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District Court 15 November 2021

R v Russell

[2021] NSWDC 782

Assault & violenceHomicide
JUDGE ALONE TRIAL MANSLAUGHTER GROSS CRIMINAL NEGLIGENCE STANDARD OF CARE FOR NON MEDIAL PRACTITIONER DUTY OF CARE.

Citation: R v Russell [2021] NSWDC 782
Court: District Court of New South Wales
Date: 15 November 2021
Judge: Syme DCJ

Background

The accused was a self-described extreme body modification artist who performed procedures on clients for payment. The charges arose from three separate procedures carried out over approximately two years between January 2015 and April 2017, involving three different victims.

The first charge concerned a procedure performed on a woman in Newcastle in January 2015, in which part of her labia minora was excised. The second charge related to a procedure performed on another woman in Erina in November 2016, which was alleged to have caused grievous bodily harm with intent. The third charge was manslaughter by gross criminal negligence, arising from procedures performed on a third woman in early 2017 that involved inserting implants under the skin of her hand and later her thumb. That victim developed a serious infection that progressed to septicaemia and ultimately caused her death in April 2017.

The accused elected to be tried by judge alone. The trial proceeded during a New South Wales-wide COVID-19 lockdown, with all participants, including counsel, the accused, and witnesses, appearing remotely via audio-visual link.

  • Whether the excision of part of the labia minora of an adult woman constituted an offence under s 45(1)(a) of the Crimes Act 1900, including whether adult consent is a defence to female genital mutilation charges
  • Whether the accused caused grievous bodily harm to the second victim with the requisite intent under s 33(1)(b) of the Crimes Act 1900
  • Whether the accused's conduct in performing and following up the implant procedures on the third victim constituted manslaughter by gross criminal negligence under s 18(1)(b) of the Crimes Act 1900
  • What standard of care applies to a non-medical practitioner performing invasive procedures, and whether a duty of care existed
  • Whether the accused's acts and omissions were a substantial and significant cause of the third victim's death
  • Whether adult consent is capable of operating as a defence to the infliction of grievous bodily harm in the context of body modification

Decision

Count 1: Female Genital Mutilation
The District Court found the accused guilty on the first count. The court examined whether an adult woman's apparent consent to the excision procedure could provide a defence. Drawing on the legislative framework and relevant case law, the court concluded that consent does not operate as a defence to female genital mutilation under s 45 of the Crimes Act 1900. The court also considered whether the removal of any scar tissue was relevant to assessing the nature of the injury, ultimately concluding it did not alter the analysis.

Count 2: Causing Grievous Bodily Harm with Intent
The court found the accused guilty on the second count. The court was satisfied beyond reasonable doubt that the procedure caused grievous bodily harm to the second victim and that the accused acted with the requisite intent. The question of whether adult consent could reduce or eliminate criminal liability for the infliction of grievous bodily harm in a body modification context was closely examined, with the court concluding that consent does not provide a defence to this charge in these circumstances.

Count 3: Manslaughter by Gross Criminal Negligence
The court returned a verdict of guilty on the third count. The court found that the accused owed a duty of care to the third victim as a person who had undertaken to perform invasive procedures on her. The applicable standard was not that of a medical practitioner, but the court found the accused's conduct fell so far short of even a basic standard of reasonable care as to constitute gross criminal negligence warranting criminal sanction. The accused inserted implants under the victim's skin without adequate antiseptic precautions, failed to refer her for medical attention when signs of infection became apparent, actively reassured her the hand was not infected, manipulated the implant in a manner likely to spread the infection further, inserted additional implants into the thumb despite an existing infection, and repeatedly discouraged urgent medical attention in the days before her death. The court found these acts and omissions operated singularly and collectively as a substantial and significant cause of the victim's death by septicaemia, with no intervening act breaking the chain of causation.

Trial Process
The court also addressed the practical difficulties arising from the remote conduct of a lengthy criminal trial during lockdown. Syme DCJ adopted a workable approach to evidentiary objections in the judge-alone context, noting objections and, where necessary, admitting evidence provisionally with rulings deferred. The court confirmed that none of these procedural difficulties affected the standard of proof required or the burden placed on the Crown.

Orders Made

• Finding of guilty on count 3 (causing the death of the deceased)

Key Takeaways

  • Under s 45 of the Crimes Act 1900, consent by an adult victim does not provide a defence to a charge of female genital mutilation, as the District Court confirmed in applying the provision to a non-medical context.
  • A conviction for manslaughter by gross criminal negligence requires proof that the accused owed a duty of care, breached that duty at a level so serious as to warrant criminal sanction, and that the breach was a substantial and significant cause of death; the court found all elements satisfied here.
  • The standard of care for a non-medical practitioner performing invasive body procedures is not measured against medical professional standards, but conduct that falls grossly short of any reasonable standard of care may still satisfy the threshold for criminal negligence.
  • Both acts and omissions can form part of the causative conduct for manslaughter purposes: the court treated the accused's active procedures, his false reassurances, and his repeated failures to refer the victim for urgent medical attention as collectively causative of her death.
  • In a judge-alone trial conducted entirely by audio-visual link, the court may manage evidentiary objections pragmatically, including by provisionally admitting contested evidence and ruling at a later stage, provided the criminal standard of proof is maintained throughout.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 33(1)(b), 45(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW), s 132
- Private Health Facilities Act 2007 (NSW)
- Public Health Act 2010 (NSW)

Cases
- Andrews v DPP (1937) AC 576
- Burns v The Queen [2012] HCA 35
- Davis v Chief of Army [2011] ADFDAT 1
- Fleming v The Queen [1998] HCA 68
- JW v SMB [1992] HCA 15
- McCarthy v R [2019] EWCA 2202
- R v A2 and Ors [2019] HCA 35
- R v Andrew [2000] NSWCCA 310
- R v Brown [1994] 1 AC 212
- R v MB [2018] EWCA 260
- R v McIntosh [1999] VSC 358
- R v Stein [2007] VSCA 300
- R v Toma [1999] NSWCCA 350
- R v Wick [2017] NSWCCA 244
- Re Robert Burton (a pseudonym) [2021] NSWCCA 87
- Reeves v R [2013] HCA 57
- Rogers v Whitaker [1992] HCA 58
- Royall v The Queen (1991) 172 CLR
- Swan v R [2016] NSWCCA 79
- Swan v The Queen [2020] HCA 11