwise mutilates" can be taken to refer to ritualised circumcision.

    [46]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1860.

    [47]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1860.

    [48]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1860.

30. In the concluding remarks of the speech, the Minister stressed that in passing a law against female genital mutilation, the Government was not seeking to attack the values of any particular group in the community[49].  However, the practice could not be tolerated, not least because it involved the rights of young children.  The Minister said that "[a]s responsible members of the community, we should place our condemnation of FGM beyond doubt".

    [49]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1860.

    Construction – method

31. At issue in these appeals is the scope and operation of s 45(1) and in particular whether the words "otherwise mutilates" may be taken as intended to encompass the procedure upon which the Crown case was based.

32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled.  It commences with a consideration of the words of the provision itself, but it does not end there.  A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable[50], has long been eschewed by this Court.  It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete[51].  This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision[52].

    [50]See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the Engineers' Case") (1920) 28 CLR 129 at 162 per Higgins J; [1920] HCA 54.

    [51]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28.

    [52]Bennion, Statutory Interpretation, 3rd ed (1997) at 343-344, referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].

33. Consideration of the context for the provision is undertaken at the first stage of the process of construction[53].  Context is to be understood in its widest sense.  It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole.  It extends to the mischief which it may be seen that the statute is intended to remedy[54].  "Mischief" is an old expression[55].  It may be understood to refer to a state of affairs which to date the law has not addressed.  It is in that sense a defect in the law which is now sought to be remedied[56].  The mischief may point most clearly to what it is that the statute seeks to achieve.

    [53]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].

    [54]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

    [55]Heydon's Case (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638].

    [56]Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] AC 591 at 614; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 509; [1978] HCA 30; Wacando v The Commonwealth (1981) 148 CLR 1 at 17; [1981] HCA 60.

34. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction.  These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

35. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[57] rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision.  The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation[58].  Similarly, in Saeed v Minister for Immigration and Citizenship[59] the court below was held to have failed to consider the actual terms of the section.  A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself.  In Baini v The Queen[60], it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

    [57](2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41.

    [58]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-48 [47]-[53].

    [59](2010) 241 CLR 252 at 265 [32]-[34]; [2010] HCA 23.

    [60](2012) 246 CLR 469 at 476 [14]; [2012] HCA 59.

36. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words.  As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

37. None of these cases suggest a return to a literal approach to construction.  They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed[61].  They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd[62], that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance".  When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning[63].  A construction which promotes the purpose of a statute is to be preferred[64].

    [61]See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47].

    [62](1997) 187 CLR 384 at 408.

    [63]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26.

    [64]Interpretation Act 1987 (NSW), s 33.

    The mischief and the purpose of s 45

38. Section 45 was the first provision of its kind enacted in Australia[65].  Its terms reflect those of ss 1 and 2 of the Prohibition of Female Circumcision Act 1985 (UK)[66] ("the UK Act").  The side note (the use of which preceded that of section headings) of s 1 was "Prohibition of female circumcision".  At the time that s 45 was passed there was no case law regarding the scope of those provisions[67].

    [65]See Crimes (Amendment) Act (No 3) 1995 (ACT), s 5; Criminal Code Amendment Act (No 2) 1995 (NT), s 3; Statutes Amendment (Female Genital Mutilation and Child Protection) Act 1995 (SA), s 4; Criminal Code Amendment Act 1995 (Tas), s 5; Crimes (Female Genital Mutilation) Act 1996 (Vic), s 4; Criminal Law Amendment Act 2000 (Qld), s 19; Criminal Code Amendment Act 2004 (WA), s 22.

    [66]Which was later replaced by the Female Genital Mutilation Act 2003 (UK).

    [67]Re B and G (Children) [No 2] [2015] 1 FLR 905 was decided later, contains no detailed reasons and is inconclusive on the matter.

39. Whilst s 45 picked up the words of ss 1 and 2 of the UK Act, neither the title of the Act which introduced it nor the heading to s 45 refers to the older terminology, "female circumcision". The heading to s 45, and the immediate context for the words "otherwise mutilates", is "[p]rohibition of female genital mutilation".

40. A modern approach to statutory construction may take account of headings[68].  Whilst headings of a provision are not always reliable and do not form part of a statute[69], and so may not govern what follows in the provision, headings may be used in a similar way to extrinsic materials[70].  They may point the way towards and be used to identify the mischief to which the provision is directed and its purpose.  The heading of s 45 does just that.

    [68]Bennion, Bennion on Statutory Interpretation, 5th ed (2008) at 745-747; R v Montila [2004] 1 WLR 3141; [2005] 1 All ER 113.

    [69]Interpretation Act 1987 (NSW), s 35(2).

    [70]Interpretation Act 1987 (NSW), ss 34(1), 35(5).

41. The possible gap or defect in the law which the Attorney‑General had asked the Family Law Council to consider was that relating to female genital mutilation.  The term, it may be observed, by this time had acquired a broad and purposive meaning in many of the reports and discussions concerning the various practices accounted for as female genital mutilation.  But it is not necessary to go further than the meaning which the FLC Report gave to the term.  It is that meaning which identifies the mischief which needed to be addressed by legislation.  The mischief is the practice of female genital mutilation in its various forms.

42. The FLC Report used the term "female genital mutilation" as a collective name to refer to all ritual practices carried out on female children which had no medical benefit and involved tissue damage.  It advised the Attorney-General that there was a need for special legislation to make it plain that female genital mutilation, in all its forms, should be an offence.

43. Consistently with its use of the term "female genital mutilation", the FLC Report referred to its various forms collectively as "the practice".  The Second Reading Speech adopted the terminology of the FLC Report.  In the speech it was said that the practice should be condemned and the practice should not be tolerated.  The Second Reading Speech as a whole conveys acceptance of the FLC Report and an intention to implement it.

44. So understood, the mischief to which s 45 is directed is a gap in the law concerning the practice of female genital mutilation in all its forms which are productive of injury.  Its immediate purpose is to criminalise the carrying out of that practice on female children.  Its wider purpose may be taken to be its cessation.

    A narrower scope?

45. The Court of Criminal Appeal[71] rejected an argument that "otherwise mutilates" should be read in the context of the words preceding it ("excises" and "infibulates"), so as to import a common requirement of severe damage and injury of a high order.  There is no notice of contention which takes issue with that approach.  Nevertheless the Court of Criminal Appeal considered that the words "otherwise mutilates" import a requirement that permanent disfigurement or obvious damage result from what is done[72].

    [71]A2 v The Queen [2018] NSWCCA 174 at [517]-[519].

    [72]A2 v The Queen [2018] NSWCCA 174 at [521].

46. The Court of Criminal Appeal was of the opinion that the Minister's speech bears this out: that the Minister can be understood to say that it was intended to prohibit the three most severe forms, but not the fourth, which involves a lesser form of injury. The problem with that approach is that it is inexplicable and improbable. It is inexplicable given the obvious acceptance of the recommendation of the FLC Report to prohibit all four forms of female genital mutilation there expressly identified. It is improbable because there is nothing to suggest that a lesser form of injury to a child was considered to be acceptable or, at the least, not warranting condemnation. The Bill which became the Act that introduced s 45, after all, was said by the Minister to address what amounts to child abuse and the FLC Report had said that female genital mutilation in all its injurious forms was child abuse as understood in child protection laws.

47. The Court of Criminal Appeal did not explain why the term "otherwise mutilates" may have been intended to have a narrower, more literal meaning, one which denies its application to the cutting or nicking of a female child's clitoris. Although the Court accepted that cutting or nicking could in a particular case amount to mutilation, on its construction of "mutilates" in s 45(1) as bearing its ordinary meaning that could only be where some lasting damage had been inflicted.

48. Difficulties would also attend this construction in practice.  The medical evidence at trial was that a superficial cut, or incision, of the clitoris would heal well, sometimes bearing little or no evidence of what had occurred.  On the Court of Criminal Appeal's construction, it may be taken as intended that even if a child might suffer a painful and distressing experience, no offence is committed unless some defect or damage is apparent.  This in turn might require the prosecution to have been brought immediately.

49. The respondents also contended that if "otherwise mutilates" has the extended meaning provided by the term "female genital mutilation", s 45(1) would make it an offence to carry out a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals. The answer to the argument is that no such problem would arise if "otherwise mutilates" is taken to refer to practices to which female genital mutilation refers.

    Section 45(3)

50. The respondents also pointed to s 45(3) in aid of the construction for which they contended. Sub-section (3) provides, in relevant part, that it is not an offence against s 45(1) to perform a surgical operation if it is necessary for the health of the person and it is performed by a medical practitioner. It is most clearly protective of beneficial medical procedures such as may be necessary during or following childbirth or to correct or repair some of the effects of forms of female genital mutilation such as infibulation.

51. The point made by the respondents respecting s 45(3) is that it would be redundant if the section proscribed the practice of female genital mutilation, which is necessarily for non-medical purposes. However, s 45(3), commencing with the words "It is not an offence against this section ...", is properly read as a clarification inserted for the avoidance of doubt, and not as an exception to s 45(1).

    Offence provisions

52. A statutory offence provision is to be construed by reference to the ordinary rules of construction.  The old rule, that statutes creating offences should be strictly construed, has lost much of its importance[73].  It is nevertheless accepted that offence provisions may have serious consequences.  This suggests the need for caution in accepting any "loose" construction of an offence provision[74].  The language of a penal provision should not be unduly stretched[75] or extended[76].  Any real ambiguity as to meaning is to be resolved in favour of an accused.  An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction[77].

    [73]Beckwith v The Queen (1976) 135 CLR 569 at 576; [1976] HCA 55. See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 145; [1983] HCA 44; Waugh v Kippen (1986) 160 CLR 156 at 164; [1986] HCA 12.

    [74]Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 211 [45]; [2005] HCA 58.

    [75]Allan v Quinlan; Ex parte Allan [1987] 1 Qd R 213 at 215, referred to in Milne v The Queen (2014) 252 CLR 149 at 164 [38]; [2014] HCA 4.

    [76]Beckwith v The Queen (1976) 135 CLR 569 at 576.

    [77]Barker v The Queen (1983) 153 CLR 338 at 355; [1983] HCA 18; Chew v The Queen (1992) 173 CLR 626 at 632; [1992] HCA 18.

53. The meaning to be given to "otherwise mutilates", as referable to practices falling within the umbrella term "female genital mutilation", does not involve any artificial or unexplained extension.  There is no ambiguity as to its meaning after it is considered in its context and by reference to the mischief to which it is directed and its purposes.  The word "mutilates" in its ordinary usage is simply displaced in order to give effect to the purpose of s 45, to prohibit the practice of female genital mutilation on female children in order to achieve its cessation.  So understood, "otherwise mutilates" is to be taken to refer to female genital mutilation in all its injurious forms.

54. Cases such as Milne v The Queen[78] do not avail the respondents.  There, the construction for which the respondent contended was not borne out by the text of the provision, and its purpose, evident from extrinsic materials, did not require it.  In SAS Trustee Corporation v Miles[79], it was said that a court should construe a statute according to its terms rather than preconceptions about policy[80], but here there is no question of any preconception.  The policy of s 45 is stark.  The joint judgment in Grajewski v Director of Public Prosecutions (NSW)[81] adopted the ordinary meaning of the word "damage", but that was in large part because there was no support for any other meaning and the legislative history did not support an extended meaning[82].

    [78](2014) 252 CLR 149.

    [79](2018) 92 ALJR 1064; 361 ALR 206; [2018] HCA 55.

    [80]SAS Trustee Corporation v Miles (2018) 92 ALJR 1064 at 1074 [32]; 361 ALR 206 at 218.

    [81](2019) 93 ALJR 405; 364 ALR 383; [2019] HCA 8.

    [82]Grajewski v Director of Public Prosecutions (NSW) (2019) 93 ALJR 405 at 408 [13]; 364 ALR 383 at 386.

55. A broad construction of an offence provision may be warranted in a particular case.  This may be when its purpose is protective.  In R v Sharpe[83], McLachlin CJ of the Supreme Court of Canada construed offence provisions relating to child pornography broadly in a number of respects.  Her Honour interpreted the provisions in accordance with Parliament's main purpose in creating those offences:  to prevent harm to children through sexual abuse.  A similar purposive approach was taken by the Court of Appeal of the Supreme Court of Victoria in Clarkson v The Queen[84] in rejecting an argument that "apparent or ostensible consent" could be a mitigating factor in sexual offences relating to underage sex.

    [83][2001] 1 SCR 45 at 77 [38], 79 [43].

    [84](2011) 32 VR 361.

56. A construction which gives a broader scope to s 45 is consistent with its wider purpose, to prohibit completely female genital mutilation practices injurious to female children.  That purpose is consistent with Australia's obligations under the Convention on the Rights of the Child, to which the FLC Report drew attention.

57. In R v Wei Tang[85], which concerned the offence of slavery in s 270.3 of the Criminal Code (Cth), it was argued that the term "slavery" was confined in its meaning to the exercise of powers consistent with rights of ownership, or "chattel slavery". Gleeson CJ observed that although the definition of slavery in s 270.1 was not identical to that in the International Convention to Suppress the Slave Trade and Slavery of 1926, the s 270.1 definition was clearly enough derived from the Convention[86].  The purpose, context and text of the Convention did not limit slavery to its de jure status.  The Convention was directed to "the complete abolition of slavery in all its forms", and reflected a purpose of bringing about the abolition of the de facto condition of slavery[87].  Accordingly, his Honour held that it would be inconsistent with the considerations of purpose, context and text to read "slavery" in ss 270.1 and 270.3 as limited to "chattel slavery".

    [85](2008) 237 CLR 1; [2008] HCA 39.

    [86]R v Wei Tang (2008) 237 CLR 1 at 16 [21].

    [87]R v Wei Tang (2008) 237 CLR 1 at 17-18 [25]-[27].

58. A purposive approach of this kind does not suggest that the language of a statutory provision is to be ignored.  It is rather that a broader meaning of the language is to be preferred over its ordinary or grammatical meaning.  It is necessary to do so to give effect to the provision's purpose.  That purpose is evident from the use of the term "female genital mutilation" in the heading and extrinsic materials.  The word "mutilates" is to be understood as a term of condemnation of any of the practices referred to in the FLC Report injurious to a female child.  It follows that an injury such as cutting or nicking the clitoris of a female child cannot be said to be de minimis.

    Injury – to any extent?

59. It also follows that the trial judge did not misdirect the jury in summing up that the word "'mutilate' in the context of female genital mutilation means to injure to any extent".  The Court of Criminal Appeal, it will be recalled, considered that those words would convey to a jury that a de minimis injury would be sufficient for the offence.  But the trial judge's direction was legally correct as consistent with the FLC Report and it provided the necessary explanation of the issue before the jury.

60. The function of a summing up is to provide information to a jury to assist it to carry out its task having regard to the particular circumstances of the case[88].  The particular issue here in question was whether what occurred involved no injury at all.  It was the defence case that the khatna ceremony was partly symbolic and involved merely the placing of a surgical instrument on the vulva of the complainants.  It was described as "skin sniffing the steel", and as involving no nicking or cutting and therefore no damage or injury to the complainants.  The Crown submitted that this concept was bizarre and implausible.

    [88]Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3; Darkan v The Queen (2006) 227 CLR 373 at 394 [67]; [2006] HCA 34.

61. Against this background and in light of the defence submissions concerning the meaning of "mutilates", it is apparent that the purpose of the trial judge's direction that injury "to any extent" was sufficient was to emphasise that some injury was necessary but that a threshold of serious injury was not required.  His Honour, correctly, was concerned to disabuse the jury of the notion that "mutilates" bears its ordinary meaning.

    Meaning of "clitoris"

62. The indictment charged the respondents with the mutilation of the clitoris of each of C1 and C2.  The trial judge directed the jury that "what the Crown has to prove, for you to convict Kubra Magennis on this count, is that she performed an act which mutilated the clitoris.  The clitoris … includes the clitoral hood or prepuce.  So this charge is one that requires identification of a particular part of the anatomy."[89]

    [89]A2 v The Queen [2018] NSWCCA 174 at [456].

63. The defence had pointed to a number of dictionary definitions, including medical dictionary definitions, which suggested that the prepuce is part of the labia minora[90].  The trial judge considered that the issue was capable of being moot to an extent, given that the definitions and medical evidence demonstrate that if the prepuce is not part of the clitoris, it is part of the labia minora.  But if that were the case it might have been necessary to amend the indictment[91].

    [90]R v A2 [No 2] (2015) 253 A Crim R 534 at 571-572 [263].

    [91]R v A2 [No 2] (2015) 253 A Crim R 534 at 572 [267].

64. His Honour construed "clitoris" broadly, having regard to the context and purpose of s 45(1). He observed that female genital mutilation procedures are not carried out by surgeons[92].  Although the legislature had identified three particular areas and had not used a broader term such as "genital area", his Honour was satisfied that, as a matter of construction, "the clitoris and the prepuce of the clitoris are so closely interrelated that the prepuce may be regarded as part of the clitoris although, for technical purposes, it may also be regarded as part of the labia minora"[93].

    [92]R v A2 [No 2] (2015) 253 A Crim R 534 at 572 [268].

    [93]R v A2 [No 2] (2015) 253 A Crim R 534 at 573 [270].

65. It does not appear to have been contended by the parties that the word "clitoris" has a technical meaning which invites recourse to expert evidence[94].  Nevertheless, the Crown adduced evidence from medical experts as to its meaning.  Dr Susan Marks, a specialist at the Westmead Children's Hospital, gave evidence that the clitoral anatomy includes its hood, because they are closely physically related to each other, although the clitoris and its hood are different tissue.  Professor Gregory Jenkins, a specialist gynaecologist, gave evidence that he would see the clitoris and prepuce as separate structures, but observed that they are very close together.  Professor Sonia Grover, the director of the Department of Paediatric and Adolescent Gynaecology at the Royal Children's Hospital, described the word "clitoris" as a global term which included structures such as the clitoral ridge, the clitoral hood, the shaft of the clitoris, the clitoral glans and the prepuce.

    [94]The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 137.

66. Reviewing the medical evidence, the Court of Criminal Appeal observed that the fact that Professor Jenkins considered the clitoris and prepuce to be separate structures "would not detract from the proposition that together they might be viewed as forming part of the clitoris as a whole"[95].  Nevertheless the Court found that the medical dictionary definitions differentiated between the clitoris and prepuce.  It said that where the legislature has identified separate anatomical parts of the genital area with some precision it must be taken to be distinguishing between them.  It held that "[g]iven that this is a penal statute, precision in identifying the relevant body part is important"[96].  The Court of Criminal Appeal concluded that the trial judge had been in error in this aspect of his summing up[97].

    [95]A2 v The Queen [2018] NSWCCA 174 at [525].

    [96]A2 v The Queen [2018] NSWCCA 174 at [526].

    [97]A2 v The Queen [2018] NSWCCA 174 at [527].

67. The approach of the trial judge to the construction of s 45(1)(a) is to be preferred as one which promotes the purpose of s 45(1)[98].  As explained above, that purpose was to prohibit all forms of injurious female genital mutilation, procedures which, the FLC Report had observed[99], are not generally carried out by surgeons or with any precision.  This context and purpose does not suggest an intention that any narrow or technical meaning be applied so as to exclude anatomical structures that are closely interrelated with the labia majora, labia minora or clitoris. 

    [98]Interpretation Act 1987 (NSW), s 33.

    [99]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (June 1994) at 6 [2.01]-[2.02], 8 [2.11], 21 [3.02].

    Relief

68. It follows, in our view, that the appeals should be allowed.  It remains to determine the nature of the relief that is appropriate in the circumstances.

69. Section 37 of the Judiciary Act 1903 (Cth) provides that this Court, in its appellate jurisdiction, may give such judgment as ought to have been given in the first instance and, if the cause is not pending in this Court, may remit the cause to the court from which the appeal was brought. This directs attention to the powers of the Court of Criminal Appeal on the appeals to that Court, in light of the judgment of this Court in these appeals.

70. Subject to the proviso, s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the CA Act") relevantly provides that the Court of Criminal Appeal shall allow an appeal from a conviction on indictment[100] where it is of the opinion that the verdict of the jury is "unreasonable, or cannot be supported, having regard to the evidence, or ... that on any other ground whatsoever there was a miscarriage of justice". Section 6(2) of the CA Act governs the consequential orders.

    [100]Brought pursuant to s 5(1) of the CA Act.

71. The Court of Criminal Appeal allowed the respondents' appeals against their convictions on various grounds. The determination of two of those grounds depended upon the Court of Criminal Appeal's erroneous construction of s 45(1)(a) of the Crimes Act.  Other successful grounds were, however, independent of the substantive issues on these appeals.  Those grounds turned instead upon conclusions that evidence had improperly been admitted at the respondents' trials[101]; that the trial judge had erred in ruling that C2 was competent to give sworn evidence[102]; and that there had been a miscarriage of justice on account of the absence from the trial of medical evidence which, by the time of the appeals, had become available[103].

    [101]A2 v The Queen [2018] NSWCCA 174 at [1090].

    [102]A2 v The Queen [2018] NSWCCA 174 at [850].

    [103]A2 v The Queen [2018] NSWCCA 174 at [358].

72. The first such error concerned the evidence of Dr X.  The Crown tendered evidence at trial through Dr X as to the practice of khatna in the Dawoodi Bohra community in India in a period up to 1991.  Dr X's knowledge was based on her personal experience of having a procedure undertaken on her genital area in 1950 or 1951, and on sociological studies based largely on anecdotal accounts from persons whom she interviewed.  Her evidence was to the effect that the practice of khatna is static and non-ritualistic.

73. The Court of Criminal Appeal held that the evidence adduced from Dr X was partly speculative and was not derived from any area of specialised knowledge. It was not admissible under s 79(1) of the Evidence Act 1995 (NSW), which relates to expert evidence, and should not have been admitted[104].  The appellant does not now challenge that conclusion.

    [104]A2 v The Queen [2018] NSWCCA 174 at [713]-[714].

74. The third error concerned new medical evidence which was adduced before the Court of Criminal Appeal.  It is not necessary to detail it.  It had the effect of excluding the possibility that the tip of the clitoral head or glans had in fact been removed from C1 and C2.  That possibility had been left before the jury, in light of the evidence of one of the expert medical witnesses that she could not see the clitoral glans of either C1 or C2 during her examinations of them.  Again, the appellant does not challenge the conclusion of the Court of Criminal Appeal that a potential miscarriage of justice thereby occurred.

75. In light of those concessions the appellant also concedes that, if its appeals to this Court are successful, this Court should leave undisturbed the Court of Criminal Appeal's orders allowing the respondents' appeals to that Court and quashing their convictions.  But what the appellant did ask this Court to do if its appeals were allowed was to set aside the Court of Criminal Appeal's consequential orders entering verdicts of acquittal and, in their place, order that new trials be had.  The respondents argued that, if the appeals were allowed, this Court should set aside the orders entering the verdicts of acquittal and make no orders for new trials.  In the alternative, it was said to be open to this Court to allow each appeal but leave undisturbed the Court of Criminal Appeal's orders entering verdicts of acquittal.

    Sections 6(2) and 8(1) of CA Act

76. Section 6(2) of the CA Act provides that if an appeal against conviction is allowed, the Court of Criminal Appeal "shall ... quash the conviction and direct a judgment and verdict of acquittal to be entered". The sub-section is subject to other provisions of the CA Act and, in particular, s 8(1), which provides that on an appeal the Court may order a new trial if it considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, the miscarriage can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make. The orders sought by the respondents seem contrary to the terms of s 6(2). Here context provides little assistance in the construction of s 6(2) except that, taken with s 8(1), it appears to provide only a binary choice. The terms of s 6(2) appear to require an order for entry of acquittal unless the Court's other powers, such as that to order a retrial, are exercised. The premise of s 6(2), in a case such as this, is that, if a retrial is not ordered, the person whose conviction has been set aside is entitled to an acquittal.

77. It may be observed that in Jiminez v The Queen[105], where it was not considered appropriate to order a retrial, this Court ordered the entry of a verdict of acquittal.  The reasons in Jiminez did not discuss the option here suggested and no other decision of this Court appears to have discussed the question in any detail.  In these circumstances the parties provided further written submissions at the request of the Court.

    [105](1992) 173 CLR 572; [1992] HCA 14.

78. In their joint submissions the respondents argued that it is open to the Court to quash the conviction and decline to make a further order. They pointed to a number of cases where this has occurred. None of these cases explains how this choice was seen to be open as a matter of the construction of ss 6(2) and 8(1).

79. Some cases to which the respondents referred are explicable on another basis.  Cases such as Maher v The Queen[106] stand for the proposition that there is no need to enter a verdict of acquittal where it has been held that the trial itself is a nullity, or where the indictment is invalid.  In R v Swansson[107], Simpson J pointed out that the inevitable consequence of allowing an appeal is the quashing of the conviction.  The dilemma, her Honour noted, was how the Court could then declare the trials to be a nullity – never to have taken place – and yet order new trials to be had.  In that circumstance, her Honour opined, the Court should merely quash the conviction.  Whatever be the correct approach in cases of this kind, these cases do not support the proposition that it is open to the Court to quash a conviction but not order a retrial or enter a verdict of acquittal.

    [106](1987) 163 CLR 221; [1987] HCA 31. See also R v Brown (2004) 148 A Crim R 268; R v Halmi (2005) 62 NSWLR 263; R v Swansson (2007) 69 NSWLR 406.

    [107](2007) 69 NSWLR 406 at 435 [179]-[180].

80. It is true that there are some cases where this Court has simply made an order quashing a conviction[108], but, as they do not contain any discussion of whether a verdict of acquittal ought to be entered in circumstances where the Court determined not to order a retrial, the omission of an order entering a verdict of acquittal may have been the product of oversight.

    [108]Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55; Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48; Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42.

81. In Gerakiteys v The Queen[109], upon which the respondents relied, it was held that the applicant's conviction on a broad conspiracy charge could not be supported by the evidence and therefore should be quashed.  For the same reason, it was not considered to be appropriate to order a retrial.  Gibbs CJ discussed whether it was appropriate to order a retrial and concluded[110] that the appropriate course was simply to quash the conviction and leave it to the Crown to decide whether to prosecute in respect of one or other of the more limited conspiracies which could be supported by the evidence.  His Honour did not discuss the entry of a verdict of acquittal.  None was sought.  Each of Murphy J[111] and Deane J[112] expressed the view that the applicant was in the circumstances entitled to an acquittal.

    [109](1984) 153 CLR 317; [1984] HCA 8.

    [110]Gerakiteys v The Queen (1984) 153 CLR 317 at 321-322.

    [111]Gerakiteys v The Queen (1984) 153 CLR 317 at 322.

    [112]Gerakiteys v The Queen (1984) 153 CLR 317 at 336-337.

82. In Pedrana[113], Ipp A-JA, referring to ss 6(2) and 8(1), said that these provisions "do not empower the court to order that no new trial should be held. Nor do they empower the court to quash the conviction and make no other order." The view that these provisions present the only alternatives where an appeal against conviction on indictment is allowed is consistent with statements by members of this Court in R v Taufahema[114] that "[t]he question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal" and in Spies v The Queen[115] that "[i]f this Court were now to refuse to order a new trial of that charge, the appellant would be acquitted of all charges".

    [113](2001) 123 A Crim R 1 at 11 [71].

    [114](2007) 228 CLR 232 at 255 [51]; [2007] HCA 11.

    [115](2000) 201 CLR 603 at 638 [103]; [2000] HCA 43.

83. It follows in our view that it is not open to construe ss 6(2) and 8(1) of the CA Act as permitting the Court of Criminal Appeal in a case such as the present to quash the respondents' convictions but neither order a new trial nor enter verdicts of acquittal. That is sufficient to dispose of the respondents' primary contention.

    A new trial?

84. As to the respondents' alternative contention, unless the interests of justice require the entry of a verdict of acquittal, an appellate court would ordinarily order a new trial where there is sufficient evidence to support a conviction[116].

    [116]Spies v The Queen (2000) 201 CLR 603 at 638 [103]-[104].

85. It is well settled that provisions such as s 8(1) confer a discretion to order a new trial[117].  There may be factors which suggest that such an order is not appropriate[118].  In the present case there are some such factors.  C1 and C2 were children when they were interviewed by police and when they gave evidence at a trial which took place in 2015.  The trial judge, in considering whether C1 and C2 were compellable to give evidence against their mother, accepted that there was a likelihood that psychological harm might be caused to them.  There could be little doubt that a second trial would compound that distress.  Unlike cases involving sexual offences, C1 and C2 would be required to give evidence at a new trial.  The provision of the Criminal Procedure Act 1986 (NSW) that protects vulnerable witnesses[119] does not permit the tender of a complainant's original evidence at a retrial of offences contrary to s 45 or s 59 of the Crimes Act.  Additionally, A2 and Ms Magennis have served the sentences imposed on them, and Mr Vaziri served three months of his sentence in full-time imprisonment and was then subject to strict bail conditions for a period of more than 13 months.

    [117]Peacock v The King (1911) 13 CLR 619; [1911] HCA 66; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630; [1984] HCA 48.

    [118]Jiminez v The Queen (1992) 173 CLR 572 at 584-585, 590‑591; R v Taufahema (2007) 228 CLR 232 at 256‑257 [55].

    [119]Section 306B(1).

86. These factors might be thought to point against an order for new trials. The dilemma which it might create for a court is that a verdict of acquittal does not seem appropriate either. It was, in part, to this difficulty that the parties' arguments concerning ss 6(2) and 8(1) were addressed. It seems to us that, in the special circumstances of this case, there may be another course open. It is to order a new trial and leave the question whether one be had to the discretion of the Crown.

87. There is, however, a question which is necessarily antecedent to considerations of this kind.  It is that mentioned earlier, whether there is sufficient evidence to warrant an order for a new trial.

    The test of sufficiency

88. The question of whether there is sufficient evidence to support a conviction is ordinarily to be determined in accordance with the test adopted[120] in Doney v The Queen:

    "[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.  Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

    [120](1990) 171 CLR 207 at 214-215; [1990] HCA 51; see also at 212-213, approving R v Prasad (1979) 23 SASR 161 at 162, Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 and R v R (1989) 18 NSWLR 74 at 77. See and compare R v Galbraith [1981] 1 WLR 1039 at 1042; [1981] 2 All ER 1060 at 1062.

89. The test in Doney stands in contrast to the test in M v The Queen[121] that is applied in the determination of whether a verdict is unreasonable or unsafe and unsatisfactory:

    "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations."[122]

    [121](1994) 181 CLR 487; [1994] HCA 63.

    [122]M v The Queen (1994) 181 CLR 487 at 493 (footnotes omitted).

90. Although consideration of the "interests of justice" may accommodate or require the application of this more stringent standard of review[123], at the first stage of the analysis consideration of the sufficiency of the evidence invokes the lesser standard identified in Doney.  Thus, in Peacock v The King[124], Barton J described[125] the question as being whether the evidence is "capable of the inference of guilt, albeit some other inference or theory be possible [and, if so] it is for the jury ... to say ... whether the inference ... overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds".  In Director of Public Prosecutions (Nauru) v Fowler[126], Gibbs CJ, Murphy, Wilson, Dawson and Deane JJ posed the question in terms of whether "the admissible evidence given at the original trial was sufficiently cogent to justify a conviction".  In Spies v The Queen[127], Gaudron, McHugh, Gummow and Hayne JJ stated the test in terms of whether "there is evidence to support the charge".

    [123]See JB v The Queen [No 2] [2016] NSWCCA 67 at [135].

    [124](1911) 13 CLR 619.

    [125]Peacock v The King (1911) 13 CLR 619 at 651-652; see also at 675.

    [126](1984) 154 CLR 627 at 630.

    [127](2000) 201 CLR 603 at 638 [104].

91. Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open[128].  If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence[129].  The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis[130].  Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution's case or that supports the accused's case[131].  That requires consideration of the evidence.

    [128]Doney v The Queen (1990) 171 CLR 207 at 213-214; Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415 and R v R (1989) 18 NSWLR 74 at 81, both citing Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151.

    [129]Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416.

    [130]Director of Public Prosecutions v Iliopoulos (Ruling No 3) [2016] VSC 132 at [8]-[9].

    [131]Doney v The Queen (1990) 171 CLR 207 at 214-215; R v R (1989) 18 NSWLR 74 at 81, 82; see also Glass, "The Insufficiency of Evidence to Raise a Case to Answer" (1981) 55 Australian Law Journal 842 at 845-846.

    The evidence

    i)        Admissions and matters not in dispute

92. At trial, the respondents defended the charges on a narrow basis.  They did not dispute (and, in the case of A2 and Ms Magennis, formally admitted in their Notices of Defence Response) that A2 was present in a room with the complainants on the relevant occasions while Ms Magennis examined and made contact with the complainants' genitalia during a "symbolic ceremony" that involved the placing of forceps on the vulva (not the clitoris) of the complainants without cutting them.  This procedure was described as "skin sniffing the steel".  Though Mr Vaziri was not present during the procedures, his defence was, in effect, common to that of A2 and Ms Magennis, because he did not dispute that he had assisted in covering up their actions. 

    ii)       C1's evidence

93. C1's evidence was adduced in the form of a recorded interview conducted by two members of the Joint Investigation Response Team ("the JIRT") on 29 August 2012 and supplemented by her oral testimony at trial.  During the interview, C1 was asked about "khatana [sic]".  When asked what the procedure involved, she stated that "[w]ell, they give um, a little cut there", by which she meant "[i]n your private part".  It is, as the Court of Criminal Appeal noted[132], to be observed that the concept of "cutting" was first introduced by the interviewer, as was the concept of "cutting to the private part".  Nevertheless, C1 explained that she knew what "khatana" was "[b]ecause it's happened to me".  She said that when she was seven years old she had had her private part cut by an unknown female at her grandmother's sister's house.  She told investigators that "my mum tells me not to go around telling everyone that much".

    [132]A2 v The Queen [2018] NSWCCA 174 at [25].

94. At trial, C1 said that during the procedure she had seen a "silver toolish thing" and that it looked a bit like scissors:  "it had sort of a point, a roundish stick sort of thing and two finger-holes I think.  I'm not sure."  C1 drew the implement and the drawing was tendered on the trial as Exhibit B.

95. Thereafter, C1 was told to close her eyes.  Consequently, she did not see the procedure occur.  But she knew something had happened because she felt "a bit of pain and then a weird sort of feeling" in her private parts.  She was unsure of the nature of the pain, describing it as like "a pinching or a cutting, I'm not sure", and, in re-examination, she said that "I don't really think it was a pinching, it just felt a bit like it.  ...  I'm not completely sure if it was cut, although it is most likely it was cut".  There was no lasting pain.  She saw no blood at that, or any other, time.  

96. C1 also stated that while the procedure was being performed there were a number of women, including A2 (her mother), A5 (her paternal grandmother), A3 (her paternal grandaunt) and another unknown female (on the Crown case, Ms Magennis) surrounding her to "calm [her] down".

    iii)      C2's evidence

97. Like C1, C2's evidence was adduced in the form of a recorded interview conducted by the same two members of the JIRT on 29 August 2012 and supplemented by her oral testimony at trial.  C2 had an intellectual disability and, as we have observed, on that and other bases the Court of Criminal Appeal allowed a ground of appeal alleging that she was not competent to give sworn evidence[133]. 

    [133]A2 v The Queen [2018] NSWCCA 174 at [881].

98. Nevertheless, in her JIRT interview C2 was asked the (admittedly leading) question, "[w]e heard that you had had a cut on your private parts.  Is that true?"  C2 answered, "[y]es".  When further questioned, C2 told the JIRT members that she remembered an occasion when she had been lying down on cushions in her parents' home and felt "[h]urting".  When asked where it hurt, she said "[i]n my bottom".  C2 was unable to identify "the private part" on a "body sketch", tendered as Exhibit C.  The Court of Criminal Appeal described the sketch as showing that the words "tummy" and "knee" were written with an arrow pointing to those parts of the body.  This Court has not been provided with a copy of that exhibit.

99. When asked whether she knew what khatna was, C2 indicated that she did not know.  When asked who else was home during the procedure, C2 said, "I don't want to tell you".

100. C1 also provided some limited evidence regarding the alleged offence against C2.  She said that the last time she saw the woman who had performed the procedure on her was "when she had to do that thing to my sister".  

     iv)Evidence of conversations recorded by listening device and telephone intercepts

101. There was a large body of covertly recorded evidence of conversations between A2, Ms Magennis, Mr Vaziri and other, uncharged persons such as A2's husband (A1), A1's aunt (A3), and a religious authority.  In brief, it consisted of evidence that was said to demonstrate that the respondents had an awareness of the practice of khatna and that they understood it to involve cutting[134]; and evidence said to demonstrate a consciousness of guilt (most notably concerning the "Africa checking story"[135] and A2's admonishment of the complainants, following their interviews, for revealing "a big secret").  It will be necessary to say something more of that evidence later in these reasons.

     v)        Medical evidence

     [134]The Court of Criminal Appeal described the "high point" of this evidence to be a conversation between A1 and A2 during the course of which A1 asked "[i]n us do they cut skin … or do they cut the whole clitoris?" and A2 responded, "[n]o they just do a little bit … just little".  There was debate as to whether this was a reference to what had happened to C1 or C2, or what happened in the wider Dawoodi Bohra community:  A2 v The Queen [2018] NSWCCA 174 at [72], [630].

     [135]One recorded telephone conversation tended to prove that Mr Vaziri had encouraged A1 to falsely tell police that he and A2 had arranged for Ms Magennis to attend and examine the children out of a concern to ensure that they had not been circumcised on a recent African holiday.

102. As noted earlier, expert medical evidence was given by Dr Marks, who clinically examined C1 and C2 in 2012, and Professors Jenkins and Grover, who interpreted Dr Marks' clinical findings and made other relevant observations.  In substance, their evidence fell into three broad categories:  evidence interpreting Dr Marks' inability to visualise the clitoral glans (the possibility of excision of the glans versus innocent possibilities, such as difficulty visualising the glans for ordinary developmental reasons)[136]; evidence regarding the degree of pain, bleeding and scarring one would anticipate if the clitoris or prepuce had been cut; and evidence regarding the anatomy of the clitoris and, specifically, whether the prepuce forms a part of the clitoris.

     vi)       The evidence of Dr X

     [136]This evidence falls away in view of the fresh evidence, admitted by the Court of Criminal Appeal, which demonstrated that upon subsequent examination the clitorises were capable of being seen. 

103. Dr X was a retired professor who had taught in Mumbai for 36 years in the areas of psychology and women's studies.  Her evidence regarding the practice of female genital mutilation within the Dawoodi Bohra community was based on a combination of academic research, interviews with participants in female genital mutilation procedures, and personal knowledge derived from her membership of the Dawoodi Bohra community and the experience of having been the victim of female genital mutilation as a child.  She gave evidence to the effect that the practice of khatna within the Dawoodi Bohra community in India involved the excision of a part of the clitoris or prepuce and that the practice within that community was "static", in the sense that it neither changed over time nor varied depending on the location of the community.  As has been seen, the Court of Criminal Appeal partially upheld a ground concerning the admissibility of Dr X's evidence, and the appellant did not seek to impugn that holding in this Court.  That eliminates the capacity of Dr X's evidence to prove what procedure was conducted.

     vii)     Miscellaneous exculpatory evidence

104. The Court of Criminal Appeal noted the existence of numerous items of, at least arguably, exculpatory evidence.  They included representations recorded in the surveillance material which were consistent with discussion by the respondents of a symbolic ceremony; evidence of A3, that on the day of C1's procedure A2 had told her she wanted to conduct a "symbolic khatna" and that A3 had heard Ms Magennis tell C1 words to the effect of, "it won't hurt you.  I'm just going to touch you"; and evidence of Ms Magennis, who positively asserted the defence hypothesis.  In answer to C1's evidence of experiencing some transient pain during the ceremony, Ms Magennis gave evidence that she, Ms Magennis, was an insulin-dependent diabetic, that she had performed the procedure when she had not eaten, that she was, therefore, probably hypoglycaemic, and that her hands had been shaking, so as to suggest in effect that she, Ms Magennis, might have pinched or pressed against C1's genital area, thereby causing pain accidentally.

     Evidence sufficient to convict

168. It might be doubted whether the Minister's comments in the Second Reading Speech should be best understood to have been suggesting that the practice of female genital mutilation in 1994 was limited only to these three forms. But even if that were the Minister's understanding, and even if it were also the earlier understanding of the World Health Organization, those understandings of the forms of the practice should not conclusively define the scope of s 45(1)(a), which is not expressly confined to any particular forms of female genital mutilation but appears, instead, by the catch-all "or otherwise mutilates" to be intended to encompass any type of the practice.

169. Where legislation does not expressly delimit the scope of its application then its scope is usually to be determined by the contemporary application of its essential meaning that will best give effect to the legislative purpose.  This is what is meant by statutes "always speaking".  In Aubrey v The Queen[216], this Court considered the meaning of the phrase "[w]hosoever maliciously by any means ... inflicts grievous bodily harm" in s 35(1)(b) of the Crimes Act, as it was then.  One submission in that case was that the reckless transmission of sexual diseases did not, at the time that the provision was enacted, fall within the ordinary understanding of "inflicting" harm.  In a joint judgment, a majority of this Court said that even if this were correct (which it was not)[217]:

     "subsequent developments in knowledge of the aetiology and symptomology of infection have been such that it now accords with ordinary understanding to conceive of the reckless transmission of sexual disease by sexual intercourse without disclosure of the risk of infection as the infliction of grievous bodily injury".

     [216](2017) 260 CLR 305.

     [217](2017) 260 CLR 305 at 320 [24].

170. In Aubrey, the generality of the language of s 35(1)(b) of the Crimes Act[218], applied consistently with the legislative purpose that was particularly evident in the use of the words "by any means"[219], required the word "inflicts" to be interpreted with an essential meaning cast at a high level of generality.  So even if the submission about the ordinary understanding of "inflicts" in 1900 were correct, the Court would not have been constrained by that limited understanding.  Instead, the essential meaning of the provision was to be applied to give best effect to the purpose of the provision consistently with contemporary knowledge and understanding.  The essential meaning would not, and does not, change[220].  But its application can change.  As Lord Bingham of Cornhill colourfully expressed this point[221]:

     "There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now."

     [218](2017) 260 CLR 305 at 326 [40].

     [219](2017) 260 CLR 305 at 323-324 [34].

     [220]Compare Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433 at 443 [27]; [2011] 1 All ER 912 at 923.

     [221]R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at 695 [9].

171. It is, therefore, vital to express the essential meaning at the proper level of generality, having regard to statutory purpose. Properly characterised, the essential meaning of the practice of female genital mutilation captured by the words "otherwise mutilates" in s 45(1)(a) is all actions involving a practice of causing tissue damage to the genitals of female children. The purpose of s 45(1)(a) was to proscribe any forms of that practice. It was not to proscribe only some forms of the practice. Nor was it only to proscribe the particular forms of the practice that were best known in 1994. Indeed, since 1982, the World Health Organization had been advocating for governments to "adopt clear national policies to abolish the practice of female genital mutilation"[222] and was "committed to the abolition of all forms of female genital mutilation"[223].  The World Health Organization in 1998 adopted a classification that covered all those forms including a type that it described as "[u]nclassified:  includes pricking, piercing ... stretching ... cauterization by burning ... scraping of tissue"[224].

     [222]See World Health Organization, Female genital mutilation:  An overview (1998) at 59-60.

     [223]World Health Organization, Female genital mutilation:  An overview (1998) at 5.

     [224]World Health Organization, Female genital mutilation:  An overview (1998) at 6.

172. The Family Law Council Report, a draft of which was before Parliament at the time the Crimes (Female Genital Mutilation) Amendment Bill 1994 (NSW) was debated, had also recommended prohibition of all female genital mutilation, describing it as involving "all types of the practice where tissue damage results"[225].  The Family Law Council had quoted from a report published in New Scientist which said that[226]:

     "[i]n reality the distinction between the types of circumcision is often irrelevant since it depends on the sharpness of the instrument used, the struggling of the child, and the skill and eyesight of the operator".

     [225]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (1994) at 6 [2.02].  See also Family Law Council, Female Genital Mutilation:  Discussion Paper (1994) at 28 [5.22], 31 [6.05(b)].

     [226]Family Law Council, Female Genital Mutilation:  A Report to the Attorney-General prepared by the Family Law Council (1994) at 6 [2.01], quoting Armstrong, "Female circumcision:  fighting a cruel tradition" (2 February 1991) New Scientist 22 at 22.

173. Against this background, the Minister's remarks in the Second Reading Speech concerning proscribing the practice, which "has no physical benefits and is associated with a number of health hazards"[227], are remarks that reveal a purpose extending beyond any particular or common forms of the practice to any example of the practice that involves tissue damage to the genitals of female children. Whatever the understanding of the Minister or others about the particular existing forms of the practice of female genital mutilation, and whether or not any new or unforeseen forms of the practice arise, the purpose of s 45(1)(a) was likewise intended to extend to every form of the practice of female genital mutilation, namely any actions which result in tissue damage to the genitals of female children.

     [227]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 1994 at 1859.

174. The approach of the Court of Criminal Appeal implicitly, and correctly, recognised that the practice of female genital mutilation, described in s 45(1)(a) by the verbs "excises", "infibulates", and "otherwise mutilates", was not confined to the three categories described by the Minister in the Second Reading Speech. The Court of Criminal Appeal applied the meaning of female genital mutilation as encompassing any "injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion"[228]. With respect, however, this does not sufficiently apply the legislative purpose. Instead, it confines the proscribed practices by references to criteria that might be difficult to apply, including thresholds of "superficial" and "irreparable damage" or "imperfection". To conform with the legislative purpose, the prohibition on all forms of the practice of female genital mutilation must extend to all actions involving tissue damage to the genitals of female children. The trial judge therefore did not err when directing the jury that "mutilate" in s 45(1)(a) means "to injure to any extent".

     [228]A2 v The Queen [2018] NSWCCA 174 at [521].

     Can a conviction be quashed with no further order made?

175. I agree with Kiefel CJ and Keane J, for the reasons that their Honours give[229], that the appropriate order on these appeals is that each matter be remitted to the Court of Criminal Appeal for determination of Ground 2 of each respondent's appeal to that Court according to law.  Strictly, it is therefore not necessary for this Court to resolve the dispute between the parties about the orders that can be made in the Court of Criminal Appeal in light of the success of other grounds of appeal in the Court of Criminal Appeal that were not in issue in this Court.  That dispute arose in this Court because the Crown submitted that the Court of Criminal Appeal was confined to making either of two sets of orders:  (i) orders quashing the conviction and directing a judgment and verdict of acquittal to be entered, or (ii) orders quashing the conviction and directing that a new trial be had.  In contrast, the respondents submitted that another alternative was (iii) to quash the conviction but to make no further order.

     [229]At [112]-[115].

176. Although it is not strictly necessary to determine this point, it is a point that is a matter of considerable importance.  It could affect the orders of the Court of Criminal Appeal on remitter.  This Court has also previously made orders quashing a conviction without any further order on numerous occasions without apparently considering whether it had power to do so[230].  It is therefore appropriate to explain in detail why I have concluded that there is no power for the Court of Criminal Appeal to quash the conviction without either directing a judgment and verdict of acquittal or ordering a new trial.

     [230]Callaghan v The Queen (1952) 87 CLR 115; [1952] HCA 55; Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48; Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66; Calabria v The Queen (1983) 151 CLR 670; [1983] HCA 33; Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8; Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31.

177. The Crown's submission is based in the text of ss 6(2) and 8(1) of the Criminal Appeal Act 1912 (NSW). Each of those sub-sections is enlivened where the Court of Criminal Appeal allows an appeal under s 6(1). Section 6(2) is a default provision because it is subject to "the special provisions of this Act". If the appeal is allowed, the default provision in s 6(2) requires the Court to quash the conviction and to direct a judgment and verdict of acquittal. However, one of the special provisions to which s 6(2) is subject is s 8(1), which permits the Court to:

     "... order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."  (emphasis added)

178. The question raised by the Crown's submission is therefore whether an order that the conviction be quashed, without any further order, is an order "which the court is empowered to make".  There is no express power to make only that order.  Such a power, if it exists, must be an implied power, an inherent power in the sense of part of "the well of undefined powers" beyond its constitution[231] or a power "inherited"[232] by the Supreme Court of New South Wales and which s 3(1) of the Criminal Appeal Act preserves when the Supreme Court is constituted as the Court of Criminal Appeal.

     [231]Grassby v The Queen (1989) 168 CLR 1 at 16; [1989] HCA 45.

     [232]Dockray, "The Inherent Jurisdiction to Regulate Civil Proceedings" (1997) 113 Law Quarterly Review 120 at 122.  See also R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7, "the power which a court has simply because it is a court of a particular description"; [1972] HCA 34.

     No implied power to quash a conviction without further order

179. Of necessity[233], there is an implied power, upon which s 8(1) relies, for an appellate court to make an order quashing a conviction. An order quashing a conviction is logically anterior to the power in s 8(1) to order a retrial. But there is no necessity to imply a power to make an order quashing the conviction without either ordering a retrial or ordering an acquittal. There are no gaps in the remedial scheme of the Crimes Act that would reasonably require such a power.  First, if a retrial is not appropriate then an order for acquittal can be made even if the appellate court considers that the appellant is probably guilty.  Secondly, a retrial can be ordered or an acquittal entered even if the conviction arose from a trial that might attract the description of a "nullity".

     [233]Byrnes v The Queen (1999) 199 CLR 1 at 20 [32]; [1999] HCA 38; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 [51]; [1999] HCA 19.

180. As to the first point, s 6(2) of the Criminal Appeal Act was modelled on the relevantly identical s 4(2) of the Criminal Appeal Act 1907 ("the 1907 English Act")[234].  As Professor Kenny observed of the direction to enter a judgment and verdict of acquittal in s 4(2) of the 1907 English Act, "a New Trial, unfortunately, cannot be ordered; even though the prisoner be obviously guilty"[235].  Despite the contradiction involved in declaring a person who is believed to be obviously guilty to be not guilty when the person's conviction is quashed, the purpose of the power was to vindicate the principle against multiple exposure to jeopardy[236].  Subject to statutory provisions to the contrary, this principle was vindicated in a court of record by an order for acquittal, which would permit a plea of autrefois acquit in a subsequent prosecution of the accused for the same offence[237].

     [234]7 Edw VII c 23.

     [235]Kenny, Outlines of Criminal Law, 4th ed (1909) at 493, fn 1.

     [236]Gerakiteys v The Queen (1984) 153 CLR 317 at 322.

     [237]Pearce v The Queen (1998) 194 CLR 610 at 627-628 [61]; [1998] HCA 57; see also at 617 [22]. See also Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at 336 [15]; [2006] HCA 30.

181. In a number of judgments of the Court of Criminal Appeal of England and Wales, English judges lamented that after a miscarriage of justice the acquittal of those who might be guilty could mean that "crimes go unpunished"[238].  The Lord Chief Justice said that a power to order a new trial was needed as a matter of "absolute necessity"[239], although he remarked in another case that such a power "would naturally be rarely exercised"[240], perhaps reflecting a view held at that time that punishment of the guilty was generally a lesser concern than successive exposures of a person to the prospect of conviction[241].  The gap that was perceived by the Court of Criminal Appeal of England and Wales after the enactment of the 1907 English Act was the lack of a power to order a new trial.  It was not the lack of a power to quash a conviction with no order for acquittal.  In 1912, in New South Wales, the Criminal Appeal Act filled that gap by including the power in s 8(1) to order a new trial, paying heed to the lamentations of the Court of Criminal Appeal of England and Wales and also to the position in Canada[242].

     [238]Joyce (1908) 1 Cr App R 142 at 143. See also Hampshire (1908) 1 Cr App R 212 at 213.

     [239]Stoddart (1909) 2 Cr App R 217 at 245.

     [240]Joyce (1908) 1 Cr App R 142 at 143.

     [241]See Pearce v The Queen (1998) 194 CLR 610 at 614 [10], quoting Green v United States (1957) 355 US 184 at 187-188. Compare R v Taufahema (2007) 228 CLR 232 at 254-255 [49]-[51]; [2007] HCA 11.

     [242]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 5 December 1911 at 2307-2308.

182. As to the second point, an implication of power to quash a conviction without further order was considered necessary by the Supreme Court of Canada in the limited circumstance where the trial is found to have been a mistrial, so that the trial was a "nullity".  Speaking of the provision applicable in Canada in 1923 empowering orders of acquittal or the grant of a new trial[243], Fateux J, with whom the rest of the Supreme Court of Canada agreed on this point, said[244]:

     "That there will be cases where the Court of Appeal will not order one or other of the alternatives is certain.  Thus a conviction on an indictment signed by an unauthorized person cannot be sustained and must be quashed.  And in such a case, an order, either directing a verdict of acquittal to be entered or a new trial, would be meaningless and senseless.  It cannot, therefore, be stated that this further authority is given with respect to trials affected with such complete and fatal nullity."

     [243]An Act to amend the Criminal Code, 13-14 Geo V, c 41, s 9.

     [244]Welch v The King [1950] SCR 412 at 425.

183. With respect, the direction of a verdict of acquittal when a trial is found to be a mistrial and a "nullity" is not necessarily meaningless or senseless.  Whatever might be meant in this context by the concept of a "nullity", an issue considered later in these reasons, the trial was a real event and prior to the quashing of the conviction there was nevertheless a conviction recorded.  The recorded conviction was a fact which provided a sufficient basis for an appeal to be brought[245].  Equally, a recorded acquittal could be a meaningful fact, not least as vindication to the appellant.

     [245]Russell v Bates (1927) 40 CLR 209 at 213-214; [1927] HCA 56; Calvin v Carr [1979] 1 NSWLR 1 at 8-9. See also Crane v Director of Public Prosecutions [1921] 2 AC 299 at 319.

184. Subject to statutory exceptions, one reason that a recorded acquittal is meaningful even in cases of "nullity" is that a defence of autrefois acquit should apply to preclude a subsequent trial where an acquittal is entered by an appellate court.  Historically, this defence was not available when the acquittal was entered by the court at which the trial was a "nullity".  This was said to be based upon a supposition that in hindsight the accused had "never been in actual jeopardy"[246].  Yet, as Coleridge J recognised, notwithstanding any defect in the trial the accused remained liable to a conviction, which, unless reversed, would put him "in so much jeopardy literally that punishment may be lawfully inflicted on him".  The other rationale was that "[t]he judgment reversed is the same as no judgment"[247]:  reasoning that should apply to any conviction that is set aside, whether the trial is characterised as a "nullity" or not[248].  Just as a conviction is sufficient to enable an appeal to be brought whether or not the trial was a mistrial, an acquittal entered by the appellate court after setting aside the conviction should be sufficient for the purpose of raising a defence of autrefois acquit upon a subsequent prosecution whether or not the trial was a mistrial[249].

     [246]Coke, The Third Part of the Institutes of the Laws of England (1644) at 214; Chitty, A Practical Treatise on the Criminal Law (1816), vol 1 at 756.  See also Conway v The Queen (2002) 209 CLR 203 at 209-210 [9]; [2002] HCA 2.

     [247]R v Drury (1849) 3 Car & K 190 at 199 [175 ER 516 at 520].

     [248]See also Friedland, "New Trial after an Appeal from Conviction – Part II" (1968) 84 Law Quarterly Review 185 at 188-189.

     [249]Cooke, "Venire de Novo" (1955) 71 Law Quarterly Review 100 at 119-120.

185. It is also neither meaningless nor senseless for an order for a new trial to be made even if the first trial might be described as a "nullity". The power in s 8(1) for the Court of Criminal Appeal to order a new trial "in such manner as it thinks fit" might require particular orders to be made such as that the trial be on a new indictment or before a different judge.

     No inherent or inherited power to quash a conviction without further order

186. In Crane v Director of Public Prosecutions[250], the majority of the House of Lords held that a pre-existing power of the Court of Crown Cases Reserved, preserved when the Court of Criminal Appeal of England and Wales was created, empowered the Court of Criminal Appeal to make orders for a new trial where the first trial was a mistrial or "nullity".  This power to order a venire de novo (a new hearing)[251] had been a power possessed by the Court of Crown Cases Reserved, which was formally created in 1848[252].  The venire de novo was granted by the Court of Crown Cases Reserved only when the first trial was found to be a "nullity".  As the King's Bench had described the order, it was "not to be considered in the nature of a new trial, but the first trial is to be considered a mis-trial, and therefore a nullity"[253].

     [250][1921] 2 AC 299 at 319, 324, 330, 333. See also R v Granberg (1973) 11 CCC (2d) 117 at 121.

     [251]See R v Yeadon and Birch (1861) Le & Ca 81 [169 ER 1312]. See also R v Mellor (1858) Dears & B 468 [169 ER 1084].

     [252]Crown Cases Act 1848 (11 & 12 Vict c 78), s 2.  Compare R v Parry, Rea and Wright (1837) 7 Car & P 836 at 841 [173 ER 364 at 367]. See also Conway v The Queen (2002) 209 CLR 203 at 210 [10], fn 38.

     [253]R v Fowler and Sexton (1821) 4 B & Ald 273 at 276 [106 ER 937 at 939], quoted in Conway v The Queen (2002) 209 CLR 203 at 209 [9].

187. The power to order a venire de novo after a mistrial was inherited by Supreme Courts in Australia.  It was described in 1915 by Isaacs J as "well established", although Griffith CJ described it as "now almost obsolete"[254].  In Crane, the majority of the House of Lords relied upon s 20(4) of the 1907 English Act to hold that this power was vested in the Court of Criminal Appeal of England and Wales[255].  Section 20(4) vested in the Court of Criminal Appeal all the jurisdiction that had been vested in the Court of Crown Cases Reserved by the Crown Cases Act 1848[256].

     [254]R v Snow (1915) 20 CLR 315 at 324, 351; [1915] HCA 90.

     [255][1921] 2 AC 299 at 324, 332, 337-338.

     [256]11 & 12 Vict c 78.  The powers conferred by the Crown Cases Act had been transferred to the High Court of Justice by s 47 of the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66).

188. The House of Lords in Crane was concerned only with the existence of a power which, upon a mistrial, permitted only the quashing of a conviction and order for a retrial.  But the Court of Crown Cases Reserved also had the power to quash a conviction and to make no further order.  Indeed, unlike the power to grant a venire de novo, which was not expressly contained in the Crown Cases Act and whose existence had divided the members of the Court of Crown Cases Reserved[257], s 2 of the Crown Cases Act had conferred an express power "to avoid such Judgment, and to order an Entry to be made on the Record, that ... the Party convicted ought not to have been convicted".  Hence, the Court of Criminal Appeal of England and Wales also had power, after a mistrial, to quash the conviction and make no further order[258].

     [257]See R v Mellor (1858) Dears & B 468 [169 ER 1084].

     [258]Golathan (1915) 11 Cr App R 79 at 80; King (1920) 15 Cr App R 13 at 14; McDonnell (1928) 20 Cr App R 163 at 164; Wilde (1933) 24 Cr App R 98 at 99; Olivo (1942) 28 Cr App R 173 at 176; Field (1943) 29 Cr App R 151 at 153; R v Heyes [1951] 1 KB 29 at 30. See Cooke, "Venire de Novo" (1955) 71 Law Quarterly Review 100 at 118-120.

189. If the powers of the Court of Crown Cases Reserved were also inherited by the Court of Criminal Appeal in New South Wales as appeal powers, due to being preserved by the Criminal Appeal Act, then there would be a strong argument that the power to quash a conviction without making any other order should be generally applicable.  It would be difficult to see why that power, as part of a generalised appellate power, should be confined only to mistrials.  To confine the power in that way would treat as immutable the reception of "a procedure which, with the exception of a few cases, has not been in use for over one hundred years and was probably never really understood even when it was in use"[259].  The distinction between mistrials where a conviction is quashed as a "nullity" and other trials where a conviction is quashed, sometimes described in contrast as an "irregularity", has been attempted to be justified in different ways[260].  None is satisfactory or clear[261].  At best, "the line is very thin"[262], with the older decisions on nullity perhaps seen today as comparable with some instances of lack of authority and possibly also some serious errors within authority.  At worst, it is not a principled distinction in the context of an appeal from a trial in a superior court[263].  In both instances, the verdict and judgment will have been quashed by the Court of Criminal Appeal, leaving them without effect:  "The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal."[264]  And in both instances, the orders are valid until set aside[265].

     [259]Friedland, "New Trial after an Appeal from Conviction – Part I" (1968) 84 Law Quarterly Review 48 at 63 (footnote omitted).

     [260]Munday v Gill (1930) 44 CLR 38 at 60-62; [1930] HCA 20; R v Middlesex Quarter Sessions (Chairman); Ex parte Director of Public Prosecutions [1952] 2 QB 758 at 769; R v Neal [1949] 2 KB 590 at 599; In re Pritchard, decd [1963] Ch 502 at 523-524; Strachan v The Gleaner Co Ltd [2005] 1 WLR 3204 at 3211-3212 [25]-[26].

     [261]See Cooke, "Venire de Novo" (1955) 71 Law Quarterly Review 100; Friedland, "New Trial after an Appeal from Conviction – Part I" (1968) 84 Law Quarterly Review 48.

     [262]Plowman v Palmer (1914) 18 CLR 339 at 348; [1914] HCA 41.

     [263]R v Swansson (2007) 69 NSWLR 406 at 417 [76]; see also at 420 [95], 424 [119]; compare at 435 [179]-[180], 437 [191]. See also Deveigne v Askar (2007) 69 NSWLR 327 at 343 [82]; see also at 331 [8].

     [264]Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; [1935] HCA 45.

     [265]New South Wales v Kable (2013) 252 CLR 118 at 129 [21]; [2013] HCA 26. See also Bounds v The Queen (2006) 80 ALJR 1380 at 1383 [10]; 228 ALR 190 at 193; [2006] HCA 39.

190. However, the issue of whether a distinction should be drawn between powers concerning mistrials and powers concerning irregularities need not be resolved on these appeals because in New South Wales the Criminal Appeal Act did not preserve, for appeals, the jurisdiction of the Court of Crown Cases Reserved to quash a conviction without further order.  Like s 20 of the 1907 English Act, in New South Wales s 23 of the Criminal Appeal Act abolished "[w]rits of error, and the powers and practice now existing in the Supreme Court in respect of motions for new trials, and the granting thereof in criminal cases".  But the Criminal Appeal Act had, and has, no equivalent to s 20(4) of the 1907 English Act, upon which the majority of the House of Lords in Crane relied for the preservation of the venire de novo and associated powers.

191. Section 12 of the Criminal Appeal Act, entitled "Supplemental powers of the court", provides in sub-s (1) that the Court of Criminal Appeal "may, if it thinks it necessary or expedient in the interests of justice", exercise specific procedural powers and may also "exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters". Section 12(1) is similar to s 9 of the 1907 English Act. But it is not an acknowledgement of any inherent jurisdiction of the Court of Criminal Appeal, nor does it permit a cross-pollination of the considerations concerning a venire de novo from civil proceedings to criminal proceedings. As Dixon J said in Grierson v The King[266]:

     "The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers.  The Criminal Appeal Act of 1912 (NSW) is based upon the English Act of 1907.  It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources ...  No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings."

     [266](1938) 60 CLR 431 at 435-436; [1938] HCA 45.

192. In New South Wales, the dissenting reasoning of Viscount Finlay in Crane must apply:  "we must now look only to the provisions of the present Act if there is anything that requires to be set right"[267].  Indeed, the New South Wales Parliament was cognisant that this would be the case.  During debate, one member, Mr Garland KC, after referring to the power to grant a new trial after a mistrial, said that he supported "the proposal that the Appeal Court in their wisdom, when they consider justice would be best served by granting a new trial, shall have power to grant it"[268].

     [267]Crane v Director of Public Prosecutions [1921] 2 AC 299 at 318.

     [268]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 5 December 1911 at 2312.

     Conclusion

193. For these reasons, in addition to those of Kiefel CJ and Keane J and those of Nettle and Gordon JJ, I agree with the orders proposed by Kiefel CJ and Keane J.