R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427

R v A2; R v Magennis; R v Vaziri (No. 7) [2015] NSWSC 1427

The New South Wales Education Program on FGM evidence was relevant and admissible because it could assist the jury to assess Magennis' responses and alleged consciousness of guilt given her nursing and midwifery background, and could assist the jury to assess the accused persons' alleged development and use of the "Africa story" and "checking story" with A1. Its probative value was not outweighed by any danger of unfair prejudice under s.137 Evidence Act 1995. The Crown could adduce evidence of the program as applied up to September 2012, but the complete 2007 brochure should not be tendered because parts of it might cause confusion.

Jurisdiction
Australia
Judgment Date
28 September 2015
Procedural Posture
Criminal Prosecution Involving Charges of Female Genital Mutilation Under S.45 Crimes Act 1900 and Associated Charges / Evidentiary Ruling During Trial on Crown Tender of Evidence of the New South Wales Education Program on Female Genital Mutilation
Outcome
Crown permitted to adduce evidence of the New South Wales Education Program on Female Genital Mutilation against each accused, subject to the Court's ruling that the complete 2007 brochure should not be tendered.
Legal Topics
['female Genital Mutilation' 'admissibility of Evidence' 'relevance' 'unfair Prejudice' 'admissions' 'lies and Consciousness of Guilt' 'health Professional Education Material']
['criminal Law' 'evidence'] ['female Genital Mutilation' 'admissibility of Evidence' 'relevance' 'unfair Prejudice' 'admissions' 'lies and Consciousness of Guilt' 'health Professional Education Material']

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Procedural Posture

Criminal Prosecution Involving Charges of Female Genital Mutilation Under S.45 Crimes Act 1900 and Associated Charges / Evidentiary Ruling During Trial on Crown Tender of Evidence of the New South Wales Education Program on Female Genital Mutilation

Legal Issues

  1. 1 ['Whether evidence of the New South Wales Education Program on Female Genital Mutilation was relevant and admissible against Kubra Magennis given her registration and work as a nurse and midwife.' 'Whether the same education evidence was admissible against all accused persons through A1\'s position as a practising medical practitioner in New South Wales and his alleged involvement in developing the "Africa story" and the "checking story".' 'Whether the evidence was relevant in light of Professor Grover\'s evidence about FGM not happening in Australia and her reference to a "non-mutilating minor cut".' 'Whether the evidence should be excluded under s.137 Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice.' 'Whether the complete 2007 brochure entitled "New South Wales Education Program on Female Genital Mutilation" should be tendered as a physical exhibit.']

Ratio Decidendi

The New South Wales Education Program on FGM evidence was relevant and admissible because it could assist the jury to assess Magennis' responses and alleged consciousness of guilt given her nursing and midwifery background, and could assist the jury to assess the accused persons' alleged development and use of the "Africa story" and "checking story" with A1. Its probative value was not outweighed by any danger of unfair prejudice under s.137 Evidence Act 1995. The Crown could adduce evidence of the program as applied up to September 2012, but the complete 2007 brochure should not be tendered because parts of it might cause confusion.

Court Disposition

Crown permitted to adduce evidence of the New South Wales Education Program on Female Genital Mutilation against each accused, subject to the Court's ruling that the complete 2007 brochure should not be tendered.

Orders

  • ['The Crown is allowed to adduce evidence of the New South Wales Education Program on FGM as applied up to September 2012.' 'The complete 2007 brochure entitled "New South Wales Education Program on Female Genital Mutilation" should not be tendered.']