The Queen v A2 [2019] HCA 35

The Queen v A2 [2019] HCA 35

The appropriate construction of 'otherwise mutilates' in s 45(1)(a) of the Crimes Act 1900 (NSW) includes any injurious procedure upon the labia or clitoris where tissue damage results, and it is not confined to permanent injury. The term 'clitoris' is to be read purposively to include closely interrelated...

Source-derived case information.

Parties
Appellant: The Queen; Respondent: A2; Respondent: Kubra Magennis; Respondent: Shabbir Mohammedbhai Vaziri
Jurisdiction
Australia
Judgment Date
16 October 2019
Procedural Posture
Criminal Appeal / High Court Appeal From NSW Court of Criminal Appeal; Remitter Ordered
Outcome
Appeals allowed (by majority); matters remitted to the NSW Court of Criminal Appeal for further determination according to law
Legal Topics
Construction of S 45 Crimes Act 1900 (nsw), Female Genital Mutilation, Meaning of 'mutilates' and 'clitoris', Offence Provisions, Child Abuse
Criminal Law Statutory Interpretation Construction of S 45 Crimes Act 1900 (nsw) Female Genital Mutilation Meaning of 'mutilates' and 'clitoris' Offence Provisions Child Abuse

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Parties

The Queen

Appellant

A2

Respondent

Kubra Magennis

Respondent

Shabbir Mohammedbhai Vaziri

Respondent

Procedural Posture

Criminal Appeal / High Court Appeal From NSW Court of Criminal Appeal; Remitter Ordered

Legal Issues

  1. 1 Proper construction of 'otherwise mutilates' in s 45(1)(a) of Crimes Act 1900 (NSW)
  2. 2 Whether trial judge misdirected jury as to meaning of 'mutilate' and 'clitoris'
  3. 3 Whether evidence was sufficient to support guilty verdicts under s 45(1)(a)

Ratio Decidendi

The appropriate construction of 'otherwise mutilates' in s 45(1)(a) of the Crimes Act 1900 (NSW) includes any injurious procedure upon the labia or clitoris where tissue damage results, and it is not confined to permanent injury. The term 'clitoris' is to be read purposively to include closely interrelated anatomical structures. The trial judge did not misdirect the jury as to the meaning of 'mutilate' or 'clitoris'. Where other grounds succeed on appeal that are independent of this construction, the High Court must remit the matter to the Court of Criminal Appeal to consider sufficiency and unreasonableness of verdicts. The Court of Criminal Appeal cannot simply quash a conviction...

Court Disposition

Appeals allowed (by majority); matters remitted to the NSW Court of Criminal Appeal for further determination according to law

Orders

  • Appeal allowed (in each matter)
  • Set aside the orders of the NSW Court of Criminal Appeal made on 10 August 2018