An Aboriginal teenage girl has lost an appeal after she requested her criminal trial be heard by a female magistrate for cultural reasons, saying she wouldn't defend the charges if footage of her being strip-searched had to be seen by men.
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But the NSW Court of Appeal said the Children's Court could order a case like hers to be heard by a woman in the future.
The girl, then 15, was strip searched at Wagga Wagga Police Station in March 2019 after she was arrested on suspicion of stealing a car.
Police say she kicked the female officers searching her and smashed some of their body cameras. She was charged with assaulting police officers executing their duty and destroying property.
The girl's defence team wants to argue that the strip search was illegal.
Footage of the search showed her fully exposed backside and chest.
A month before her trial was due to start in the Wagga Wagga Children's Court, the girl asked the court to order that her case be heard by a female magistrate.
She wanted the court to order that no men be present in court when the footage was played, and that the footage not be showed to any men.
A field officer with the Aboriginal Legal Service gave evidence that in Aboriginal cultures showing a woman's sensitive parts was women's business.
If men observed women's business, it would cause extremely distressing, long-lasting cultural shame, the officer said.
The division between men's and women's business had been practiced for thousands of years.
The girl told the field officer that if her case was heard by a male magistrate then she would not defend the charges.
The girl's mother also told the court the girl had been "really upset" about being strip-searched, particularly as a male was present. The mother said the girl had experienced "issues with sexual assault" which she'd tried to report to police, but they told her to go home. It meant she did not trust police.
The Children's Court magistrate rejected her application.
He said five male officers would need to view the footage in court to comment on it, though the NSW Court of Appeal later said this was wrong
If male officers had to see the video, there would be no point in ordering that a female magistrate hear the case, the magistrate said. He also thought he didn't have the power to do so.
But the NSW Court of Appeal ruled last month that the Children's Court could actually order a case like the girl's to be heard by a woman.
Ordering a case to be heard by a woman is not the same as ordering a case to be heard by a specific judge, the court said. Some 47 per cent of magistrates in NSW are women.
The court rejected the girl's appeal because the legal error hadn't affected the magistrate's decision.
Justice Lucy McCallum said if the girl wouldn't otherwise defend the charges, the matter should be heard by a female magistrate to give her the fullest opportunity to participate in the proceedings.
Two of the appeal judges suggested in this case the parties could land on a compromise, such as not showing the parts of the footage where the girl's bottom is visible, or pixelating the footage.
The girl was initially refused bail and held in jail for more than six months after the strip search. She has since been granted bail.
Australian Associated Press
