Update - Thursday 8 April 2021:
The Children’s Court matter of “Lacey” is listed for mention to fix a hearing date next week at Wagga Wagga Children’s Court. The ALS expects to list the matter for a full hearing of the issues in dispute. We understand the Court is listing hearings late in 2021.
Lacey still seeks a female-only courtroom. We expect any required argument to be heard between the mention and a hearing date later in the year.
We have argued on Lacey’s behalf that the footage needs to be seen in full by the Magistrate to understand the facts completely. We have argued before that the legality of the search was to be challenged. We expect those arguments to be renewed.
Friday 19 March 2021
The Aboriginal Legal Service welcomes a recent judgement in the NSW Court of Appeal which may allow women to have sensitive evidence heard by people of the same gender.
The judgement in Lacey (a pseudonym) v Attorney General for New South Wales  NSWCA 27 found that in NSW, a court may order a hearing before a female magistrate and limit access to evidence to females for cultural or gender reasons.
“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 Karly Warner, CEO of the Aboriginal Legal Service NSW/ACT.
The appeal was brought by the Aboriginal Legal Service NSW/ACT, Chris Ronalds SC, Rose Khalilizadeh and Talia Epstein on behalf of ‘Lacey’, a young Aboriginal woman who was 15 at the time she was arrested and strip-searched by police. The prosecution’s case against Lacey included video footage of the strip-search, including images of her chest and buttocks.
“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,” Ms Warner said.
“Two of our great ALS 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.”
This appears to be the first argument about a gendered bench in Australia and possibly in the common law world.
‘Lacey’ lost the appeal for technical reasons – but the decision of the Court of Appeal leaves open the possibility of re-arguing the case for a female magistrate 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. 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,” Ms Warner said.
“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.”
The case decision can be accessed here: https://www.caselaw.nsw.gov.au/decision/177ffe1c8d94b685102eece6
Media contact: Alyssa Robinson – [email protected] / 0427 346 017