A 16-year-old Aboriginal girl who was strip searched by New South Wales Police has lost an appeal to have her trial heard by a female magistrate, despite setting a precedent on the matter in the NSW Court of Appeal earlier last month.

The girl was arrested in 2019 and taken to Wagga Wagga Police Station after she allegedly stole a car. The girl, who was 15 at the time, was then strip searched. It’s alleged that the girl kicked the female police officers who were conducting the search and smashed body cameras.

She was then charged with assaulting a police officer executing their duty and destruction of property, and later served six months.

Lawyers representing ‘Lacey’ (not her real name) are alleging that the strip search was illegal, and the argument requires footage of the strip search to be shown to the court.

However, showing the footage in court would violate Women’s Business protocols due to men watching. The footage shows Lacey’s naked chest and backside.

In January, an Aboriginal Legal Service field officer told Wagga Wagga Children’s Court that showing the footage would be distressing and bring cultural shame to the girl.

“Showing of a woman’s sensitive body parts is considered Women’s Business,” they said.

“Cultural shame would ­result where Women’s Business is conducted in front of men, a shame that would stay with the particular woman for a long time.”

The court pushed on claiming that five male police officers had to view the footage and that they did not see the need for a female magistrate to be assigned. It’s alleged the magistrate said they didn’t have the power to assign a female judge for cultural reasons.

However, a judgement made by the NSW Court of Appeal in Lacey v Attorney General for New South Wales [2021] NSWCA 27 has allowed courts within the State to order a hearing before a female magistrate and allows evidence to be presented to a gender-specific audience for cultural or gender reasons.

Despite this, the court rejected Lacey’s appeal, noting the magistrate’s legal error in asserting magistrates did not have the power to assign female judges for cultural reasons did not change the decision.

Standing strong against the decision, Lacey said she would not defend her case in front of a male magistrate.

Two appeal judges have suggested both the court and the victim compromise on the footage being pixelated when viewing and not showing footage of the victim’s genitals.

By Rachael Knowles