LAST UPDATE | 27 Nov 2019
THE JURY IN the trial of parents accused of allowing FGM to be carried out on their young daughter have been told they have to make an “immensely important” decision.
The prosecution and defence today delivered their closing statements before Judge Elma Sheahan at the Dublin Circuit Criminal Court.
The girl’s parents, who can’t be named for legal reasons, pleaded not guilty last week to allowing FGM to be carried out on their daughter, who was almost two years old at the time, on 16 September 2016.
FGM refers to the ritual cutting or removal of some or all of the external female genitalia for non-medical reasons.
The man, aged in his 30s, and the woman, aged in her 20s, also pleaded not guilty to one count of child cruelty on the same day.
The parents, who have lived here for over a decade, claim their daughter sustained her injuries after falling on a toy. This version of events has been disputed by doctors who examined the girl after she presented at Our Lady’s Children’s Hospital, Crumlin (OLCHC).
In his closing statement, Shane Costelloe SC told the jury: “The prosecution has to establish beyond reasonable doubt that the accused are guilty of the two charges.”
He said the jury could convict both of the accused or one, or acquit both of the accused or one. He said the two accused are presumed to be innocent until if and when the 12 members of the jury find otherwise.
“It’s never up to them to prove their innocence, it’s up the State to prove their guilt.”
“In this case there are two contrary versions as to how [the girl] sustained her injuries. If you believe the version by the defendants that she sustained her injuries by accidentally falling on the toy, that is the end of the matter and you acquit them.
“If you don’t believe it but you decide that it could reasonably be possible, that means that you have a doubt and you acquit them.”
Costelloe said that if the jury instead believe the case put forward by the prosecution, that the accused aided and abetted, counselled or procured FGM, they must find them guilty.
“You have the evidence of the doctors in the case that state to you that it is not possible, not possible according to Dr (Deborah) Hodes, that [the girl] sustained her injuries by falling on that toy,” Costelloe told the jury.
He also referenced the evidence given by two doctors who treated and examined the girl at OLCHC, both of whom stated that her injuries were “not consistent with a fall on that toy”. He noted that the doctors said there was “no other bruising, no other lesions, no other marks” on the girl.
‘Not reasonably possible’
Costelloe asked the jury if they thought it is “reasonably possible” that the “glands and body of the clitoris were removed, not crushed, not otherwise damaged, but removed” during the alleged incident. If that explanation is not reasonable “by definition, the accused are lying about what they say happened to [their daughter]”.
If you decide that their explanation is not reasonably possible, you can make the decision that they are lying, and if they are lying you can take that lie as indicative of their guilt.
Costelloe noted that the State cannot prove the girl’s parents carried out FGM themselves and is not arguing this. The prosecution is arguing, he said, that the accused are “secondary participants” and “aided and abetted, counselled or procured” FGM to be carried out on their daughter.
Costelloe noted that Professor Thambipillai Sri Paran, who carried out a surgery to stop the girl bleeding, previously told the court that when she presented at OLCHC he concluded that her injuries occurred about four hours beforehand, when she was in the custody of her parents.
“They permitted [FGM] to be done to their daughter,” Costelloe said. He added that if the jury are satisfied beyond a reasonable doubt that this is true, they must find the accused guilty.
He stated that if they are guilty of the first count, FGM, “there can be little doubt that they are guilty of the second count” – allowing their child to be ill-treated.
Emotional case
In his closing statement, Colman O’Sullivan SC, who is defending the male accused, told the jury members they “are going to be making immensely important decisions”.
“It is essential that you do so in a completely objective way, almost, I’d go so far to say, in a cold-blooded way,” O’Sullivan stated.
He noted that the details of the case “could only arouse a great deal of upset and concern on a human level” but urged the jury members to not allow emotions to impact how they make their decision. He said their decision should be “solely and exclusively based on the evidence you’ve heard in the courtroom”.
“Most people come to conclusions quite quickly about things, they come to conclusions quite quickly about people,” he said, noting that this is normal. However, he said the jury must review all the evidence and make an informed decision on the matter.
O’Sullivan said there is “a particular need for the jury to be careful” when relying on expert evidence. He added that “it is normal to put weight, and to accept almost without question” what an expert says, especially in the case of doctors.
However, he said “none of that takes away from the fact” that the jury, not the experts, will decide the facts of the case. He said that if the jury believes that there is reasonable doubt about the prosecution’s case they are “bound to give [the accused] the benefit of the doubt”.
‘Loving parents’
O’Sullivan noted that the accused answered all questions asked of them by gardaí and cooperated fully throughout the investigation, giving consent for their daughter to be examined by doctors.
He told the jury the accused are “loving, caring, fond parents” of their children, noting that the jury members have to decide if the accused “would allow their daughter to be mutilated in this way”.
This is not a dysfunctional family, this is not a family where there is any history of abuse, neglect, cruelty, as unfortunately can happen in some families.
O’Sullivan told the jury that even if they believe the doctors’ evidence, they’re “halfway at best” to finding the accused guilty. He said the prosecution failed to present evidence about who may have carried out FGM if it occurred, or any evidence about how his client aided and abetted it to take place.
O’Sullivan said there “seems to be a fundamental inconsistency” between how Paran and Hodes described the layout of female genitalia. Paran last week said the labia minora and labia majora are both above the clitoris. Hodes yesterday said in her evidence that the labia is below the clitoris.
When O’Sullivan questioned Hodes about this yesterday, she agreed that there “seems to be” an inconsistency but noted that “very little [academic] work” on the anatomy of the clitoris has been carried out. She added that the labia is “neither under or over the clitoris because [the lips] meet”.
O’Sullivan recalled that Dr Sinéad Harty, a paediatrician at OLCHC who examined the girl, last week told the court there was a “lack of external bruising”, however there was a query in her notes about a possible lesion on the labia minora. “Ultimately she had formed the view that there was no injury to the labia minora,” O’Sullivan said.
He stated that Paran last week told the trial that he noted a laceration on one side of the girl’s labia minora. Paran said he initially thought the labia minora “may be gone” too but a later examination carried out by him and colleagues found it “was still there but had been cut”.
O’Sullivan said there appeared to be a “lack of certainty” among the doctors about aspects of the girl’s injury and the possible presence of a cut on her labia. O’Sullivan said the jury, based on the evidence before them, should have “very significant doubt” that his client is guilty of the two charges.
No evidence of restraint or sedation
Patrick Gageby SC, who is representing the female accused, noted that his client has never come to the attention of gardaí before this case.
“Barring this accusation, this was a very well cared for, well groomed, well nourished, well-cared-for child, a child who interacts well with her parents – the point being that children who are ill-treated by their parents don’t interact well with them,” Gageby told the court.
He noted that doctors confirmed to the trial that a child would generally have to be restrained or sedated in order for FGM to be carried out on them. “If this was an act of FGM done on the child, it required her to either be restrained or sedated. Dr Harty was quite clear, there was no evidence to suggest restraint at all,” he said.
In relation to the girl possibly being sedated, he noted that girl was “in hospital for a long time” and “there is no medical evidence to support that the child was sedated or had been sedated”.
Gageby noted that the CCTV footage shown in court yesterday showed the girl to be alert and playing while in the hospital waiting room. “That indicates no restraint and no sedation, there is no evidence to support that at all, in fact the evidence is contrary,” he said.
Gageby noted that his client didn’t see her daughter fall onto the toy that is alleged to have caused her injuries, but believes this is what happened.
If the toy is a complete and utter invention, you’d have to ask why pick this thing which apparently doesn’t have anything sharp on it? You’d have to ask yourself why anyone would do that. It really doesn’t make a lot of sense.
Gageby stated that his client engaged with gardaí and doctors throughout the entire process but “has never agreed that her daughter was subjected to FGM” or that she allowed her to be.
He told the jury there is no evidence that his client permitted anyone to carry out FGM on her daughter or that anyone visited the family home on the date on question. He said the prosecution can’t say if someone else carried out FGM on the girl or who that person may be, describing this as “a riddle”.
“Is it safe to convict her? If you’re heading that way, you do have to consider how incompatible that is with what she has said,” he stated. Gageby stressed that his client had herself undergone FGM, as she told gardaí, and would never allow the same thing to be done to her daughter.
‘Not possible’
Yesterday the court heard that the girl’s injuries are consistent with FGM and could not have been caused by falling on a toy as has been claimed.
Dr Deborah Hodes, a consultant paediatrician and FGM expert based in the UK, told the court she believed that FGM had been carried out on the girl as part of her clitoris was missing. Hodes viewed DVD footage of three examinations carried out on the girl at OLCHC in September and December 2016.
Hodes told the court yesterday: “There was a raw bleeding area where I would have expected to see the clitoris.” She noted that the view was “obscured somewhat by blood” but that she “couldn’t see the clitoral head”.
Last week Paran and Harty told the court that they also believe FGM was carried out.
Hodes said the explanation that the girl sustained her injuries after falling backwards onto a toy while not wearing a nappy “does not fit with the clinical findings of the injury”.
“It’s not possible that falling back onto this type would cause this degree of damage,” she said, adding: “It’s my opinion that there’s nothing sharp there.”
The girl’s father gave evidence at the trial yesterday. Speaking via an interpreter, he told the court that he respected the opinion of Hodes and the other doctors who believe FGM was carried out on his daughter, but said he disagreed with them.
The man said he respected their “medical expertise” but added: “What happened was an accident, I can say what I saw because I was present.”
‘Based on evidence alone’
Judge Sheahan this afternoon told the jury they must not engage in speculation and base their decision “on evidence alone”. She called on the jury members to “decide solely on the evidence which you have before you” and “act dispassionately, leaving aside all feelings and emotions”.
“The weight or the importance to be attached to any of that evidence is for you alone to decide,” the judge said.
She told the jury that the accused have denied the charges against them and are presumed to be innocent. She said the jury can only convict the accused if they believe they are guilty “beyond reasonable doubt”.
Judge Sheahan said if the jury believe the prosecution failed to prove their case beyond reasonable doubt, they must give the accused the “benefit of the doubt” and acquit them.
The judge said the fact the female accused chose not to testify in court, instead giving her version of events via what she said in previous interviews with gardaí, should not be held against her, noting it is a right afforded to all those accused of an offence.
She said that while the jury must consider the evidence given by witnesses, including the medical experts, “the facts of a criminal trial are for a jury to determine”. She said the outcome of the trial will be decided by the jury, not her, counsel, or any of the witnesses.
“That is purely your domain and we cannot trespass on your role or function,” the judge stated.
Explaining the charges, the judge told the jury that count one refers to carrying out FGM, contrary to section two the FGM Act 2012. This legislation defines female genital mutilation as “any act the purpose of which, or the effect of which, is the excision, infibulation or other mutilation of the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of a girl or woman”.
The offence of FGM, on conviction, carries a sentence of up to 14 years. Nobody has been convicted of the offence in Ireland to date.
The State is not arguing that the couple carried out FGM on their daughter, rather that they are secondary participants and “intended to aid, abet, counsel or procure” the procedure. Judge Sheahan told the jury that section seven of Criminal Law Act states that “any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender”.
Count two refers to a charge of child cruelty contrary to section 246 sub-section 142 of the Children Act 2001. This judge noted that this legislation states: “It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child’s health or seriously to affect his or her wellbeing.”
In her closing remarks, Judge Sheahan told the members of the jury they have to decide the facts of the case but “do not have to be concerned with the consequences” of their verdict.
The jury will begin their deliberations tomorrow morning.
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