Case commentaries

Date01 April 2019
Published date01 April 2019
DOI10.1177/1365712719834685
Subject MatterCase commentaries
EPJ834685 220..226 The International Journal of
Evidence & Proof
Case commentaries
2019, Vol. 23(1-2) 220–226
ª The Author(s) 2019
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DOI: 10.1177/1365712719834685
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Relevance; competence; discretion to exclude; examination;
cross-examination; expert opinion evidence; coincidence evidence;
tendency evidence; post-offence conduct; presentation of evidence—
New South Wales, Australia
A2 and Kubra Magennis were each charged with two counts of female genital mutilation, pursuant to
sections 45(1)(a) of the New South Wales Crimes Act 1900. The Crown alleged that Magennis had, with
the assistance of A2, cut the clitoris of each of A2’s daughters (C1 and C2) in a procedure known as
‘khatna’. This was done as part of a ceremonial practice followed by the Dawoodi Bohra community, of
which A2 and Magennis were members. Shabbir Vaziri was also convicted as an accessory. He was head
cleric and spiritual leader of the Dawoodi Bohra community in Sydney. Vaziri encouraged other
members of the community to lie to police about their belief in, or practising of, female genital mutila-
tion, and told A2’s husband to present a false account of how C1 and C2 could have sustained their
injuries. At trial, defence counsel argued that the ceremony in which the complainants had participated
was merely ‘symbolic’—that no actual cutting had taken place. Nonetheless, all three were convicted.
In a lengthy ruling, the New South Wales Court of Criminal Appeal overturned the convictions and
ordered an acquittal. In reaching that conclusion, the CCA considered a wide range of substantive,
procedural, and evidentiary issues. Importantly, the CCA accepted fresh evidence on appeal, showing
that ‘the top of the clitoral head or glans ha[d] not been removed from either complainant’. Moreover, the
CCA found that s. 45(1)(a) of the Crimes Act requires proof of ‘injury or damage which rendered the
clitoris imperfect or irreparably damaged in some way’ [586]. Given the fresh medical evidence,
showing no such damage, the CCA found that no jury, properly instructed, could have convicted the
defendants of female genital mutilation. Nor, given the frailties of other evidence adduced at trial, did the
CCA think it appropriate to order a new trial on the alternate charges of assault causing actual bodily
harm. Here, we will focus exclusively on the complaints raised about that evidence.
The evidence of Dr X
A number of issues concerned the expert opinion evidence provided by ‘Dr X’. Dr X had been raised in
the Dawoodi Bohra community in Mumbai, and had experienced genital cutting as a child in 1950 or
1951. As an adult, she had studied and researched female circumcision in the Dawoodi Bohra commu-
nity in India, writing about the nature and extent of the procedure as it was practiced in 1990/1991. Dr X
was allowed to testify on matters pertaining to the ‘alleged performance of Khatna or female circumci-
sion in the Dawoodi Bohra community’, as well as ‘the social and hierarchical structure of the Dawoodi
Bohra community’ [646].
On appeal, the defendants argued that this evidence was irrelevant, inasmuch as it pertained to
experience and study of the Dawoodi Bohra community in India rather than New South Wales or Africa
(from which A2 and Magennis had come), and of practices of the community in the early-1950s and
early-1990s. The CCA rejected this argument, observing that ‘[t]he question of relevance is not deter-
mined by the capacity of the evidence by itself to prove the fact in issue, but is to be determined in the

Case commentaries
221
context of other evidence either admitted or subsequently to be admitted’ [671]. Importantly, there was
other evidence supporting the claim that the Dawoodi Bohra community in New South Wales was
hierarchical in nature. Moreover, Dr X had testified that the khatna procedure had not changed over
time. Though this testimony carried little weight, it would, if accepted by the trier of fact, further the
inference that genital cutting had taken place during the procedure described by one of the complainants.
The CCA stated:
The Court has concluded that his Honour did not err in determining that Dr X’s evidence as to the khatna
procedure in India in the 1990s (or indeed over the period spanning 1950 through to 1991 when her article
was published) was relevant to the issues in the trial notwithstanding its temporal and geographical limita-
tions. If the hierarchical nature of the Dawoodi Bohra community (of which there was ample evidence), and,
more particularly, the static nature of the khatna procedure (in relation to which the evidence carried less
weight, since it was based on little more than Dr X’s personal perception as a member of the community)
were to be accepted, then Dr X’s evidence of the nature of the procedure could rationally affect the deter-
mination of the critical issue as to what had in fact happened to C1 and C2 during the respective ceremonies.
[672]
The defendants also objected that Dr X’s testimony was not based on any specialised knowledge; that,
to the extent she purported to testify about the practices of the Dawoodi Bohra community in New South
Wales or more generally, she lacked the necessary expertise. The CCA also rejected this argument,
noting that, based on Dr X’s experiences and research, she had the required expertise to testify about the
practice of khatna...

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