R v A2; R v KM; R v Vaziri (No. 2)

1. [1]

   JOHNSON J: The Accused, A2, KM and Shabbir Mohammedbhai Vaziri, have each pleaded not guilty to charges, including allegations of female genital mutilation (“FGM”) contrary to s.45(1)(a) Crimes Act 1900 and assault occasioning actual bodily harm under s.59 of that Act.

2. [2]

   A number of pretrial applications were identified and the Court has been in the process of hearing and determining those applications. The parties formed the view that a particular issue was of significance to the proceedings generally and requested that it be dealt with as a matter of priority. The Court acceded to this request.

The Present Issue

1. [3]

   This issue concerns the directions to be given to the jury, in the circumstances of the present case, concerning the meaning of certain words in s.45 Crimes Act 1900. In particular, attention was focused upon the meaning of the words “otherwise mutilates” in s.45(1).

2. [4]

   In the circumstances of this case, the Court was satisfied that it was appropriate to deal with this topic as a pretrial issue. In doing so, the Court is not considering an application for the exceptional remedy of a permanent stay based upon a claim that the charges are foredoomed to fail: Agius v R [2011] NSWCCA 119; 80 NSWLR 486 at 490 [15]-[19]. Nor is the Court engaging in a process of fact finding in advance of the trial or seeking to determine whether the Crown has a case that should be left to a jury: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215.

3. [5]

   Rather, the Court is construing relevant words in s.45, a legal function, with some reference to evidence to be adduced in the trial to provide some context, meaning and understanding to the elements of the s.45 offence in this case. This is being done to aid the formulation of directions to be given to a jury concerning the elements of the offence.

4. [6]

   I will refer to the charges and allegations against the Accused persons as contained in the Crown Case Statement (“CCS”) before moving to the terms of s.45, the submissions made concerning its proper construction and my decision on the construction questions and proposed directions to be given to a jury at the trial of the Accused persons.

The Charges Against the Accused Persons

1. [7]

   KM is charged with the following offences:

2. [8]

   A2 is charged with the following offences:

3. [9]

   Mr Vaziri is charged with the following offences:

A Short Introduction to Relevant Persons and Events Drawn from the CCS

1. [10]

   The Accused in this matter are:

2. [11]

   The Accused are members of the Dawoodi Bohra community. The Dawoodi Bohra community is a world-wide subsect of Shia Islam. “Khatna” is a term used within the community to describe circumcision.

3. [12]

   On 19 July 2012, a report was received by the Department of Family and Community Services stating that a procedure amounting to FGM had been performed on a child in the Dawoodi Bohra community.

4. [13]

   Thereafter, an investigation was undertaken in which C1 and C2 were spoken to in recorded interviews.

5. [14]

   C1 was born on 19 October 2003. It is the Crown case that FGM was performed upon C1 between October 2009 and August 2012.

6. [15]

   C2 was born on 26 October 2005. It is the Crown case that FGM was performed upon C2 between January 2012 and August 2012.

7. [16]

   It is the Crown case that A2 was present during the FGM procedure conducted by KM on each of the girls, and that she encouraged KM to perform the FGM procedures. The Crown contends that A2 is liable for the FGM procedure conducted on her daughters as she was an accessory before the fact, a principal in the second degree and a party to a joint criminal enterprise with KM.

8. [17]

   It is the Crown case that KM performed the FGM procedure on each of the girls and is a principal in the first degree.

9. [18]

   The Crown contends that Mr Vaziri encouraged witnesses to lie in their police interviews and encouraged members of the community to tell Police that they did not believe in or practise female circumcision. On the Crown case, such actions were performed, directly or indirectly, to assist A2 and KM in avoiding police detection. As such, the Crown contends that Mr Vaziri was an accessory after the fact to the offences of A2 and KM.

An Extended Account of the Crown Case Against the Accused Persons

1. [19]

   It is appropriate to set out, in some detail, the case against the Accused persons, drawn principally from the CCS. This will serve to place the Crown allegations in context. Some reference will also be made to proposed medical evidence. Counsel referred to aspects of this proposed evidence in submissions made on the present statutory construction issue.

2. [20]

   The CCS recites the circumstances in which an investigation of the Accused persons commenced in July 2012 and steps taken to progress the investigation, including interviews and the use of surveillance device warrants and telephone interception warrants.

3. [21]

   On 9 September 2012, A2 participated in interviews with Police and was charged with offences under s.45 Crimes Act 1900.

4. [22]

   On 13 September 2012, KM was charged with two counts under s.45 Crimes Act 1900. She exercised her right to silence and did not participate in an interview.

5. [23]

   On 13 September 2012, Mr Vaziri participated in an interview with Police and was charged with two counts of being an accessory after the fact to FGM contrary to s.45 Crimes Act 1900.

6. [24]

   The CCS recites the interviewing of other persons, some of whom were charged with charges being later withdrawn or discharged at committal proceedings. It is not necessary to refer to these features in this judgment.

7. [25]

   The CCS (paragraphs 16-31) summarises the Crown allegations with respect to the FGM procedures.

8. [26]

   On 29 August 2012, C1 (born 19 October 2003) was interviewed at her school by Detective Senior Constable Christine McDonald and a FACS case worker, Alison Wishart. No other person was present during the videotaped interview. C1 was eight years and 10 months old at the time. (A DVD recording of this interview is a pretrial exhibit, Exhibit PTF, as is a transcript of the interview, Exhibit PTA, Tab 4).

9. [27]

   During her interview, C1 explained her knowledge of the term “Khatna”. She stated that “Khatna” was when “they give you a little cut down there”. She explained that she knew what “Khatna” was “because it’s happened to [her]”, detailing that when she was seven years old, she had her private part cut by an unknown female at her grandmother’s house.

10. [28]

    C1 recalled being taken into a bedroom and placed on to a bed. She described that, before the procedure took place, she was “nervous” and was told to “imagine a place” she liked. C1 chose to picture herself as a “princess in a garden”.

11. [29]

    C1 told Police that “it hurt” when her “private part [was] cut”. The CCS indicates that it is unknown whether C1 was anaesthetised during the procedure, however she recalled opening her eyes stating that “because of imagining the garden I felt a bit funny and I felt I was on a bed in the garden with them all around but I shook my head a bit”. She also stated that she “felt happy because it was over”.

12. [30]

    C1 also stated that whilst this procedure occurred there were a number of women, including her mother, A2, A5 (her paternal grandmother), A3 (her paternal grandaunt) and another unknown female surrounding her to “calm [her] down”. On the Crown case, the unknown female was KM.

13. [31]

    Following the procedure, C1 recalled being told to drink lots of water and being handed a glass of lemonade before being taken to have a shower. She remembered being “scared” of the shower, as she thought it was going to hurt.

14. [32]

    During her interview, C1 also provided Police with information regarding the procedure being conducted on her younger sister, C2. She stated that the last time she saw the person who performed the procedure on her was “when she had to do that thing to my sister”.

15. [33]

    When questioned further about C2’s procedure, C1 believed it had occurred “some time this year” (2012). She stated that she had travelled to Auburn with her mother and her sisters where they met the unknown woman who had previously performed the procedure on her. C1 then had to travel with the unknown woman, directing her back to the family home in Baulkham Hills.

16. [34]

    C1 recalled watching a movie downstairs in her home with C2, and a male child who accompanied the unknown lady (said to be the grandson of KM). Whilst they were watching the movie, A2 called out for C2 to come upstairs. C1 then saw C2 go upstairs, where she believes she was with the unknown female, her mother and A4 (her paternal aunt).

17. [35]

    I have overruled an objection by C1 to giving evidence against her mother, A2, under s.18 Evidence Act 1995. Accordingly, the evidence of C1 will be before a jury at the forthcoming trial.

18. [36]

    C2 (born 26 October 2005) was also interviewed at her school by Detective Senior Constable McDonald and Ms Wishart on 29 August 2012. She was six years and 10 months old at that time. (A DVD recording of this interview is a pretrial exhibit, Exhibit PTB, as is a transcript of the interview, Exhibit PTA, Tab 5).

19. [37]

    During her interview, C2 indicated that a procedure was conducted on her, in her parents’ room, in her home in Baulkham Hills. She recalled lying down on a white cushion and stated that she “felt hurting in her bottom”.

20. [38]

    C2 could not particularise who was in the room at the time the procedure took place. She also could not state who conducted the procedure, only saying that it was “a woman”.

21. [39]

    After the procedure, C2 recalls speaking to her father, A1, who told her “it’s OK”. C2 also believed she spoke to her sister about the procedure, but she could not recall what was said.

22. [40]

    I have held that C2 is competent to give sworn evidence and have overruled an objection by C2 to giving evidence against her mother, A2, under s.18 Evidence Act 1995. Accordingly, the evidence of C2 will be before a jury at the forthcoming trial.

23. [41]

    It is the Crown case that C2’s FGM procedure took place during the July 2012 winter school holidays. During this time, call charge records show that A2 contacted KM seven times between 26 June and 18 July 2012.

24. [42]

    On 3 September 2012, C1 and C2 were examined by Dr Susan Marks from the Child Protection Unit at Westmead Children’s Hospital. Dr Marks was unable to confirm or deny whether the girls had been circumcised. She has reported that she cannot exclude that a Type 1 or Type 4 FGM procedure (under the World Health Organisation (“WHO”) guidelines) (see [204] below) had been conducted, as she could not visualise the head of the clitoris on either child.

25. [43]

    Dr Marks asserts that if there had been a small cut to the head of the clitoris, it would have been painful at the time, but would have healed in three to five days. Dr Marks also confirmed that any cut or nick to the clitoris would include, at the very minimum, the removal of skin cells.

26. [44]

    In reports prepared for these proceedings (part Exhibit PTJ), Dr Marks said that the procedures said to have been carried out on C1 and C2 could have included:

27. [45]

    According to the CCS (paragraph 31), a cultural expert and member of the Dawoodi Bohra community, states that “the practice of Khatna [within the Dawoodi Bohra community] is a small cut to the tip of the clitoris and the chances of scarring would be slim”. She asserts that it is only when Dawoodi Bohra women get older that they start to realise the problems “regarding the sensitivity and hyper sensitivity” caused by their circumcision. The admissibility of the evidence of this witness is presently under challenge.

28. [46]

    At 2.18 pm on 29 August 2012, Ms Wishart advised A2 via telephone that C1 and C2 had been interviewed. At that time, Ms Wishart arranged for A1 and A2 to attend the Parramatta Child Abuse Squad at 4.30 pm that day for a voluntary interview with herself and Detective Senior Constable McDonald.

29. [47]

    When A2 collected C1 and C2 from school on 29 August 2012, she spoke to the children about their interviews. When C1 explained what she told the Police, A2 responded "yes ok. You told them everything. I told you not to say, any one. I told you not to say. Now we are in trouble because of this. I told you this is a big secret. This is what she came to find out. Now we are in trouble because of that. We told you my child this is a big secret, never tell anyone". This conversation was recorded by the surveillance device issued under the Surveillance Devices Act 2008 that had been placed in the vehicle being driven by A2 at that time.

30. [48]

    Later on in the afternoon, another conversation took place between A1, A2, C1 and C2 whilst the family were travelling in a different vehicle. During this conversation (also recorded under warrant), A1 tried to convince C1 that she had not been “cut” to which C1 responded “yes, once they asked for scissors … I saw scissors … they do something with scissors'? She asked me don't we do with scissors … do not we do with scissors with something?”.

31. [49]

    After dropping C1 and C2 with a carer, A1 and A2 drove to the Parramatta Child Abuse Squad. Whilst they were still in the vehicle on their way to the interview, A1 told A2, “we can say that, yes we called this lady for check up to make sure that they haven't had anything done. Say this way, that we called to check them if anything is being done, because they go to Africa and is been done there. We go to India and Africa and we always do up there. … When they came for check up, we called all the family members and she knows that lady as she is nurse. She is used to, and we normally the ladies don't check children as it is not our subject the children …”.

32. [50]

    Once at the Parramatta Child Abuse Squad, A1 and A2 were interviewed separately by Detective Senior Constable McDonald and Ms Wishart. The interviews were not electronically recorded, rather contemporaneous notes were made by Detective Senior Constable McDonald. No one else was present during either interview

33. [51]

    Whilst A1 was being interviewed, A2 contacted her mother by telephone, alerting her of the situation with the Police. The conversation was recorded by way of telephone interception warrant under the Telecommunications (Interception and Access) Act 1979 (Cth). Whilst talking to her mother, A2 stated, "Our daughters circum-, circumcision, circumcised, don’t we. About that, to us do you see, how now become a government matter over here, yes" and “Caused to perform for our daughter, didn’t? For the seven even years old!".

34. [52]

    All references hereafter to conversations relate to conversations recorded by way of telephone interception warrant or surveillance device warrant. I note that recorded conversations are said to have involved the use of a mixture of languages, including Gujarati and English.

35. [53]

    When A1’s interview was finished, he returned to the waiting room and had a conversation with A2. During this conversation, A1 again discussed with A2 what she should and should not say to the Police, stating, "Do not tell them we got information that [C1] and [C2]’s circumcision have been done here" and, "If they ask you, tell them, you do not know what happened in it". He enquired whether C1’s procedure took place “last year” and told A2 to tell Police that his mother had told them to have the girls circumcised but they refused. A1 also asked, “in us do they cut the skin … or do they cut the whole clitoris?”. To which A2 responded “No … they just do a little bit … just little”.

36. [54]

    When A2 was interviewed by Police, she indicated that she was aware that the practice of FGM was illegal in Australia, and that she was aware that some of her friends and family had had the procedure performed upon them in Africa. She explained the different types of FGM and detailed that, in the Dawoodi Bohra community, the practice is only for a “bit of skin [to be] removed”. She stated that she had discussed the practice with her daughters whilst they were holidaying in Africa in 2012, but stated that she did not want her daughters circumcised. When A2 was asked the reason why her daughters would say they have been cut on their private parts, she stated, “I think it’s just the checking that they are getting confused” and that “[we] got them checked at different times by [KM]”.'

37. [55]

    A2 indicated that C1 was examined around the first term school holidays in April 2012 and C2 during the winter school holidays in July 2012. She said that C1 was examined by a female person known as “[KM]” at their family home in Baulkham Hills. She stated that A4 and A5 were also present during the examination. A2 stated that when C2 was examined, the persons present were believed to be A3, A5 and A6. A2 also indicated that during an examination, the underpants are removed and it is “just having a check down there to make sure everything is ok down there”. A2 recalled that KM said, "everything's alright", which made her believe her daughters had not been circumcised.

38. [56]

    After their interview on 29 August 2012, A2 telephoned KM. KM had been made aware of the police investigation earlier in the day by A1. During the conversation, A2 told KM that C1 explained everything to Police - that she had been circumcised and that her procedure had occurred in Australia. She stated that C2 did not know anything about her procedure. A2 also stated that she told Police that if the children had been circumcised, the procedure would have occurred in Africa. The two women then discussed how the Police found out that C1 and C2 had been circumcised, speculating that someone from within the community must have told them.

39. [57]

    Following her conversation with KM, A2 called her mother and they discussed what was told to Police. A2 stated she told Police the procedure could have taken place in Africa, when C1 and C2 were with their grandparents. She also explained that the Police went to C1 and C2’s school and "[C1] in fact told everything". Upon hearing this, A2’s mother stated, “Had you not taught [C1] … Had you not taught [C1] in order that would not speak?" and A2 responded "had taught, but these people of ours, those people, in fact are trained, wouldn’t be, in the matter causing the information to be taken out from all”.

40. [58]

    On 30 August 2012, A2 telephoned A3 and explained the police investigation. During the conversation, A2 stated "We got [C1], [C2] circumcised didn't we … first time happened at yours and the second time was here only. Named mummy, … and all”. She also informed A3 of the story she must tell if questioned by the Police explaining, "if any questions arise at all, you are just to say that 'yes, we were there ... it did happen, but just checking occurred'. And I haven't said yours that it happened at your house; I said that you were at our house and happened in this year. Now, I slightly, that is a little untrue story, now, knowledge, whether I will later clarify or not, with that one”.

41. [59]

    On the same morning, A2 had another conversation with both C1 and C2 whilst they were driving in the Toyota motor vehicle. During the conversation, she tried to find out how the Police knew what had happened, stating, "we just want to know, that how they came to know about it. We are just checking that you haven't said it by mistake to any friend or teacher”.

42. [60]

    After the conversation referred to in the two preceding paragraphs, A2 telephoned A1. During the conversation, A2 stated C1 told Police that, "We performed it in Wollongong” and that she has phoned A3 to inform her of the investigation. She explained that she told A3 that they have to "save Aunty [KM]" and that she is only to tell Police "[KM] has just checked everything … if anything would have happened, it has happened in Africa”. The couple also discussed that they did not tell Police that anything occurred at A3’s home. They agreed that they would eventually have to tell the Police an examination occurred at A3’s home because C1 had already told them that. A2 also stated, "If we all will remain together, those people do not have an evidence of any kind to incriminate”.

43. [61]

    On 4 September 2012, the day after C1 and C2 were examined medically by Dr Marks, A2 received a telephone call from KM. It is apparent from the conversation that the women believed that the examination of C1 and C2 by Dr Marks went well (the results of this examination are mentioned at [42]-[43] above). KM stated to A2, "then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]”. A2 explained that the case was not closed and there would be an ongoing investigation by the Police and FACS separately, however she believed that without any physical evidence, the Police would not be able to take the matter further. At the end of the conversation, KM told A2, "Especially now do explain to [C1] that if they ask anything all … in the school … .just to say as this that, ’I do not have the knowledge, call my mother, the matter is finished'”.

44. [62]

    During this conversation, A2 and KM also speculated about how the Police could have found out about the procedures. KM suggested A4 told someone stating, “[A7] tells me 'mummy' ummm [A4] is certainly quite friendly with everything in the mosque ... perhaps ... she could have uttered by mistake because [she] trusts everyone instantly, all her friends ... She is not of a type who would speak... although she was there’”.

45. [63]

    On 7 September 2012, A2 was arrested and charged with two counts of FGM. At the police station, A2 participated in an ERISP during which she stated that she had a very limited knowledge of FGM, as she had only heard about the topic in newspapers and during conversations with her friends and family who had had the procedure performed on them in Africa. A2 asserted her belief that C1 and C2 had not been circumcised, and reiterated that they must have become confused with the examination conducted on them by KM. She detailed that C1’s examination occurred “a couple years back” after a previous trip to Africa in 2008. C1’s examination was said to have occurred at A3’s house and C2’s at her own house. A2 stated that she had had C1 and C2 examined because, at their age, there was a risk of them having been circumcised when they were Africa. A2 did not adopt what she had previously stated in her interview on 29 August 2012 in respect of the “Khatna” procedure.

46. [64]

    At 3.20 pm on 29 August 2012, KM received a telephone call from A1, informing her that C1 and C2 had informed the Police about “Khatna”. KM became concerned that her name had been given to Police and asked if they could just tell Police that she only checked the children and “that was it”, commenting “there is no scar or anything there”. A1 confirmed that they would tell Police that C1 and C2 were examined in case they had been circumcised in Africa.

47. [65]

    At 4.08 pm on the same day, KM contacted a Dawoodi Bohra Sheikh, Elder Jaffar. During this conversation, she stated, "Over here, we, urn, I am quite in trouble and urn I do not have the information if the Elder Brother, The Elder Brother Khusar has told you anything or not because I do not want to go to gaol at my age. Now, please ask the Elder Brother, what does here, because this umm, in fact, I, with the Lord's permission, used to pay attention to the age of seven years of the female children. Now, this one girl has spoken something to someone in the school. Now, then, have called that one's parents to the Police. Then the girl's parents will give my name; I don't have the knowledge if the girl has given my name". She repeated this sentiment again during the conversation when she stated "I, with the Lords' consent, I, for many years, used to pay attention to a seven year old girl. You understand what I say, don't you?".

48. [66]

    At 5.50 pm, KM received a telephone call from A2, informing her how the interview with Police went. During the conversation, KM questioned whether C1 told Police "that it was done to her”, and A2 responded “yes”. KM informed A2 of the conversation she had with Elder Jaffar, explaining her belief that “this matter is of our community”. She also stated that she is “suddenly worried now" and too old to have to sit in gaol.

49. [67]

    Between 7.35 pm and 8.28 pm, KM had a number of telephone conversations with her husband, PM, and her daughter, A7. During these conversations, KM explained that the Police were investigating the circumcision of C1 and C2. She stated that someone had made a complaint about her and that the Police must have a solid tip or they would not have interviewed the children. KM also explained that this was the first that her husband would have heard of the situation.

50. [68]

    At 8.48 pm, KM and A7 had another conversation. During this conversation, A7 stated “I think whoever has done a report, it's; I mean, either it's been done against them [the As] or against you. But if it was against you then you've got to ask yourself that ‘wouldn't they have not [done] it some time ago?’ because you know; obviously; it's not; it's not the first time what you have done”.

51. [69]

    On 30 August 2012, KM was contacted by Mr Vaziri. Mr Vaziri stated that “35,000” had been sanctioned for her, and that she must complete a form to send to London in order to receive a cheque. During this conversation, KM stated that she was really scared, so scared in fact that she rang Elder Jaffar and told him that she did not want to go to gaol.

52. [70]

    After the medical examination of C1 and C2 on 3 September 2012, KM had a conversation with A7 and PM. During this conversation, the following exchange took place between the two women:

53. [71]

    On 4 September 2012, KM telephoned A2. KM stated to A2, “Then it is good that, because I had the knowledge that those people would not be able to see anything [during the examination]". At the end of the conversation, KM told A2, “Especially now do explain to [C1] that if they ask anything all … in the school just to say as this that, ‘I do not have the knowledge, call my mother’ the matter is finished”. KM also speculated that A4 “could have uttered by mistake because [she] trusts everyone instantly all her friends … she is not of a type who would speak … although she was there”.

54. [72]

    On 10 September 2012, KM was contacted by A1 who informed her that the Police were attending the homes of community members, giving them pamphlets and asking them questions about female circumcision. A1 repeated the story that must be told to Police stating that everyone has been informed to say “no comment” if they are asked about the day of the procedure, and that KM only came to check C1 and C2. When KM was asked what she will say about using an instrument during the examination, she stated, “I will just say - that there was nothing my hand. Certainly, by no means I would just [do] something [to] all with the hand, hmmm, do that in this way to the lower [part] of someone else's daughter? Indeed, I look hmm, examined to a little extent by opening the cervix just in this way with the forceps”.

55. [73]

    On 13 September 2012, KM was arrested by Police. At the police station, she did not wish to participate in an interview.

56. [74]

    At 2.53 pm on 13 September 2012, KM telephoned A1 and informed him of her arrest. KM told A1 that she did not tell Police anything and wanted to confirm everyone “maintained one story only …that you invited me merely to examine”.

57. [75]

    At 3.04 pm on 29 August 2012, A1 telephoned Mr Vaziri, informing him that C1 and C2 had told the Police about Khatna. A1 told Mr Vaziri, “Now it seem [C1] has already told them everything circumcisions-kharanat has happened”. He also stated that the Police had requested an interview with both himself and A2. When asked by A1, Mr Vaziri agreed that the practice of Khatna was illegal in Australia. A1 asked Mr Vaziri what to tell the Police. Mr Vaziri stated, "This is my thought. Tell that ‘In fact, we had gone in Milad and we had left at our neighbours, who, who has traveller’s lodge over here and then do not have the knowledge as to what happened’”.

58. [76]

    At 6.18 pm on the same day, A1 telephoned Mr Vaziri again, informing him that the Police had been told that any circumcision on C1 and C2 must have taken place in Africa and that a lady was only called to examine the children, to verify that they had not been circumcised. A1 also told Mr Vaziri that female circumcision is illegal in Australia and the Police want to have C1 and C2 examined. Upon hearing this, Mr Vaziri advised A1 to seek legal advice. He also stated, "Brother only one thing. Always keep providing the same oral testimony that you have said. Then; change in it; don't change it … Don't introduce any change in that nothing at all, not even a little". During this conversation, A1 also advised that C1's circumcision was performed at A3’s house and C2's circumcision was performed at his own house. A1 also speculated that KM would be very anxious because she was the person who conducted the circumcisions.

59. [77]

    On 30 August 2012, Mr Vaziri telephoned KM. During this call, he informed KM that “35,000” had been sanctioned for her, and that in order to receive a cheque she had to complete a form that would be sent to London. During the conversation, KM informed Mr Vaziri that she was very scared about the police investigation and had telephoned another Elder, telling him that she did not want to go to gaol.

60. [78]

    On 3 September 2012, Mr Vaziri received a telephone call from Hussein Karimjee, a member of the community and a solicitor assisting the A family. Mr Karimjee informed Mr Vaziri that he had spoken to an Elder in London and that a document was being created to outline the community's attitude to FGM. Mr Karimjee instructed Mr Vaziri to tell Police that the community does not agree with or encourage anyone to conduct FGM in Australia or any other country. Additionally, he recommended that KM no longer perform procedures within the community as she was more than likely being watched by Police. Mr Karimjee also warned that no one from the community should go overseas for the purpose of having their daughters circumcised.

61. [79]

    During his conversation with Mr Karimjee, Mr Vaziri questioned what he should say “according to Sharia”. Mr Karimjee stated that mutilation and circumcision are not written anywhere and it is not encouraged within the community. He reasoned that the procedure performed within the community is so minimal that it cannot be seen as mutilation. Mr Karimjee stated that without further evidence no one would believe the words of an eight-year old, however he also warned that the investigation is continuing and the people within the community needed to be cautious and alert as to what they should and should not tell Police.

62. [80]

    On 6 September 2012, Mr Karimjee again telephoned Mr Vaziri and the two discussed Mr Vaziri's upcoming interview with Police. Mr Vaziri stated he had been advised by another Elder to be confident in the interview. Mr Karimjee told Mr Vaziri that he should say, as far as he was aware, C1 and C2 were very quiet after they returned from Africa, so KM was engaged to verify that they had not been circumcised. Mr Karimjee informed Mr Vaziri that C1 had already advised Police that many people came to Wollongong when her procedure took place, that scissors were used and that she was in pain for two-to-three days after the procedure. Additionally, Mr Karimjee stated that the medical examination “did not show anything” and therefore Police had no evidence of a procedure taking place. At the end of the conversation, Mr Vaziri asked Mr Karimjee if there were any difficulties in him representing everyone involved, to which Mr Karimjee responded there would be no problem so long as everyone told the same story.

63. [81]

    At 6.09 pm on 10 September 2012, Mr Vaziri telephoned an unknown female member of the Dawoodi Bohra community. During this phone call, Mr Vaziri advised the unknown female that the Police are going to the houses of community members and asking them questions about female circumcision. The unknown female stated that Police had already been to her house, but she told Police that she did not know the meaning of the work "khatna" and had no idea whether young girls were being circumcised. Mr Vaziri told the unknown female that, if the Police return and ask any further questions, she is to say "I am not saying … mean we do not do it”.

64. [82]

    At 6.42 pm, Mr Vaziri telephoned a male Dawoodi Bohra community member known as A8. Similarly to the previous call, Mr Vaziri warned A8 that Police are going to the homes of community members and asking them questions about female circumcision. During the conversation, Mr Vaziri told A8, "If someone asking you or your wife this should your answer; 'We do not believe in it’”. Mr Vaziri told A8 to relay the message to his wife whilst he was still on the phone stating the Police "are leaving soon for information". Mr Vaziri also stated, "Which ever country you live, loyal to that country. That what should do”.

65. [83]

    At 8.57 pm, Mr Vaziri telephoned Mr Karimjee. During this conversation, the two again discussed what Mr Vaziri would tell Police in his interview. Mr Karimjee reiterated that Mr Vaziri was to say he does not teach or believe in female circumcision, warning that Mr Vaziri must repeat the phrase exactly to Police. Mr Vaziri informed Mr Karimjee that the Police had gone to the houses of the community members and handed out pamphlets. He also raised concerns that the Police had found the community website.

66. [84]

    At 9.50 pm, Mr Vaziri telephoned Mr Karimjee again. During this conversation Mr Vaziri raised concerns that there was no control over the situation. Mr Karimjee told Mr Vaziri there is no reason to worry, stating, "What knowledge do those people have as to Your Honour's plan ... they do not have information as to what Your Honour's plan was". Mr Karimjee repeated his warning that the community will have to take care now, to which Mr Vaziri responded, "Yes exactly, in fact these people also have the information".

67. [85]

    At 5.20 am on 13 September 2012, police officers attached to the investigation attended the Auburn Mosque and arrested Mr Vaziri. Mr Vaziri was conveyed to Auburn Police Station where he participated in a recorded interview. During the interview, Mr Vaziri stated that he had never heard of FGM, female circumcision or “Khatna” being performed on females. When Mr Vaziri was advised that the [As] had been charged the week prior with committing FGM on their children, he stated they had approached him after being arrested in order to obtain a “blessing” from the 52nd Dai Mutlaq (the highest living Dawoodi Bohra authority, who is based in India). Mr Vaziri then conceded this meant he had heard of FGM prior to walking into the interview room, but this conversation with the As] was, in fact, the first time he had heard of it.

68. [86]

    Later in his police interview, Mr Vaziri stated the first time he had heard of FGM was 4 days prior when he was handed a pamphlet about it at the mosque. He stated he was completely against FGM and that if he ever found out about it happening in his community, he would report it to Police. Mr Vaziri further stated he never provided advice to the [As], he simply conveyed their request for a blessing to the 52nd Dai Mutlaq. He also stated he is the highest Dawoodi Bohra authority in Sydney, but is not in a position to authorise any ritual involving FGM and explained that the Quran dictates that Muslims must abide by the laws of the land they are living in. When asked if he was aware FGM is illegal in New South Wales, he stated he did not need to know because it had never been an issue for him. He also stated he did not know if the practice was illegal in India and again, had never needed to because he had never even come across it.

The Real Issues in the Trial

1. [87]

   To place the present statutory construction issue into context, it is helpful to note what appear to be the real issues in the trial.

2. [88]

   The issues in dispute were touched upon during the pretrial hearing concerning the competence and compellability of C1 and C2. During submissions, I enquired of Mr Sutherland SC, counsel for A2 and Mr Vaziri (PT49-51) (emphasis added):

3. [89]

   The Notice of Defence Response under s.143 Criminal Procedure Act 1986, served on behalf of A2 and dated 29 June 2015, stated the nature of her defence in the following way:

4. [90]

   The Notice stated that A2 proposes to give consent under s.184 Evidence Act 1995 admitting the following matters of fact:

5. [91]

   The Notice of Defence Response dated 29 June 2015 on behalf of KM is to a similar effect. KM’s defence is described in the following way:

6. [92]

   KM’s Notice of Defence Response foreshadowed the following admissions:

7. [93]

   The Notice of Defence Response for each Accused person notified, for the purposes of s.143(1)(d) Criminal Procedure Act 1986, the following point of law which was intended to be raised:

8. [94]

   The present judgment addresses that point of law, for the purpose identified at the commencement of the judgment (at [3]-[5]).

9. [95]

   The Notice of Defence Response dated 29 June 2015 for Mr Vaziri includes a denial that he committed the offences and an indication that he does not propose to give any notice of consent under s.184 Evidence Act 1995.

Provisions in the Crimes Act 1900 Concerning the Prohibition of FGM

1. [96]

   Section 45 Crimes Act 1900 was enacted in 1994 by way of the Crimes (Female General Mutilation) Amendment Act 1994 (“the 1994 FGM Act”).

2. [97]

   The 1994 FGM Act inserted s.45 in Division 6 of Part 3 of the Crimes Act 1900. Part 3 is entitled “Offences Against the Person” and Division 6 of Part 3 is entitled “Acts Causing Danger to Life or Bodily Harm”.

3. [98]

   The long title of the 1994 FGM Act was “an Act to amend the Crimes Act 1900 to prohibit female genital mutilation”.

4. [99]

   Section 45, as it stood at relevant times (for the purpose of these proceedings) between 2009 and 2012, was in the following terms:

5. [100]

   Reference will be made later in this judgment to the Explanatory Memorandum and parts of the Second Reading Debate, together with other extrinsic material upon which the parties relied on the hearing of this issue.

6. [101]

   The 1994 FGM Act commenced on 1 May 1995.

7. [102]

   It should be noted that:

8. [103]

   Although not directly applicable to these proceedings, it is appropriate to refer to amendments effected by the Crimes Amendment (Female Genital Mutilation) Act 2014 (“the 2014 FGM Amendment Act”). Given the relationship between the 1994 and 2014 legislation, the proper construction of the term “mutilates” in s.45(1)(a) will be assisted by an examination of the changes made by the 2014 FGM Amendment Act, and extrinsic material relevant to that legislation.

9. [104]

   The 2014 FGM Amendment Act amended s.45 and inserted s.45A into the Act. The amendment of s.45 and the enactment of a closely related provision, s.45A, will bear upon the proper construction of the terms FGM and “mutilates” in s.45. It is appropriate to set out in full the current provisions of s.45 and s.45A:

10. [105]

    As will be noted, s.45 was amended by the removal of s.45(2) and the increase of the maximum penalty from seven years’ imprisonment to 21 years’ imprisonment.

11. [106]

    For the purpose of s.45A, the legislature defined “female genital mutilation” as meaning “an act referred to in section 45(1)(a), the performance of which would be an offence against that section if performed in the State”: s.45(4).

12. [107]

    In adopting this approach, it appears that the legislature accepted that the term FGM in s.45 had a settled meaning which could be applied, without further elaboration, in the new offence created by s.45A.

13. [108]

    Accordingly, the construction of s.45(1) under consideration in these proceedings will have equal application to the offence created by s.45A.

The Competing Submissions Concerning the Meaning of the word “Mutilates” in s.45(1)(a) Crimes Act 1900

1. [109]

   Before embarking upon an examination of the competing submissions and my conclusion concerning the issue of interpretation addressed in this judgment, it is useful to set out the end point submissions of the parties concerning the meaning which should be accorded to the word “mutilates” in the context of this case.

2. [110]

   The Crown submits that any physical injury to any extent to the female genital organs, which is done for non-medical reasons, can amount to mutilation for the purposes of s.45. The Crown submits that a nick or cut to the genitalia for the purposes of FGM is capable of falling within the concept of mutilation in s.45. The Crown says that, at the very least, the procedure performed by KM on C1 and C2 was a cutting or nicking (including pricking or piercing) of the clitoris so as to be capable of falling within the terms of s.45. The Crown submits that the jury should be directed that any injury to any extent for non-medical reasons falls within the meaning of “mutilation” for the purpose of s.45 Crimes Act 1900.

3. [111]

   Mr Sutherland SC, for A2 and Mr Vaziri, and Mr Bouveng, for KM, joined in a submission that a jury should be directed that the word “mutilates” in s.45 means to cut off, destroy, or alter radically a part of the body, in the present case (given the terms of the Indictment), the clitoris.

4. [112]

   The Court had the benefit of detailed written submissions from the Crown (MFI20) and the Accused persons (MFI23) together with oral submissions made on 19 August 2015 by reference to these submissions (PT495-529). Volumes of material relied upon by the parties on the construction issue were provided by the Crown (Exhibit PTP) and the Accused persons (Exhibit PT7). As a result of issues raised in the course of oral submissions, both the Crown and the Accused persons provided supplementary submissions on 20 August 2015 concerning the meaning to be accorded to the word “clitoris”, which appears in s.45(1)(a) of the Act.

5. [113]

   In what follows, I will provide a short overview of the submissions, followed by my analysis of the issues giving rise to the conclusions reached on the construction issue and the proper directions to be given to a jury.

Short Overview of Submissions of the Parties

1. [114]

   The Crown invited the Court to construe the term “otherwise mutilates” in s.45(1) in a purposive way, keeping in mind the context in which the words are used.

2. [115]

   The Crown contended:

3. [116]

   The Court was taken to the Second Reading Debates surrounding the 1994 FGM Act and material referred to in those debates, including a 1994 report of the Family Law Council to which further reference will be made.

4. [117]

   Reference was made, as well, to WHO publications concerning FGM, and material relied upon for official community education purposes within New South Wales to explain FGM and to foster its prevention, following the enactment of the 1994 FGM Act.

5. [118]

   The Crown submitted that the term “otherwise mutilates” is a type of catch-all phrase to be understood in the context of FGM generally, as expanded upon in the range of publications and other materials to which the Crown points.

6. [119]

   It was submitted that an important feature in the construction of the term “mutilates” in this context is that the affected area is the most sensitive and intimate part of the body of (usually) a child, being the genital area.

7. [120]

   The Crown submitted that a finding that mutilation did not extend to any injury to any extent for non-medical reasons, would be contrary to the legislative purpose and would fail to recognise the legislative context and would fail, as well, to provide proper protection for those for whom it was enacted to protect, particularly children who are considered vulnerable.

8. [121]

   The Crown submits that the purpose of the 1994 FGM Act was to cover the field in terms of FGM and that it was not limited to the most severe forms of that conduct referred to in the extrinsic material.

9. [122]

   The Crown submitted that acceptance of the construction advanced for the Accused persons would unduly narrow the conduct caught by s.45(1) in a manner which was inconsistent with the purpose or object of the enactment and which would serve to defeat that purpose or object.

10. [123]

    It was submitted for the Accused persons that the ordinary meaning of the word “mutilates” should be applied here and that that word involved far more than “any injury to any extent for non-medical reasons” as contended for by the Crown. The Court was taken to various dictionary definitions of the word “mutilate”. It was submitted that the word “mutilates” is a strong one connoting the injuring, disfiguring, depravation, castration, destruction of use, or making an imperfection by permanent or irreparable damage, excision or other act of destruction.

11. [124]

    Counsel for the Accused persons took the Court to other legal dictionary definitions of the word “mutilation” in support of this submission. The Court was taken, as well, to consideration of the word “mutilate” in decisions from the United States of America.

12. [125]

    The Court was taken to the decision of Sir James Munby, President of the Family Division, in In the Matter of B and G (Children) (No. 2) v Leeds City Council and Ors [2015] EWFC 3, where consideration was given to s.1 Female Genital Mutilation Act 2003 (UK) which is in similar terms to s.45(1)(a) Crimes Act 1900. It was submitted that this decision provided some support for a narrow construction of the term “mutilates” as contended for by the defence in this case.

13. [126]

    Counsel took the Court to the use of the word “mutilation” in other statutes in Australia, including s.268.47 Criminal Code Act 1995 (Cth) and s.67 Australian Securities and Investment Commission Act 2001 (Cth) in support of the defence submission.

14. [127]

    It was submitted that the Court should construe a penal provision such as s.45(1) in a literal and non-expansive fashion, with reliance being placed, amongst other cases, upon Milne v The Queen [2014] HCA 4; 252 CLR 149.

15. [128]

    It was submitted that the wording of s.45 is clear and does not produce ambiguity, inconsistency or absurdity. It was submitted that a purposive construction did not justify an expansion of the scope of FGM beyond its textual limits. In these circumstances, it was submitted that there was no necessity for consideration of extraneous material although it was further contended that such material supported the defence approach in any event.

16. [129]

    Counsel relied upon other canons of statutory interpretation, including noscitur a sociis and the ejusdem generis principle. It was submitted that a genus exists here with “excise” and “infibulates” being methods of injury so that “mutilation” needs to follow with the same common characteristic: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at 143 [126]. It was submitted that the common characteristic here, giving rise to a genus, was the infliction of serious injury. It was submitted that, when “mutilate” is read in conjunction with the specific words “excise” and “infibulate”, it is confirmed that really serious injury is required to have been caused so as to constitute mutilation.

17. [130]

    It was submitted that the Second Reading Speech of the Minister with respect to the 1994 FGM Act indicated that the provision was directed to three forms of FGM, being “infibulation, clitoridectomy and sunna”. I will return to these concepts later in the judgment. It was submitted that this statement was contrary to the Crown submission in support of the breadth of the term “mutilates” in s.45.

18. [131]

    Counsel submitted that the Crown construction would apply s.45 to genital cosmetic procedures, such as the insertion of genital studs or rings, where an adult woman requested and consented to such a procedure. In this way, it was submitted that the Crown approach would involve legislative overreach of a type beyond the intention of the legislature in 1994. Such a construction, it was said, would give rise to absurd or unreasonable outcomes, so as to emphasise the error in broad construction advanced by the Crown.

19. [132]

    A further submission was made by reference to the term “actual bodily harm” in s.59(2) Crimes Act 1900 (the alternative counts) and a contrast between that element and the Crown submission concerning the meaning of “mutilates” in s.45(1) of the Act.

Analysis of Matters Bearing Upon the Meaning of “Otherwise Mutilates” in s.45 Crimes Act 1900

1. [133]

   What follows involves identification and analysis of matters bearing upon the construction issue in this case. Following this analysis (which involves some conclusions), I will move to summarise my findings and conclusions on the construction issue.

2. [134]

   It is appropriate to refer to a number of judicial statements bearing upon the task of statutory interpretation, before moving to the Interpretation Act 1987 and other aspects to be considered in determining the issue.

3. [135]

   A helpful starting point are the well-known statements in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

4. [136]

   Further assistance is provided by the statement of Bathurst CJ (Beazley and Basten JJA agreeing) in Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 at 329 [39]-[40]:

5. [137]

   In Monis v The Queen [2013] HCA 4; 249 CLR 92, Crennan, Kiefel and Bell JJ, in the course of construing a penal provision, said at 202 [309]:

6. [138]

   In Milne v The Queen, at 164 [38], the Full High Court said with respect to the use of a purposive construction of a penal provision (footnotes omitted):

7. [139]

   These propositions will be kept in mind in undertaking the process of statutory interpretation in this case.

8. [140]

   The purposive construction rule in this State is reflected in s.33 Interpretation Act 1987, which states:

9. [141]

   Section 34 concerns the use of extrinsic material in statutory interpretation. The provision will be mentioned for a number of purposes in this judgment. The section provides:

10. [142]

    Both the long title to the 1994 FGM Act (see [98] above) and the heading of s.45 refer to “prohibition of female genital mutilation”. The term “female genital mutilation” is not used within the body of s.45 itself.

11. [143]

    The long title may be referred to as an aid to the construction of the 1994 FGM Act: Pearce and Geddes, “Statutory Interpretation in Australia”, Lexis Nexis Butterworths, 2014, 8th Edn, paragraph 4.48.

12. [144]

    The heading of the section shall be taken not to be part of the statute: s.35(2) Interpretation Act 1987. However, the heading of s.45 is available as extrinsic material under s.34 Interpretation Act 1987: s.35(5) Interpretation Act 1987.

13. [145]

    As will be seen, I consider the words “prohibition of female genital mutilation” as used in the long title and the heading, to have particular significance in the context of this case.

14. [146]

    The Court was taken to a range of dictionary definitions concerning various terms in the course of submissions.

15. [147]

    If a word or phrase is not defined in a statute, it may be helpful to refer to a dictionary for its popular meaning (or meanings) or, where appropriate, its technical meaning (or meanings) and, in the latter context, specialist dictionaries such as legal or medical dictionaries may be of assistance: Pearce and Geddes, above, paragraph 3.30.

16. [148]

    It is necessary to keep in mind the observations of Mason P (Stein and Giles JJA agreeing) in House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at 505 [28]:

17. [149]

    Mason P referred, at 506 [32], to the role of the Macquarie Dictionary:

18. [150]

    It is necessary to keep in mind that the Court must interpret a phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions: Falconer v Pedersen [1974] VR 185 at 187; Pearce and Geddes, above, paragraph 3.30.

19. [151]

    I approach the use of the various definitions set out below with these statements of principle in mind.

20. [152]

    The verb “mutilate” is defined in the Macquarie Dictionary (6th Edn) as:

21. [153]

    “Mutilate” is defined in the Australian Oxford Dictionary, Oxford University Press (1999) as:

22. [154]

    “Mutilate” is defined in the Shorter Oxford English Dictionary (Volume II) 3rd Edn (1991 reprint) as:

23. [155]

    As the word “maim” was mentioned (in an historical sense at least) in the Macquarie Dictionary definition of “mutilate”, the Crown referred to the definition of “maim” in the Macquarie Dictionary which states:

24. [156]

    If the enquiry concerning the meaning of the word “mutilates” is confined to its bare dictionary meaning (unassisted by context or statutory purpose), the better view may be that more is required than the causing of injury. That view, however, must be tempered by the fact that the area of the body in question here is the sensitive and intimate part comprised of the female genital area. As the Crown submits, this feature should be kept in mind in construing the word “mutilates” in this context.

25. [157]

    A further feature may be elicited from reference to dictionary meanings. The term “female genital mutilation” itself has acquired a dictionary meaning in the Macquarie Dictionary and the Shorter Oxford English Dictionary.

26. [158]

    The Macquarie Dictionary (online version) defines “female genital mutilation” in the following way:

27. [159]

    The Oxford English Dictionary (online version) defines “female genital mutilation” in the following way:

28. [160]

    The Oxford English Dictionary (online version) defines “female circumcision” as follows:

29. [161]

    This development accords with a view that the term FGM has become a type of term of art or catch-all term, describing a range of conduct extending from, at the lower end, cutting (including a nick) to, at the more extreme end, infibulation and clitoridectomy. I will return to this aspect later in the judgment.

30. [162]

    It is sufficient to say, at this point, that a focus upon a traditional meaning of the word “mutilates” in dictionaries provides limited assistance only in determining the meaning of the word “mutilates” in its present statutory context.

31. [163]

    It must be kept in mind, as well, that where s.34 Interpretation Act 1987 is utilised, the ordinary meaning of a term is not confined to its ordinary dictionary meaning. The ordinary meaning is that conveyed by the text of the provision, taking into account its context in the statute and the purpose or object underlying the statute: s.34(1)(a), (3)(a).

32. [164]

    I derive no real assistance from consideration of the word “mutilate” or “mutilation” in other cases in different contexts in Australia or the United States of America. The cases referred to by counsel for the Accused persons do not, in my view, provide assistance in resolution of the present issue. Likewise, reliance upon the use of the word “mutilation” in s.268.47 Criminal Code Act 1995 (Cth) and s.67 Australian Securities and Investments Commission Act 2001 (Cth). In my view, those statutory contexts are far removed from the present case.

33. [165]

    The researches of counsel, and my researches, have not revealed any decision of direct assistance to the present issue of statutory construction in Australia.

34. [166]

    As mentioned earlier, counsel for the Accused persons referred to the decision of Sir James Munby in B and G (Children (No. 2) v Leeds City Council and Ors. In that case, the Family Court considered the question of whether or not G (a female child) had been subjected to FGM in the context of an application for the child and her brother to be placed into care. The hearing proceeded over 12 days with evidence being given by a range of witnesses. The determination of the Family Court was that it was not possible to make a finding, on the evidence, that the child G had been had been subjected to FGM. The application for the children to be taken into care thus failed.

35. [167]

    The President of the Family Division considered the meaning of FGM by reference to the WHO and UNICEF classifications. The President said at [7]-[9]:

36. [168]

    Sir James then turned, at [10]-[12], to the criminal legislation contained in the Female Genital Mutilation Act 2003 (UK) (which is similar to s.45(1)(a) Crimes Act 1900):

37. [169]

    The extent of any further analysis of the criminal provision was confined to [70], where the President of the Family Division said:

38. [170]

    It was submitted for the Accused persons that the only judicial interpretation of the UK equivalent of s.45(1)(a), as contained in this case, stated that:

39. [171]

    These propositions summarise the position reached by Sir James Munby, without the need to further decide, in that case.

40. [172]

    However, the task of construction for this Court under the law of this State, involves far more than the preliminary views expressed in the UK case. It is necessary for this Court to apply statutory and other principles to reach a conclusion in the context of this case.

41. [173]

    The UK decision is of interest to the Court in determining the present issue. Section 1(1) of the UK Act is relevantly the same as s.45(1)(a) Crimes Act 1900. It is noteworthy that the Family Court referred (at [12]) to a dictionary definition of the word “mutilates” for its purposes. However, it does not appear that any submission was put to the Family Court, let alone considered further, by reference to statutory context or the purpose or object of the legislation. Sections 33 and 34 Interpretation Act 1987 play a part in the resolution of the present issue.

42. [174]

    Insofar as the UK decision involves the expression of a judicial opinion concerning the capacity of the categories contained in the WHO classification to fall within the UK provision, it should be noted by this Court in the discharge of its task. Its usefulness, however, does not extend beyond that step.

43. [175]

    I am satisfied, for the purposes of s.34(1) and (3) Interpretation Act 1987, that a proper foundation exists for the Court to consider extrinsic material under s.34 in the construction of s.45 and, in particular, the meaning of the words “otherwise mutilates”. This approach is taken principally because there is debate as to whether the narrow dictionary meaning of the word “mutilates” should be adopted, there is ambiguity concerning the term “mutilates” and there are competing submissions as to whether an absurd or unreasonable result would occur if a particular construction was adopted. “Ambiguity” in s.34 is not limited to lexical or verbal ambiguity and syntactic or grammatical ambiguity - it extends to circumstances in which the meaning is, for whatever reason, doubtful: R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 at 312-313 [55] (Spigelman CJ).

44. [176]

    I am satisfied that a broad range of extrinsic material may be considered by the Court in the resolution of the present issue. Section 34(2) Interpretation Act 1987 provides for a non-exhaustive list of material which does not form part of the Act, but which is capable of assisting in the ascertainment of the meaning of the provision.

45. [177]

    It is apparent from the documentary material before the Court on this application (Exhibits PTP and PT7) that there was widespread community discussion in Australia by early 1994 concerning FGM.

46. [178]

    In September 1993, the Commonwealth Attorney General had asked the Family Law Council to examine, amongst other things, the adequacy of existing Australian laws to deal with the issue of FGM. The Family Law Council is a statutory authority established by s.115 of the Family Law Act 1975 (Cth). In January 1994, the Family Law Council issued a discussion paper on FGM (Exhibit PTP, Tab 24) followed by a report issued in June 1994 (Exhibit PTP, Tab 25; Exhibit PT7, Tab 57). The Discussion Paper and Report were relied upon heavily during the Second Reading Debates surrounding the 1994 FGM Act.

47. [179]

    On 2 March 1994, the Attorney General, Mr Hannaford, informed the Legislative Council of his intention to introduce during that Parliamentary session “legislation to make female genital mutilation illegal in this State” (Exhibit PTP, Tab 14).

48. [180]

    Later in March 1994, debate occurred in the Legislative Council in which action was urged with respect to FGM (Exhibit PTP, Tab 15).

49. [181]

    It is useful, at this point, to refer to parts of the report of the Family Law Council of June 1994 (Exhibit PTP, Tab 25; Exhibit PT7, Tab 57). At page 6, paragraph 2.01, the Family Law Council said (footnotes omitted):

50. [182]

    The Family Law Council explained its understanding of the concept of FGM at pages 6-8, paragraphs 2.02-2.07 of the Report:

51. [183]

    In the course of examining the origins of FGM, the Family Law Council referred to the fact that the Daudi Bohra of India, an ethno-religious minority of half-a-million, was said to practice excision (pages 10, 13, paragraphs 2.17, 2.35).

52. [184]

    In its Report, the Family Law Council considered that there were several reasons for special legislation concerning FGM noting, in this respect (page 50, paragraph 6.37):

53. [185]

    The Family Law Council recommended the enactment of special legislation, for reasons including those set out in the preceding paragraph (page 52, paragraph 6.41).

54. [186]

    The Family Law Council recommended that, to be fully effective, legislation should cover a range of matters, including the following (page 63, paragraph 6.80(a)):

55. [187]

    The Explanatory Note, which accompanied the 1994 FGM Act, was in the following terms:

56. [188]

    The Second Reading Speech with respect to the 1994 FGM Act was delivered by the Hon RJ Webster on behalf of the Attorney General (Hansard, Legislative Council, 4 May 1994). The Minister commenced the Second Reading Speech as follows:

57. [189]

    The Minister turned to the rationale for specific legislation in New South Wales, including the clear deterrent and educational role to be played by enactment of legislation of this type:

58. [190]

    The Minister then turned to the provisions of the Bill, with the following statement relied upon by the Accused persons in this case (see [130] above):

59. [191]

    Soon after, the Minister stated that the “provision thus aims to prevent the FGM from being practised at all in this State”.

60. [192]

    The Minister emphasised the importance of community education concerning this provision, referring explicitly to the Family Law Council Report in this respect:

61. [193]

    The Minister concluded the Second Reading Speech in the following way:

62. [194]

    In the speech in reply, the Attorney General said (Hansard, Legislative Council, 10 May 1994):

63. [195]

    In emphasising the intended scope of the provision, the Attorney General said in the speech in reply:

64. [196]

    The Attorney General emphasised further the importance of the community education program, to be undertaken in conjunction with the enactment of s.45:

65. [197]

    The Second Reading Debate in the Legislative Assembly concerning the 1994 FGM Act commenced in May 1994 and continued in September 1994. The speeches in the Legislative Assembly reinforced the combination of enactment of a criminal offence and the need for a community education program. This is exemplified by the following extract from the speech of Mrs Chikarovski, Minister for Industrial Relations and Employment, and Minister for the Status of Women, (Hansard, Legislative Assembly, 22 September 1994):

66. [198]

    The 1994 FGM Act commenced on 1 May 1995. The community education program surrounding the commencement of the legislation was the subject of further comment in Parliament. The Hon MR Egan, Treasurer, stated (Hansard, Legislative Council, 31 May 1995):

67. [199]

    The approach taken by the legislature to the 1994 FGM Act, based upon the Family Law Council Report, is summarised neatly in the title of a 1995 article of Bill Hughes, the Director of Research of the Family Law Council - “Female Genital Mutilation: The Complementary Roles of Education and Legislation in Combating the Practice in Australia” (1995) 3 Journal of Law and Medicine 202.

68. [200]

    In circumstances where a community education program was linked inextricably by the legislature to the commencement and operation of the 1994 FGM Act, the Court was taken by the Crown to material which has been utilised as part of that program since the late 1990s. This extrinsic material is, in a sense, far removed from the usual extrinsic material to which a court will have resort where an issue of statutory construction arises. Material setting out a public servant’s understanding of the law has been considered unlikely to assist in the process of statutory construction: Pearce and Geddes, above, paragraph 3.26. However, it should be kept in mind that s.34(2) Interpretation Act 1987 provides a non-exhaustive list of extrinsic material which may be taken into account for the purpose of s.34(1) of that Act.

69. [201]

    Consideration of this educational material will, at the least, provide an understanding of what the community of New South Wales has been led to believe is the scope of s.45 Crimes Act 1900. It may, of course, be that the understanding promulgated through this material as part of a community education program is wrong. In effect, that is the submission advanced on behalf of the Accused persons. It remains for the Court to reach a conclusion with respect to the proper construction of the provision. I am satisfied that this material may be taken into account to understand the so far unchallenged meaning ascribed to s.45 and communicated to the community, including specific parts of the community where FGM was potentially a live question. This is especially so given the enactment of the 2014 FGM Amendment Act, where the fundamental importance of the community education program was once again explained.

70. [202]

    The Crown tendered a statement dated 13 August 2014 of Vivienne Strong, the then Manager of the New South Wales Education Program for Female Genital Mutilation (Exhibit PTP, Tab 38). A document entitled “NSW Education Program on Female Genital Mutilation”, in use since 2007, is in evidence (Exhibit PTP, Tab 34). Ms Strong explains the use that has been made of this document, as part of the community education program surrounding FGM, for a number of years. The document itself states (page 1):

71. [203]

    The document explains s.45 in the following way (page 3) (emphasis added):

72. [204]

    Ms Strong explained in her statement the use of the WHO categorisation in this regard (paragraph 23):

73. [205]

    Accordingly, it may be seen that the community education program which has proceeded in this State since the 1990s has explained procedures prohibited by s.45(1) Crimes Act 1900 in a broad way, by reference to the WHO FGM classification and including, amongst other things, the cutting of the clitoris or part of the clitoris or “damage” to the female genital area in other ways.

74. [206]

    If the narrow construction advanced by the Accused persons (see [111] above) is accepted, then the question of what procedures are caught by s.45(1) will involve a matter of judgment, as to which minds may differ, as to whether more than injury, namely serious injury, has resulted from the procedure. Indeed, the defence construction would confine the operation of s.45 (and s.45A) to conduct which excises, infibulates or cuts off, destroys or alters radically the clitoris, labia major or labia minora. If this construction was correct, there would be a large gulf between what s.45(1) prohibits and the conduct communicated to the public by health authorities for many years.

75. [207]

    The 1994 FGM Act, and s.45 itself, is entitled “Prohibition of Female Genital Mutilation”. The consistent theme of publications, including the authoritative work of the Family Law Council, indicated a proposed total ban on the carrying out of non-medical procedures, which may cause harm or injury, to the genital area of young girls.

76. [208]

    What has been understood for nearly two decades as a total prohibition on conduct of this sort would be altered radically, should the construction advanced on behalf of the Accused persons be accepted in this case.

77. [209]

    Laws in Australia concerning FGM have been the subject of ongoing consideration. In a final report entitled “Review of Australia’s Female Genital Mutilation Legal Framework” (March 2013), the Commonwealth Attorney General’s Department summarised the scope of existing State and Territory laws in the following way (Exhibit PTP, Tab 23, page 9) (emphasis added):

78. [210]

    It will be seen that the understanding expressed in a range of official documents is that the conduct prohibited by s.45 Crimes Act 1900 encompasses all conduct falling within the WHO FGM classification (see [204] above).

79. [211]

    I have mentioned earlier the amendments made by the 2014 FGM Amendment Act and their significance to the issues falling for consideration in this judgment (see [103]-[108] above). Certain submissions were made by reference to the Second Reading Debates surrounding that Act.

80. [212]

    I approach this aspect upon the basis that ss.45 and 45A must be read together. As noted, the definition of FGM in s.45A constitutes a simple reference back to conduct caught by s.45(1)(a) of the Act. In these circumstances, I am satisfied that the Second Reading Debates surrounding the 2015 FGM Amendment Act may be considered as extrinsic material which assists upon the construction of s.45(1).

81. [213]

    In the Second Reading Speech, Mr Smith, the Attorney General, said (Hansard, Legislative Assembly, 5 March 2014) (emphasis added):

82. [214]

    Counsel for the Accused persons relied upon the underlined words in the Second Reading Speech.

83. [215]

    The Attorney General concluded the Second Reading Speech with a further reference to the importance of public education concerning FGM:

84. [216]

    It will be noted that the Attorney has referred to the Commonwealth Attorney General’s Department Report of March 2013, to which reference has already been made (see [209] above). This Report was part of a recurring theme during the Second Reading Debates concerning the 2014 FGM Amendment Act.

85. [217]

    The contributions of a number of members to the debate emphasised the importance of the ongoing application of the criminal law and the community education campaign concerning FGM, which had been on foot for some time and which was to be re-emphasised. Speeches in this category included those of Mr Jonathan O’Dea, Ms Pru Goward, Minister for Planning and Minister for Women, and Mr Victor Dominello, Minister for Citizenship and Communities.

86. [218]

    Mr Mark Speakman, Parliamentary Secretary, opened his speech in the following way, drawing upon the WHO FGM classification:

87. [219]

    Mr Speakman emphasised, as well, what he described as the “multifaceted approach” which had been underway in New South Wales involving an education program on FGM. The Parliamentary Secretary said :

88. [220]

    In the speech in reply in the Legislative Council, the Hon David Clarke, Parliamentary Secretary, emphasised, once again, the importance of the community education program (Hansard, Legislative Council, 13 May 2014):

89. [221]

    It was submitted for the Accused persons that the Court should have regard to extrinsic material only to confirm that the meaning of “mutilates” in s.45(1) is the ordinary meaning of the word. It is important to keep in mind that s.34(1)(a) permits consideration to be given to extrinsic material to confirm that the meaning of the provision is “the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act … and the purpose or object underlining the Act …)”.

90. [222]

    In this case, I am satisfied that this enquiry extends beyond the dictionary meaning of the word “mutilates” and extends to the context in which the word is used, with a strong emphasis upon prohibition of FGM, and to assist an understanding of the purpose or object underlining s.45. This, in turn, will assist the Court, where competing constructions are available, to prefer a construction that would promote the purpose or object underlying the provision: s.33 Interpretation Act 1987.

91. [223]

    The extrinsic material to which reference has been made sheds considerable light upon the purpose or object underlining the provision.

92. [224]

    I will return to this aspect when addressing principles of statutory construction. What has been said so far is sufficient to emphasise why I consider it highly relevant in this case to take into account an expansive range of extrinsic material bearing upon the important question falling for decision.

93. [225]

    The submissions for the Accused persons under these headings arise from the formula of words used in s.45(1)(a) - “a person who … excises, infibulates or otherwise mutilates …”.

94. [226]

    The noscitur a sociis rule calls for the meaning of a word or phrase to be derived from its context. In the present case, the context of the phrase under consideration is broad and may be found or contributed to by factors both inside and outside the section.

95. [227]

    In Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388, Spigelman CJ noted, at 391-392 [13], that the noscitur a sociis rule (the general principle of the law of interpretation that the meaning of a word can be gathered from its associated words) had a number of specific sub-principles with respect to the immediate textual context, with the most frequently cited principle being the ejusdem generis rule.

96. [228]

    It was submitted for the Accused persons (see [129] above), that a genus could be found in the phrase under consideration so as to invoke the ejusdem generis rule.

97. [229]

    Courts have recognised difficulty in application of the ejusdem generis rule where the word “otherwise” appears in the relevant phrase. This point was made by Windeyer J in Crowe v Graham [1968] HCA 6; 121 CLR 375 at 388 and by Sugerman P (Holmes JA and Taylor AJA agreeing) in Purdon v Dittmar (1972) 1 NSWLR 94 at 98-99. See Pearce and Geddes, above, paragraph 4.29.

98. [230]

    In Purdon v Dittmar, Sugerman P explained the point in the following way at 98-99 (incorporating a passage from the judgment of Windeyer J in Crowe v Graham) (emphasis added):

99. [231]

    I do not accept the defence submission that, as a matter of construction, there is a genus with a common characteristic being causation of “serious injury”. Rather, the phrase in s.45(1) uses the words “excises” and “infibulates” and then moves, by words of expansion, using the term “otherwise mutilates”.

100. [232]

     In my view, the section may be construed appropriately as the legislature using two specific terms well recognised in the area of FGM (“excises” and “infibulates”) and then moving by way of an expansive third category (“otherwise mutilates”) to incorporate all other forms of FGM which section 45 itself was intended to prohibit.

101. [233]

     I do not think that application of syntactical presumptions operates to assist or support the submission advanced by the Accused persons in this case.

102. [234]

     A discrete submission was made by Mr Bouveng, inviting a comparison between the Crown submission as to the meaning of “mutilates” in s.45(1) Crimes Act 1900 and an element of the alternative counts of assault occasioning actual bodily harm under s.59(2) Crimes Act 1900 as contained in Counts 2, 4, 6, 8, 10 and 12 of the Indictment. It was submitted that, if the Crown submission was accepted, the conduct falling within the term “mutilates” in s.45(1) would, in effect, be less than that required to constitute “actual bodily harm” for the purpose of s.59(2) of the Act.

103. [235]

     The Crown pointed to the separate origins of these provisions and submitted that the meaning of the term “actual bodily harm” in s.59(2) did not bear upon the proper construction of s.45 of the Act. It submitted, as well, that the confined operation of s.45 (to the female genital area) was relevant, by way of contrast with the general application of s.59(2) to any part of the body of a person.

104. [236]

     As directions will need to be formulated in due course concerning the elements of the s.59(2) offence as charged in the Indictment, it is appropriate at this point say something about this submission.

105. [237]

     In McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549, with the agreement of Macfarlan JA and Blanch J, I said at 558-559 [40]-[44]:

106. [238]

     I do not discern from what was said at 558 [44] concerning the term “actual bodily harm”, any aspect which assists the Accused persons in the resolution of the present question.

107. [239]

     It must be borne in mind that s.45(1) is directed to procedures undertaken in a delicate, sensitive, intimate and precise part of the female anatomy, usually of a young girl. As I have said, the proper meaning of the word “mutilates” will keep this aspect clearly in mind. An offence under s.59(2) however, involves the infliction of actual bodily harm to any part of the body of the alleged victim. I see nothing in this part of the submissions which assists the Accused persons.

Conclusion Concerning The Proper Construction of the Words “Otherwise Mutilates” in s.45(1) Crimes Act 1900

1. [240]

   I have set out, at considerable length, my analysis of matters advanced by the parties as bearing upon the proper construction of s.45(1) Crimes Act 1900. As would be apparent, the issue raised in these proceedings is a novel one, not considered previously by a superior court in this country.

2. [241]

   The relative novelty of the proceedings, and the legal and factual issues raised by them, no doubt contributed to the decision of the Chief Justice to authorise the present trial to proceed in this Court under s.128 Criminal Procedure Act 1986.

3. [242]

   The ordinary meaning of the word “mutilates” is not to be found by reference solely to dictionary definitions of that term. The ordinary meaning to be accorded to the term should take into account the context in which the word appears and the purpose or object of the provision: s.34(1) Interpretation Act 1987.

4. [243]

   In this case, the relevant context includes the fact that the word “mutilation” forms part of a concept described as FGM. The word “mutilates” in s.45(1) was not selected by the legislature in a vacuum. Rather, the word should be understood as part of a formula of words (FGM) which itself has now taken on its own dictionary meaning (see [157]-[159] above). The term FGM has been described in various ways, including “a collective name” (see paragraph 2.01 of the Family Law Report at [181] above) or “umbrella term” (see Mr Speakman’s speech at [218] above).

5. [244]

   The meaning and use of the word “mutilates”, in other factual and legal contexts, provides no real assistance to the resolution of the present question.

6. [245]

   As the long title to the 1994 FGM Act and the heading to s.45 itself make clear, the legislation is directed to the prohibition of FGM. The conduct sought to be prohibited by the section is, according to the material referred to so far in this judgment, usually performed by non-medical persons operating in circumstances of some secrecy and using instruments not designed for surgery. This characterisation is not intended to in some way define FGM. Rather, it is intended to place, in a practical context, the conduct which s.45 is intended to prohibit or eradicate.

7. [246]

   At the forefront of resolution of this issue is the fact that any FGM procedure will be directed, as a matter of course, to the sensitive and intimate female genital area, usually of young girls. To attempt to prescribe what conduct fell inside or outside the terms of s.45(1) would be fraught with difficulty, when it has been recognised that substantial margin for error may well surround the performance of FGM procedures generally (see paragraph 2.01 of the Family Law Council Report at [181] above).

8. [247]

   The strongest argument in support of the defence construction is the reference by the Minister in the Second Reading Speech in the Legislative Council in 1994 to three categories intended to be covered by the legislation, with the third being “sunna” (see [190] above). The term “sunna” was explained (to some extent) in the Second Reading Speech and was further considered in the report of the Family Law Council (see paragraph 2.04 of the Family Law Council Report at [182] above). On this approach, s.45(1) would presumably not extend to conduct described by the Family Law Council as “ritualised circumcision” (see [182] above), where the clitoris may be scraped or nicked or to WHO Type 4 conduct, involving harmful procedures for non-medical purposes, including pricking, piercing, incising, scraping and cauterising (see [204] above).

9. [248]

   A difficulty with this approach is that even the term “sunna” lacks precision. As used in the Family Law Council Report, it involves removal of the clitoral prepuce or hood, leaving the glans and body of the clitoris intact (see [182] above). To cut out or off part of the female anatomy in this way itself would constitute an excision. On this approach, what work is to be done by the words “otherwise mutilates”?

10. [249]

    In my view, the appropriate course is to look at the purpose or object of the legislation, and to consider which construction would promote that purpose or object: s.33 Interpretation Act 1987. I would reduce the competing constructions to the following propositions:

11. [250]

    In the unusual circumstances of s.45, where its legislative origin is linked inextricably with invocation of the criminal law and education of the community with a view to prohibition and eradication of FGM procedures, the education material referred to earlier provides assistance to the Court. At the least, this material, taken with other publications in evidence, serves to demonstrate that the defence construction of the provision would serve to undermine, rather than promote, the intention of the legislature to prohibit FGM procedures.

12. [251]

    I do not think that resolution of the present question is assisted by recourse to Parliamentary debates in the United Kingdom. A defence submission by reference to some statements made in 1983 in the House of Lords does not, in my view, assist the construction of a local statute in this State.

13. [252]

    I do not consider that the location of ss.45 and 45A in Division 6 of Part 3 Crimes Act 1900 operates against the construction advanced by the Crown. The offences involve the causation of injury to the person, importantly, in a sensitive and intimate part of (usually) a young girl’s body. They fall within the general description of “Offences Against the Person” and “Acts Causing Bodily Harm”.

14. [253]

    Nor do I consider that the defence submission concerning female genital cosmetic surgery (see [131] above) assists the resolution of the present construction issue. The 2013 Commonwealth Attorney General’s Department Review noted that the role of such surgery had been raised on the review. The Report said (Exhibit PTP, Tab 23, page 9):

15. [254]

    The practical answer to this aspect is that investigatory and prosecutorial discretion will limit attention being given to female genital cosmetic procedures undertaken on consenting adults, even if the conduct in question was capable technically of falling within s.45. It may be taken that the authorities will direct their attention to the well-recognised context in which FGM occurs, as exposed in extrinsic material including the community education publications, in use for many years.

16. [255]

    I do not think that the construction advanced by the Crown involves any form of statutory overreach. The degree of injury or harm established in a particular case under s.45 Crimes Act 1900 would be relevant to the question of penalty if a person or persons were convicted of the offence: s.21A(2)(g), (3)(a) Crimes (Sentencing Procedure) Act 1999.

17. [256]

    In approaching this construction question, I have kept firmly in mind the statements of Bathurst CJ in Rail Corporation New South Wales v Brown (see [136] above) and of the High Court of Australia in Milne v The Queen (see [138] above). The task of the Court is to construe s.45. It is not for the Court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose. The purpose of construction does not justify a court in expanding the scope of a criminal offence beyond its textual limits.

18. [257]

    In the construction or interpretation of a statute, the object of the court is to ascertain, and give effect to, the will of Parliament: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 418 [8] (Gleeson CJ). I am satisfied that the construction of s.45(1) advanced by the Crown, which I accept reflects the will of Parliament. It arises after application of relevant principles of statutory construction, including application of ss.33 and 34 Interpretation Act 1987.

19. [258]

    Accordingly, I accept the Crown submission as to the directions to be given to the jury in this case (see [110] above). I reject the submission made on behalf of the Accused persons in this respect (see [111] above).

The Meaning of the Word “Clitoris” in s.45(1) Crimes Act 1900

1. [259]

   The counts in the Indictment charging offences under s.45(1)(a) Crimes Act 1900 allege that the relevant Accused “mutilated the clitoris” of C1 or C2.

2. [260]

   In the course of oral submissions, it became clear that it may be necessary for the Court to construe the word “clitoris” as used in s.45. This arose, in particular, given reference in the submissions to injury to the clitoris or other areas, including the prepuce of the clitoris.

3. [261]

   In written submissions dated 20 August 2015, the Crown submitted that the prepuce, also known as the clitoral hood, should be considered as part of the clitoris. Given that the prepuce is a fusion of the labia minora and the clitoral glans, the Crown accepted that it could also be considered part of the labia minora. In the context of s.45, it was submitted that the term “clitoris” should be given a wide meaning.

4. [262]

   In defence written submissions dated 20 August 2015, it was submitted that the prepuce does not form part of the clitoris, and that a direction along these lines should be given to a jury at trial.

5. [263]

   The defence written submissions point to a number of dictionary definitions of “clitoris” and “prepuce”:

6. [264]

   Both the Crown and counsel for the Accused persons took the Court to parts of the report of Dr Marks concerning the clitoris, prepuce and other relevant terms.

7. [265]

   The defence written submissions refer, as well, to a provision in the Prohibition of Female Genital Mutilation (Scotland) Act 2005 which referred more expansively to the performance of an action “to the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of another person”. It was said that the Scottish Parliament had adopted a formula which demonstrated that the prepuce of the clitoris was separate to the clitoris itself, but that it was included for the purpose of FGM legislation in that jurisdiction.

8. [266]

   I have set out the competing submissions on this topic in this judgment. Counsel have not addressed orally on the written submissions made on 20 August 2015.

9. [267]

   To an extent, the issue is capable of being moot. The definitions and medical reports serve to demonstrate that if the prepuce is not part of the clitoris, it is part of the labia minora. Both of these terms are used expressly in s.45(1)(a) Crimes Act 1900. Of course, if this construction operated, it may be necessary for the Crown to consider an amendment to the Indictment.

10. [268]

    However, as presently advised, I approach the meaning of the word “clitoris” in s.45 with a broader understanding of the context in which it is used, and the purpose or object of the provision. FGM procedures are not carried out by surgeons using proper instruments in the sterile surrounds of an operating theatre.

11. [269]

    That is not to say that the word “clitoris” takes on a very broad meaning incorporating parts of the female genital area which cannot, on any practical and sensible view, be considered part of the clitoris. It must be kept in mind that the legislature has identified three particular areas in s.45(1)(a) and has not used a broader term such as “genital area”.

12. [270]

    However, as presently advised, I am 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.

13. [271]

    In my view, this aspect need not be further progressed in this judgment. It is sufficient to express these provisional views, with the topic to be further addressed by counsel in the formulation of written directions on this aspect.

Conclusion

1. [272]

   For the reasons expressed in this judgment, I am satisfied that the jury should be directed at the trial of the Accused persons, with respect to the word “mutilates” in s.45(1)(a) Crimes Act 1900, in accordance with the submission advanced by the Crown.

2. [273]

   With respect to directions to be given concerning the term “clitoris” in the section, subject to any further submission, I have in mind directing the jury that the word “clitoris” in s.45(1)(a) is capable of including the prepuce of the clitoris.