R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221

Supreme Court New South Wales

Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 Hearing dates: 19 August 2015 Decision date: 27 August 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: For the reasons expressed in this judgment, 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. 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. Catchwords: CRIMINAL LAW – female genital mutilation – persons charged with mutilating clitoris of child contrary to s.45(1)(a) Crimes Act 1900 – consideration of directions to be given to jury concerning elements of the offence – phrase "excises, infibulates or otherwise mutilates" in s.45(1)(a) – meaning of the word "mutilates" – Crown submits that includes any injury to any extent for non-medical reasons – Defence submits that requires cutting off, destroying or altering radically – meaning to be construed by the context of the section and the purpose or object of the legislation – s.45 intended to prohibit female genital mutilation in all its forms where injury results –construction which serves to promote the purpose or object of s. 45 to be favoured – consideration of extrinsic material – application of ss.33 and 34 Interpretation Act 1987 – jury to be directed that "mutilates" in s.45 extends to any injury for non-medical purposes – proper construction of "clitoris" in s. 45 Crimes Act 1900 – whether "clitoris" includes the prepuce or clitoral hood Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Crimes (Female General Mutilation) Amendment Act 1994 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Female Genital Mutilation) Act 2014 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Criminal Procedure Act 1986 Evidence Act 1995 Family Law Act 1975 (Cth) Female Genital Mutilation Act 2003 (UK) Interpretation Act 1987 Prohibition of Female Genital Mutilation (Scotland) Act 2005 Surveillance Devices Act 2008 Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Agius v R [2011] NSWCCA 119; 80 NSWLR 486 Crowe v Graham [1968] HCA 6; 121 CLR 375 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 Doney v The Queen [1990] HCA 51; 171 CLR 207 Falconer v Pedersen [1974] VR 185 House of Peace Pty Limited v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 In the Matter of B and G (Children) (No. 2) v Leeds City Council and Ors [2015] EWFC 3 McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 Milne v The Queen [2014] HCA 4; 252 CLR 149 Monis v The Queen [2013] HCA 4; 249 CLR 92 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Purdon v Dittmar (1972) 1 NSWLR 94 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 Wilson v Anderson [2002] HCA 29; 213 CLR 401 Texts Cited: Pearce and Geddes, "Statutory Interpretation in Australia", Lexis Nexis Butterworths, 8th Edn, 2014