A new precedent has been set in New South Wales which will allow women in court to have sensitive evidence accessed and heard only by those of the same gender.

The judgement, made by the NSW Court of Appeal in Lacey v Attorney General for New South Wales [2021] NSWCA 27, ruled that courts within NSW can order a hearing before a female magistrate and can only present certain evidence to women for cultural or gender reasons.

The Aboriginal Legal Service NSW/ACT welcomes the decision, noting the cultural change it will create in NSW courts.

“This has effectively changed the law about gender and cultural evidence in NSW Courts, making the legal system that little bit safer for women at a time when women’s access to justice is rightly under the microscope,” said ALS NSW/ACT CEO Karly Warner.

ALS NSW/ACT, Sydney barristers Chris Ronalds SC and Talia Epstein, and Legal Aid NSW Solicitor Rose Khalilizadeh brought the matter on behalf of ‘Lacey’ (not her real name).

At 15-years-old Lacey was arrested. It was claimed she was unlawfully strip-searched by police in the presence of a male police officer at Wagga Wagga police station in March 2019.

The prosecution’s case against Lacey included video evidence of said strip-search that has footage of the chest and buttocks.

Since January, Lacey has been fighting to uphold the cultural protocols of women’s business in the Supreme Court.

This was in response to the Children’s Court magistrate refusing her bid to exclude male police officers from watching the video and the refusal of having her case heard before a female magistrate.

“Our client was horrified that video showing sensitive areas of her body would be shown to a courtroom full of men — the magistrate, police, witnesses and lawyers,” said Warner.

“Two of our great Aboriginal Legal Service women gave evidence about the impact of Aboriginal culture on gender considerations, arguing that showing a woman’s sensitive parts is women’s business.

“Opening this up to men will likely result in cultural shame and lasting distress for the woman in question.”

According to the Aboriginal Legal Service, this is the first argument about a gendered bench in the nation and potentially in the common law world.

Whilst Lacey lost her appeal, the decision of the Court of Appeal opens the opportunity for the re-argument of cases to be heard by female magistrates in the original court.

“We are excited to see the applications of this judgement in the future, not just for Aboriginal women but all women,” said Warner.

“Many cases involving sensitive evidence move through NSW courts, and it’s imperative this evidence is heard in a way that avoids re-traumatising women whose bodies have been exposed or violated.

“Our thanks go out to the great pro-bono team of female barristers who joined us on this case: Chris Ronalds SC, Rose Khalilizadeh and Talia Epstein. And most of all, to ‘Lacey’, the strong and tireless young woman who has now made her mark on the law.”

By Rachael Knowles