https://www.dailytelegraph.com.au/truecrimeaustralia/police-courts/charges-dropp...Charges have been dropped against three people — a Sydney Islamic cleric, a midwife and a mother — who appealed their convictions after the genitalia of two little girls were allegedly “mutilated” in a cultural ceremony.
It now appears the landmark prosecution, the first of its kind, has been defeated even after the nation’s most powerful court ruled in its favour.
Shia cleric Shabbir Mohammedbhai Vaziri, midwife Kubra Magennis and a mother known by the pseudonym A2 were tried in 2015 for their alleged roles in a “khatna” ceremony which involves cutting a young girl’s clitoris to suppress sexuality through puberty.
A jury heard A2 asked Magennis to carry out the practice, which is linked to the trio’s Dawoodi Bohra culture but not religion, on A2’s own daughters when they were aged about seven years old.
The first ritual took place in about 2010 at a relative’s home in Wollongong, the second in about 2012 at a Sydney home.
The implement used was described in evidence as being silver and similar to scissors.
“(One girl) confirmed that when the procedure was done to her, she had been told to close her eyes and imagine that she was a princess in a garden, and that following the procedure she had a drink of lemonade and a shower,” court documents state.
“(She) confirmed that when the procedure was done to her she felt ‘a bit of pain and then a weird sort of feeling’ in her private part.
The mother and midwife were found guilty of two counts of female genital mutilation and given 11 months in home detention while their community leader was imprisoned for 11 months, convicted of two counts of being an accessory to the gruesome ritual.
It was the first time a jury had convicted people for such crimes.
But the trio took their case to the NSW Court of Criminal Appeal, disputing the judge’s definition of “mutilate”; he had told the jury the girls’ just needed to have been injured “to any extent” by Magennis’ procedure.
The trio had never disputed the “ritual” took place but argued they had not really hurt or scarred the girls, and therefore it was not mutilation.
The appeal court overturned their convictions and acquitted them on all charges in August 2018.
But prosecutors took it to the High Court who found the original definition of “mutilate” should stand.
“(The khatna) was described as ‘skin sniffing the steel’, and as involving no nicking or cutting and therefore no damage or injury to the complainants,” the high court summed up.
“The Crown submitted that this concept was bizarre and implausible.”
The High Court’s decision meant the case went back to the Court of Criminal Appeal where the trio were ordered to face a retrial.
But on Friday, with Justice Elizabeth Fullerton preparing to formally record the trio’s pleas and set a date for trial, the case came to an abrupt end.
The NSW Director of Public Prosecutions was withdrawing all charges, the court heard.
The mother, cleric and midwife were not in court as the eight-year legal saga wrapped up.
Prosecutors did not explain the decision in court but the DPP, in a statement to The Daily Telegraph, said they had decided not to proceed to retrial because of “discretionary reasons”.The High Court, handing down its decision last year, had warned a second trial could harm the girls at the centre of the historic case.
“The trial judge, in considering whether (the girls) were compellable to give evidence against their mother, accepted that there was a likelihood that psychological harm might be caused to them,” one judge wrote.
“There could be little doubt that a second trial would compound that distress.”
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