R v A2; R v KM; R v Vaziri (No. 3)

1. [1]

   JOHNSON J: The Crown seeks to adduce opinion evidence from Dr Rehana Ghadially at the trial of the Accused persons, A2, KM and Shabbir Mohammedbhai Vaziri. Objection is taken on behalf of the Accused persons to the admissibility of the evidence of Dr Ghadially upon the following alternative bases:

2. [2]

   The charges against the Accused persons were set out in R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 (“R v A2 (No. 2)”) at [7]-[9]. The Crown case against the Accused persons, as drawn principally from the Crown Case Statement, was set out in R v A2 (No. 2) at [10]-[86]. Also mentioned in R v A2 (No. 2), at [87]-[95], were matters bearing upon the real issues in the forthcoming trial of the Accused.

3. [3]

   Reference was made, as well, in that judgment to an aspect of the evidence of Dr Ghadially presently under objection: R v A2 (No. 2) at [45].

The Evidence of Dr Ghadially

1. [4]

   Dr Ghadially gave evidence on the voir dire (PT341-494) and a volume of documents were tendered by the Crown with respect to her evidence (Exhibit PTG). The Court has received written submissions on the admissibility of the evidence of Dr Ghadially (MFIs 11, 21, 22 and 31). Oral submissions were made yesterday on that topic (PT553-590).

2. [5]

   Dr Ghadially (now 70 years old) has tertiary qualifications in psychology and science. She was born into the Dawoodi Bohra (or Daudi Bohra) community in India and has been part of that community for many years. She has undertaken research into the Dawoodi Bohra culture, in particular the role of women in that community. She has written in the area of women’s issues, including women’s rights, in India. Specifically, she undertook research in about 1990 leading to the publication of an article entitled “All For ‘Izzat’”, published in the journal “Manushi” in September-October 1991. The subtitle for this article was “The Practice of Female Circumcision Among Bohra Muslims”.

3. [6]

   Dr Ghadially gave evidence that she herself had undergone a form of female circumcision, described as “Khatna”, when she was about six or seven years old (in about 1950). It was a combination of this experience, taken with her specific research in 1990-1991, and her general life experience in the Dawoodi Bohra community which has led the Crown to seek to adduce expert opinion evidence from her with respect to female circumcision in the Dawoodi Bohra community.

4. [7]

   The Crown submits that Dr Ghadially is able to give admissible evidence on issues bearing upon the facts in issue at the forthcoming trial of the Accused persons. A contrary submission is made on behalf of the Accused persons.

Facts in Issue

1. [8]

   It is the Crown case that KM mutilated the clitoris of each of C1 and C2, in the presence of A2, their mother. The Crown alleges that this was done as part of a process described as Khatna or female circumcision. The Crown alleges that Mr Vaziri was an accessory after the fact to the offences of KM and A2.

2. [9]

   It appears that there will be no real issue at the trial that, on separate occasions, each of C1 and C2, whilst lying down and naked from the waist down, was touched by KM in the presence of A2.

3. [10]

   The issues at the trial will include:

4. [11]

   In support of its case, the Crown seeks to adduce evidence from Dr Ghadially under the following headings (which are better particularised in MFI31):

5. [12]

   I will return to MFI31 later in these reasons.

The Relevance Objection

1. [13]

   Sections 55 and 56 Evidence Act 1995 are in the following terms:

2. [14]

   The appropriate enquiry for the purpose of determining relevance under s.55 Evidence Act 1995 focuses upon the capability of the evidence to affect the determination or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 270 at [145]-[146]. It does not direct attention to what a tribunal of fact is likely to conclude. For the purposes of assessing this capability, it is assumed that the evidence would be accepted by the tribunal of fact and it is taken at its highest: R v Sood [2007] NSWCCA 214 at [38].

3. [15]

   Section 55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language and suggests a wide rather than a narrow focus to the enquiry whether a proffered piece of evidence has the rational potential which s.55 requires: R v Le [2000] NSWCCA 49 at [19]; R v Pham [2005] NSWCCA 9 at [95].

4. [16]

   In approaching an objection based on relevance, it is necessary to keep in mind the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen [2001] HCA 50; 206 CLR 650 at 653-654 [6]-[7] (footnotes excluded):

5. [17]

   In Evans v The Queen [2007] HCA 59; 235 CLR 521, Gummow and Hayne JJ said at 529 [23] (footnotes excluded):

6. [18]

   In the same case, Kirby J stated at 546-547 [95]-[98] (footnotes excluded):

7. [19]

   Case law establishes that the application of s.137 does not involve the Court weighing possible alternative explanations or competing inferences in determining whether to exclude evidence under s.137: R v Burton at 266 [134], 272-273C [156]-[162], 280 [196]-[197]. It is self-evidently the case that a ruling as to relevance under ss.55 and 56 does not require or permit the Court to have regard to alternative explanations or competing inferences in determining the antecedent question of relevance. Nor does the Court consider issues concerning reliability of evidence at this point.

8. [20]

   The ultimate fact in issue in the present trial is whether or not KM and A2 participated in the performance of acts upon C1 and C2 which constituted FGM under s.45 Crimes Act 1900. Behind those ultimate issues, there are many issues of fact relevant to the facts in issue, including what is stated at [10](b) above.

9. [21]

   If otherwise admitted, I am satisfied that the evidence of Dr Ghadially is capable of shedding light upon issues falling for determination by the jury. Evidence of Dr Ghadially concerning the alleged performance of Khatna or female circumcision in the Dawoodi Bohra community, the social and hierarchical structure of the Dawoodi Bohra community and a number of the issues identified by the Crown in MFI31 satisfy the undemanding threshold of relevance for the purpose of the Evidence Act 1995.

10. [22]

    Having so concluded, it is appropriate to consider the provisions concerning opinion evidence and the submissions made by reference to the particular topics identified by the Crown.

Objection to Opinion Evidence

1. [23]

   Section 76 Evidence Act 1995 provides:

2. [24]

   Section 79 of that Act provides:

3. [25]

   Section 79(1) requires the proposed expert witness to possess “specialised knowledge based on the person’s training, study or experience”. If that person possesses such knowledge, to satisfy s.79(1), the proffered opinion must be “an opinion of that person that is wholly or substantially based on that knowledge”.

4. [26]

   In HG v The Queen [1999] HCA 2; 197 CLR 414, Gaudron J, at 432 [58]-[60], observed that, if otherwise relevant, expert evidence is admissible with respect to matters about which ordinary persons are unable to form a sound judgment without the assistance of those possessing specialised knowledge or experience. The knowledge or experience may be of some matter outside the experience and knowledge of the judge and jury.

5. [27]

   In Harrington-Smith v State of Western Australia [2003] FCA 893; 130 FCR 424, Lindgren J said at 428 [20]:

6. [28]

   In R v Tang [2006] NSWCCA 167; 65 NSWLR 681, Spigelman CJ (Simpson and Adams JJ agreeing) said at 712 [137]-[138]:

7. [29]

   Later in R v Tang, Spigelman CJ referred, at 714 [147]-[150], to well-known passages in other cases which have emphasised the need for attention to requirements of form:

8. [30]

   An opinion is an inference drawn from observed and communicable data: Honeysett v The Queen [2014] HCA 29; 253 CLR 122 at 130-131 [21].

9. [31]

   In Honeysett v The Queen, the Full High Court said with respect to s.79 at 131-132 [23]-[25] (footnotes excluded):

10. [32]

    In Tuite v R [2015] VSCA 148, the Victorian Court of Appeal (Maxwell ACJ, Redlich and Weinberg JJA) provided, at [70]-[77], the following helpful summary of principles concerning s.79 (footnotes excluded):

11. [33]

    With these principles in mind, I turn to the opinions which the Crown seeks to adduce from Dr Ghadially.

12. [34]

    Keeping in mind the principles in Honeysett v The Queen (see [31] above), I accept that there is a field of specialised knowledge involving the practice of Khatna or female circumcision in the Dawoodi Bohra community. This is knowledge which is outside that of persons (such as jurors or judges) who have not, by training, study or experience, acquired an understanding of the subject matter. This specialised knowledge was acquired by Dr Ghadially by experience as well as study and research. It has resulted in the acquisition of knowledge, involving acquaintance with facts, truth or principles (from experience, study and research) and going beyond mere subjective belief or unsupported speculation. Her knowledge applies to a body of known facts, or a body of ideas inferred from such facts or accepted as truths on good grounds.

13. [35]

    In reality, there may be very few persons who are qualified to give expert opinion evidence in this field, given the unusual nature of the subject matter. I am satisfied that Dr Ghadially is so qualified.

14. [36]

    I accept that Dr Ghadially has specialised knowledge of aspects of the Dawoodi Bohra community in India, based on her training, study or experience. This includes:

15. [37]

    Before moving to particular areas upon which the Crown seeks to rely, I should address a submission made for the Accused persons. In a statement dated 10 March 2015 (Exhibit PTG, Tab 4), Dr Ghadially was asked and answered:

16. [38]

    The defence submission was that this response (in particular, the reference to “educated guesses”) pointed to Dr Ghadially’s opinions not passing the test posed by s.79.

17. [39]

    I have approached the issues falling for determination by reference to the extensive oral evidence given by Dr Ghadially, as well as the contents of statements. It is, of course, for the Court to determine whether the requirements of s.79 have been met. Having done so, I am so satisfied.

18. [40]

    To the extent that the defence argued that Dr Ghadially’s own experience may be impermissibly seen as a form of coincidence evidence (relevant to what happened to C1 and C2), I note that this is not the purpose of the present ruling. Dr Ghadially’s personal experience is to be taken with her study and research to found relevant expertise. What other use, if any, may be made of her evidence is a matter for separate consideration.

19. [41]

    For the purpose of this ruling, I will now identify the matters in relation to which the Crown seeks to adduce opinion evidence from Dr Ghadially (MFI31).

20. [42]

    The Crown seeks to adduce the following evidence from Dr Ghadially with respect to the Khatna procedure (MFI31, paragraphs 1-13):

21. [43]

    I am satisfied that matters under this heading may be adduced as opinion evidence from Dr Ghadially. Evidence of this type will assist the jury in understanding and determining the facts in issue in these proceedings.

22. [44]

    Based upon Dr Ghadially’s own experience, and the study undertaken by her in about 1990 for the purpose of her 1991 article, Dr Ghadially may express these opinions based upon her specialised knowledge.

23. [45]

    A particular challenge was made to the topic contained in paragraph 7 of MFI31. Counsel for the Accused persons submitted that Dr Ghadially herself had an imprecise understanding of the anatomical area of the clitoris in relation to the prepuce of the clitoris, so that her evidence ought not be admitted with respect to this topic in any event.

24. [46]

    I bear in mind that Dr Ghadially is not being called to give expert medical evidence. Rather, her evidence relates to what she testifies as being a practice of the Dawoodi Bohra community to undertake Khatna or female circumcision by the making of a small cut on or in the area of the clitoris. I am satisfied that her opinion on this topic is admissible under s.79 and is capable of assisting the jury in the resolution of the facts in issue in this trial.

25. [47]

    With respect to Topic 9 in MFI31, I bear in mind that Dr Ghadially’s knowledge of this topic was acquired from her study, including discussions she had with a circumciser. I do not consider that the limited foundation of Dr Ghadially’s knowledge of this topic renders it inadmissible under s.79. Whether evidence of all the contents of this person’s box ought be allowed may be the subject of further submissions. I bear in mind the fact that the electronically recorded evidence includes reference to “scissors” (see R v A2 (No. 2) at [48], [80]) and that there is some material which has foreshadowed that KM will mention the use of “forceps” (MFI13). The evidence of Dr Ghadially that her study revealed that persons undertaking Khatna or female circumcision used items from a box for this purpose may bear upon the resolution of issues in the trial.

26. [48]

    Topic 10 of MFI31 refers to the asserted fact that there is usually no bleeding arising from the performance of Khatna. This is said to arise from Dr Ghadially’s own experience and information obtained during the course of investigations undertaken for her study and publication in 1991. I accept the Crown submission that this aspect is capable of bearing upon the resolution of a fact in issue given the accounts of C1 and C2 in the recorded interviews given by each girl.

27. [49]

    The Crown seeks to rely upon opinions concerning the aftermath of the Khatna procedure (paragraphs 14-17 of MFI31):

28. [50]

    Particular objection was taken to paragraph 14 upon the basis that the Crown was not required to prove motive and that the reason for the performance of the alleged procedure was not an element of the offence.

29. [51]

    I accept that Dr Ghadially may express an opinion, based upon her own experience and knowledge acquired by her for the purpose of her study and publication in 1991 with respect to these issues. I am satisfied that this bears upon the resolution of a fact in issue in this case, given that an important issue as between the parties will be the reason why C1 and C2 were touched by KM (see [10] above), with the answer to this question being capable of shedding light upon the issue whether, as the Crown alleges, what was being performed on each girl was Khatna or female circumcision.

30. [52]

    I have concerns with respect to Topic 17 of MFI31. There is no evidence of any examination by Dr Ghadially of herself, nor has she witnessed the Khatna procedure being undertaken on others or its aftermath. Dr Ghadially is not purporting to give expert medical evidence. I am not persuaded that Dr Ghadially is in a position to give admissible opinion evidence to the effect that it is very rare for the Khatna procedure to cause scarring to girls.

31. [53]

    The Crown seeks to adduce the following opinion concerning the suggested secret nature of the Khatna procedure (paragraph 18 of MFI31):

32. [54]

    I am satisfied that Dr Ghadially may give opinion evidence to this effect. Her own experience as a woman brought up in the Dawoodi Bohra community provides a platform of experience in this regard, together with the knowledge obtained from Dr Ghadially’s study and research for the purpose of her 1991 article, which included discussions with many women from the Dawoodi Bohra community.

33. [55]

    The Crown seeks to adduce the following evidence concerning the suggested static nature of the Khatna procedure (paragraphs 19-22 of MFI31):

34. [56]

    Counsel for the Accused persons have submitted that opinion evidence of this type should not be allowed. It was submitted that Dr Ghadially had experience of the Dawoodi Bohra community in India, but not in Africa or Australia. It was submitted that she was not in a position to give opinion evidence concerning procedures which may or may not be undertaken within the Dawoodi Bohra community in Australia.

35. [57]

    I propose to allow this evidence to be given. There is a foundation in the evidence of Dr Ghadially for an understanding of the suggested hierarchical structure of the Dawoodi Bohra community which is based in India, but has elements in other countries as well, including Australia. Dr Ghadially’s knowledge of the Indian structure is based upon her own long experience as a member of that community, and her observations including knowledge acquired during the course of her study and research for the 1991 article.

36. [58]

    Based upon this evidence, it is open to the Crown to invite the jury to draw an inference that the rules which are said to apply in India apply as well in Australia.

37. [59]

    I have kept in mind the defence submission that Dr Ghadially has not undertaken further studies of the Dawoodi Bohra community since 1991. However, she has been a member of that community and is, in my view, able to give admissible evidence concerning the continuing practices of that community in India.

38. [60]

    Of course, it will be open for counsel for the Accused persons to seek to challenge Dr Ghadially concerning Dawoodi Bohra practices in Australia, by cross-examination using documents or other means. Further, it is open to the Accused persons to adduce evidence with respect to the practices of the Dawoodi Bohra community in New South Wales. To raise this aspect is not to, in some way, reverse the onus of proof. Rather, it is to note that the process of the Court allowing evidence from Dr Ghadially on this aspect does not foreclose any evidentiary response by or on behalf of the Accused persons in this respect.

39. [61]

    I bear in mind, as well, that some of the electronic evidence, upon which the Crown relies, raises the scenario that some procedure may have been carried out on C1 and C2 in Africa and that examination of the girls was occurring to check if this was the case (R v A2 (No. 2) at [49], [54], [56], [57], [60], [63], [64], [76], [80]).

40. [62]

    It is open to the Accused persons to adduce evidence with respect to variations in local or African Dawoodi Bohra community practices, as against what Dr Ghadially may testify is the position applicable in India and, in her opinion, throughout the Dawoodi Bohra community worldwide.

41. [63]

    It will be open to the Accused persons to seek to rebut the opinion evidence of Dr Ghadially on this aspect at trial.

42. [64]

    The Crown seeks to adduce the following from Dr Ghadially concerning a ritualistic Khatna procedure (paragraphs 23-24 of MFI31):

43. [65]

    These opinions of Dr Ghadially appear to be based entirely upon knowledge acquired during her study and research for her 1991 article. I am satisfied that Dr Ghadially should be allowed to give this evidence.

44. [66]

    The Crown seeks to adduce the following from Dr Ghadially concerning the reason why the Khatna procedure is performed (paragraphs 25-30 of MFI31):

45. [67]

    These matters arise from a combination of Dr Ghadially’s own experience, her knowledge of the Dawoodi Bohra community and its structures and beliefs, and knowledge acquired by her for the purpose of her study and research in aid of her 1991 article.

46. [68]

    I am satisfied that Dr Ghadially should be allowed to give this evidence. With respect to Topic 28 of MFI31, Dr Ghadially’s opinion, based upon her own experience and knowledge acquired concerning Khatna for the purpose of her own research and writing on the topic, allows this evidence to be given.

47. [69]

    Evidence bearing upon the reason why Khatna is performed within the Dawoodi Bohra community upon young girls is relevant to the determination of a fact in issue in the trial.

48. [70]

    The Crown seeks to rely upon evidence of Dr Ghadially concerning the profile of the circumciser (paragraphs 31-36 of MFI31):

49. [71]

    The defence submission challenged the admissibility of this evidence, pointing to the fact that it was based apparently upon a conversation between Dr Ghadially and a single circumciser. It was submitted that this was not relevant evidence nor did it satisfy the requirements of s.79(1).

50. [72]

    I am satisfied that Dr Ghadially should be allowed to give this evidence. The evidence is based upon conversations which she had with a particular person, who resided in the same house where her own Khatna procedure had been undertaken many years before. Her evidence indicates, as well, that her discussions with women concerning Khatna within the Dawoodi Bohra community, for the purposes of her study and research, extended to persons who would carry out procedures of this type and in what circumstances.

51. [73]

    A fact in issue in these proceedings is what KM is alleged to have done to each of C1 and C2, and the reason why that was done.

52. [74]

    It is the Crown case that KM was, in effect, a circumciser in the Dawoodi Bohra community in Sydney. The Crown points to some material in the electronic recordings which, it is said, is capable of supporting this aspect.

53. [75]

    I am satisfied that Dr Ghadially is capable of giving admissible evidence concerning this aspect of Khatna or female circumcision as undertaken in the Dawoodi Bohra community in India, which she testifies is extended to Dawoodi Bohra communities outside India.

54. [76]

    The Crown seeks evidence from Dr Ghadially concerning the meaning of Khatna, Mohalla, Izzat and Gaan (paragraphs 37-40 of MFI31):

55. [77]

    I do not discern any real controversy concerning the meaning of the word “Khatna”. If the matter is not otherwise dealt with so that it is before the jury, I will allow Dr Ghadially to give evidence that Khatna means female or male circumcision.

56. [78]

    If otherwise relevant to the trial, the other terms may be the subject of evidence from Dr Ghadially, but I do not consider that a definitive ruling is required in this respect at this time.

57. [79]

    Accordingly, the areas identified in this part of the judgment will be permitted as opinion evidence under s.79, subject to the objection under s.137 to which I will now turn.

Objection Under s.137 Evidence Act 1995

1. [80]

   Section 137 provides as follows:

2. [81]

   With respect to s.137 Evidence Act 1995, it is necessary to keep in mind the statement of McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91] that evidence is not unfairly prejudicial “merely because it makes it more likely that the defendant will be convicted”. The relevant enquiry is whether the jury may misuse the evidence in some unfair way: Papakosmas v The Queen at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165].

3. [82]

   Unfairly prejudicial evidence is not evidence that advances the Crown case or weakens the defence case, but is evidence that is dangerous to the defence case in some way: R v Suteski [2002] NSWCCA 509 at [116]. There must be a risk that the evidence will provide some irrational, emotional or illogical response or a risk of the evidence being given more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

4. [83]

   The question to be considered with respect to the s.137 objection is whether there is a danger of unfair prejudice because there is a real risk that the jury will make improper use of the evidence of Dr Ghadially otherwise admitted. I have already expressed the view that Dr Ghadially’s evidence is both relevant (ss.55 and 56) and admissible opinion evidence (s.79) on matters bearing upon the resolution of the facts in issue in the trial.

5. [84]

   I am satisfied that the proposed evidence of Dr Ghadially has probative value. I am not persuaded that there is any danger of unfair prejudice in this case which ought lead to the exclusion of the evidence.

6. [85]

   The evidence of Dr Ghadially will provide assistance to the jury in understanding matters outside the experience and knowledge of jurors and judges; being the nature and practices of the Dawoodi Bohra community, with particular reference to Khatna or female circumcision. A critical issue in the trial is whether Khatna or female circumcision was, in fact, what was being undertaken on each of C1 or C2 on the occasions which are the subject of the charges.

7. [86]

   Counsel for the Accused persons may challenge the evidence of Dr Ghadially by cross-examination, and adduce such evidence in the trial which may bear upon the determination of the real issues in dispute in the trial. I am not persuaded that the evidence ought be excluded under s.137.

Conclusion

1. [87]

   I am satisfied that the evidence of Dr Ghadially, as summarised in this judgment, ought be admitted and that such evidence may be adduced by the Crown at the trial of the Accused persons.