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

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

In the context and purpose of s.45 Crimes Act 1900, directed to the prohibition and eradication of female genital mutilation, the word "mutilates" in s.45(1)(a) is not confined to cutting off, destroying or radically altering a body part. Applying ss.33 and 34 Interpretation Act 1987 and considering the legislative history and extrinsic material, including the Family Law Council report, Parliamentary debates, WHO classifications and community education material, s.45(1)(a) extends to the causing of any injury to the specified female genital organs for non-medical purposes. That construction best promotes the purpose of the legislation and remains within the statutory text.

Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Criminal Proceedings Involving Charges of Female Genital Mutilation, Assault Occasioning Actual Bodily Harm, and Accessory After the Fact Offences / Pretrial Ruling on Proposed Jury Directions and Statutory Construction of S.45(1)(a) Crimes Act 1900
Outcome
The Court accepted the Crown construction of "mutilates" and rejected the construction advanced by the Accused.
Legal Topics
['female Genital Mutilation' 'meaning of "mutilates" in S.45(1)(a) Crimes Act 1900' 'meaning of "clitoris" in S.45(1)(a) Crimes Act 1900' 'jury Directions' 'use of Extrinsic Material' 'purposive Statutory Construction']
['criminal Law' 'statutory Interpretation'] ['female Genital Mutilation' 'meaning of "mutilates" in S.45(1)(a) Crimes Act 1900' 'meaning of "clitoris" in S.45(1)(a) Crimes Act 1900' 'jury Directions' 'use of Extrinsic Material' 'purposive Statutory Construction']

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Procedural Posture

Criminal Proceedings Involving Charges of Female Genital Mutilation, Assault Occasioning Actual Bodily Harm, and Accessory After the Fact Offences / Pretrial Ruling on Proposed Jury Directions and Statutory Construction of S.45(1)(a) Crimes Act 1900

Legal Issues

  1. 1 ['Whether the word "mutilates" in s.45(1)(a) Crimes Act 1900 extends to any injury to any extent to female genital organs for non-medical reasons, or requires cutting off, destroying or radically altering the relevant body part.' 'Whether, for the purpose of jury directions, the word "clitoris" in s.45(1)(a) Crimes Act 1900 is capable of including the prepuce or clitoral hood.' 'Whether extrinsic material, including the Family Law Council report, Parliamentary debates, World Health Organisation classifications and New South Wales education material, may be used to construe s.45(1)(a) Crimes Act 1900.']

Ratio Decidendi

In the context and purpose of s.45 Crimes Act 1900, directed to the prohibition and eradication of female genital mutilation, the word "mutilates" in s.45(1)(a) is not confined to cutting off, destroying or radically altering a body part. Applying ss.33 and 34 Interpretation Act 1987 and considering the legislative history and extrinsic material, including the Family Law Council report, Parliamentary debates, WHO classifications and community education material, s.45(1)(a) extends to the causing of any injury to the specified female genital organs for non-medical purposes. That construction best promotes the purpose of the legislation and remains within the statutory text.

Court Disposition

The Court accepted the Crown construction of "mutilates" and rejected the construction advanced by the Accused.

Orders

  • ['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.' 'Subject to any further submission, the Court had in mind directing the jury that the word "clitoris" in s.45(1)(a) is...