R v Davis

[2025] NSWDC 393

District Court

New South Wales

Medium Neutral Citation:

R v Davis [2025] NSWDC 393

Hearing dates:

1 September 2025 & 4 September 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Ground 1: appeal granted, Sequence 21 conviction quashed.

Ground 2: appeal dismissed.

Ground 3: appeal dismissed.

Catchwords:

CRIME – Appeals – Conviction Appeal from Local Court – whether Magistrate erred in finding that consent is not an available defence to assault occasioning actual bodily harm – whether Magistrate erred in admitting tendency evidence – whether tendency notified was too general to have significant probative value – whether Magistrate was entitled to rely on parts of central witness’ evidence despite rejecting other parts of the central witness’ evidence on the basis of credit.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Attorney-General’s Reference(No 6 of 1980) [1981] QB 715

Department of Health and Community Services v JWB and SMD (1992) 175 CLR 218

Haoui v R [2008] NSWCA 209

M(B) [2018] EWCA 260

Pallante v Stadiums Proprietary Limited (No 1) [1976] VR 331

R v Brown [1993] 2 WLR 556

R v Coney (1882) 8 QBD 534

R v Donovan [1934] 2 KB 498 at 507

R v Emmett [1999] EWCA Crim 1710

R v McIntosh [1999] VSC 358

R v Stein [2007] VSCA 300

R v Wilson [1997] QB 47 9

Russell v R [2023] NSWCCA 272

Category:

Principal judgment

Parties:

Rex (Crown)
Ridley Legal (on behalf of Appellant)

Representation:

Counsel:
Mr J. Lang (on behalf of Appellant)

Solicitors:
Ms. I. Viney (ODPP)
Ms G. Ridley (Ridley Legal)

File Number(s):

2021/00069733

Publication restriction:

Non-Publication Order regarding identity of the complainants.

JUDGMENT

1. The Appellant appeals in relation to each of the charges in the below table for which he was convicted after a trial before her Honour Magistrate Farnan on 24 September 2024.

2. In the Local Court, Sequence 68 was referred to as Sequence 69 and Sequence 70 was referred to as Sequence 71. I have put “(68)” and “(70)” after references to Sequence 69 and 71 respectively. Those numbers within parentheses are the correct sequence numbers.

Offence	Section	Victim	Summary of offending
Sequence 13 Common Assault	Section 61 Crimes Act 1900 (NSW)	ZL	Three months into the Appellant’s relationship with ZL, he was walking with her along Coogee Bay Road, and they were arguing. He turned around and punched ZL in the face, once. ZL fell to the ground. The Appellant said to her, “If I can do this in public where people can see, imagine what can I do at home? Get the fuck up and walk”. This occurred in the presence of members of the public.
Sequence 21 Assault Occasioning ABH	Section 59(1) Crimes Act 1900 (NSW)	ZL	The Appellant hit ZL with a cane 29 times across her buttocks and upper thighs. The caning left welts. ZL consented to the caning, believing she had no choice but to consent if she wanted the relationship to continue.
Sequence 69 (68) Common Assault	Section 61 Crimes Act 1900 (NSW)	ZL	ZL was sitting on the couch in the Maroubra unit. The Appellant grabbed a cane and whipped downwards. ZL flung herself backwards, attempting to dodge the cane. She hit her head on the floor or on a stool. She could not move. When she came to, she was crying and was sick down the front of her shirt.
Sequence 23 Assault Occasioning ABH	Section 59(1) Crimes Act 1900 (NSW)	ZL	The Appellant slapped ZL across the face. Her ear and face went red. There was blood in her ear. She went to the doctor who confirmed that her left ear drum was burst.
Sequence 24 Common Assault	Section 61 Crimes Act 1900 (NSW)	ZL	ZL was in the walk-in-wardrobe in the Maroubra unit. The Appellant punched her in the face. ZL fell into the cupboard and played dead. The Appellant said something to her, which ZL could not recall, and then spat on her.
Sequence 71 (70) Common Assault	Section 61 Crimes Act 1900 (NSW)	ZL	While driving from Queensland to Coffs Harbour, ZL and the Appellant drove past an abandoned building. They exited the car. They had an argument. The Appellant held up a fence so that ZL could climb under. The Appellant then grabbed ZL by the hair and dragged her underneath the fence and along the gravel. ZL squealed and said, “Please, please stop”. The Appellant said, “What the fuck’s the point of this if you just don’t fucking listen, give me your rings”. This occurred in the presence of a member of the public. ZL was later picked up by her father. She did not tell him what happened.
Sequence 28 Common Assault	Section 61 Crimes Act 1900 (NSW)	C2	At a “Velvet Rope” party, the Appellant saw C2 exiting a room with her then boyfriend. They exchanged hellos. The Appellant then grabbed C2 by the hair and wrenched down. She begged him to stop. He did not release his grip. He said to C2’s boyfriend, “This is how a real man takes control”. He let go of C2’s hair and laughed. This occurred in the presence of a member of the public.

3. The names of all the complainants and witnesses have been anonymised by use of letters and numbers.

4. This appeal is brought pursuant to the provisions of ss 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW). I have reviewed the evidence with particular focus on those parts of the evidence to which the parties directed. The appeal bundle comprised approximately 2,000 pages plus written submissions of approximately 150 pages. I have formed my own judgments as to whether the Appellant is guilty beyond reasonable doubt, on the basis of the whole of the evidence, in relation to the Sequences being appealed, including the Sequence 21 conviction, which I ultimately determined on a question of law.

5. I have read the careful reasons of her Honour, Magistrate Farnan, and taken into account her advantage in the assessment of questions of credit of witnesses, she having observed the witnesses give their evidence. The parties properly approached the appeal acknowledging that the Appellant, to succeed, needed to demonstrate a factual, legal or discretionary error by her Honour, though that fact does not reverse the onus of proof. The Crown bears the onus of establishing guilt beyond reasonable doubt: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298.

6. The Appellant advances the following grounds of appeal:

1. Ground 1 - that the learned Magistrate erred in finding as a matter of law that, either generally or in the specific circumstances of the case, the Appellant was criminally responsible for a consensual assault involving actual bodily harm (if upheld, acquittal to Sequence 21).

2. Ground 2 - that the tendency evidence was wrongly admitted (if upheld, acquittals to Sequences 13, 23, 24, 69 (68) and 71 (70)).

3. Ground 3 - the evidence of ZL was such that there is a reasonable doubt as to the Appellant's guilt of those sequences in which ZL was a complainant (if upheld, acquittals to Sequences 13, 23, 24, 69 (68) and 71 (70)).

7. All events, the subjects of the charges, occurred between participants in the context of Bondage, Discipline, Dominance, Submission, Sadism and Masochism activity (“BDSM”).

SEQUENCE 21

8. This event involved complainant ZL only.

9. The following facts are not contested in this appeal:

1. the parties were in a long-term domestic and intimate relationship substantially structured on mutually agreed BDSM master-slave practices;

2. the Appellant caned ZL 29 times across her buttocks and upper thighs (the event which is the subject of the charge);

3. the caning left welts;

4. the caning caused ZL actual bodily harm; and

5. ZL consented to the caning.

10. What is contested in relation to Sequence 21 is only whether ZL’s consent is, at law, a defence to the charge of Assault Occasioning Actual Bodily Harm in the circumstances of the event. The learned Magistrate held that consent was not a defence for the Appellant for the purposes of Sequence 21.

11. ZL agreed in evidence that she understood that people participating in BDSM scenes could withdraw their consent with respect to things that they had previously agreed to. She said it was commonplace to do so. Even in circumstances where the submissive was experiencing pain, a “safe word” or “traffic light” system could be employed to communicate a lack or withdrawal of consent.

12. ZL confirmed that she observed the Appellant undertake a rigorous process of determining the limits of the scene. Further, she confirmed that during "impact play", which involved force to a submissive’s body, including striking or flogging, the submissive’s limits may be pushed in a consensual manner by using increasing impact. ZL’s evidence in this regard included:

“A scene is quite a staged set of actions I guess, so, where play I see as quite fluid. So, you know, someone might ask to be flogged, they’re tied up and then, you know, you see how far they can take it and how far they go.” (T 82.33-34, 11/09/2023)

13. ZL described as commonplace in BDSM that submissives shared information of their injuries sustained, including online. ZL’s evidence was that she herself had shown photographs of her own BDSM injuries to others "to show off what I'd put up, like what I'd been able to sustain." Her evidence at one point was:

“Q. And so when you’re sharing images of those injuries, is it fair to say that you’re displaying those injuries with a degree of pride?

A. Yes.” (T 67.20-21, 07/09/2023)

14. W4 described ZL referring to bruising to her face and marks resulting from her sadomasochistic engagement with the Appellant in a bragging fashion and wearing them as a "badge of pride." (T 36.37, 05/08/2024)

15. ZL referred to the Appellant as “master”, and the Appellant referred to ZL as “slave”. ZL’s realisation of risk of harm in the personal and private relationship context they shared was encapsulated in her following evidence:

"Q. You consider master/slave relationships, as you've described the dynamic, to be dangerous?

A. Can be, yes…

Q. And you’ve come to that view after the end of your relationship with the Accused?

A. No.

Q. You came to that view during the relationship?

A. Yes.” (T 84.35-44, 07/09/2023)

16. ZL considered the master-slave protocols of her relationship with the Appellant to be promoting accountability in herself to achieve her wanted objectives in life. She told the Court that:

"And at that point in time I was struggling with aspects of my life and there was someone there that was prepared to help me and guide me, and everything that he did, it seemed and, you know, that they were very positive things for me. He promoted me to live my life. He promoted me and pushed me to be the best person that I could be in different aspects of my life.” (T 86.38-43, 07/09/2023)

17. ZL agreed that the master-slave dynamic was a substantial element of their domestic relationship. Her evidence was:

“Q. Well, I mean, that's no different from any domestic relationship. That has no bearing on the master/slave dynamic, does it?

A. No. And that, I think that's the point that needs to be made is that that's what inevitably that master/slave relationship was. It's that, that connection, that husband and wife, that togetherness, that, you know, whatever is deemed necessary for our relationship to work is what you do.” (T 638.22-28, 07/09/2023)

18. With specific reference to the Sequence 21 event, ZL confirmed the Appellant was at the time “everything to me. I love[d] him with all my heart.” (T 71.45, 05/09/2023)

19. When describing the Sequence 21 event of the caning on her buttocks and thighs, ZL said that she was hit with a cane 29 times across her buttocks and the upper part of the thighs, causing "quite significant marks down my butt and thighs, to the point that they were welting and they were weeping with blood.” (T 70.38-39, 05/09/2023) During evidence-in-chief, when asked whether being caned 29 times was something to which she had agreed, ZL answered, “yes, I took my punishment.” (T 71.12, 05/09/2023)

20. The reference to punishment was in the context of ZL and the Appellant’s master-slave relationship, and ZL’s expanded evidence was:

“Q. But what about the extent of the punishment, 29 times being caned?

A. No, I-I would have taken any, any other punishment on top. I would have taken anything else instead of that. But all I can recall and all I know is that at that point in my life, I was so dedicated to being a slave and being better and making him proud that I endeavoured to take as many strikes from the cane as he deemed necessary for the-- (answer interrupted)” (T 71.15-20, 05/09/2023)

21. ZL agreed in cross-examination that before each strike of the cane, she asked the Appellant to strike her again. The context of that answer appears in the following evidence:

"Q. In the context of you pushing your limits, I am suggesting to you there were things you were required to say to the accused before he would strike you with the cane; do you agree with that or not?

A. I believe so.

Q. You were required to say the number of times you'd been struck?

A. Yes

Q. Before the accused would strike you again, you would have to be asked to be struck again; do you agree with that?

A. Yes. Yes, I did.

Q. The purpose of you asking was to demonstrate that you are consenting to being struck again?

A. No.

Q. You didn't use a safe word at any time throughout this act of BDSM play?

A. It wasn't play. That's because it was punishment.

Q. You never used a safe word while you were being caned?

A. No, I did not

Q. I am suggesting to you you could have, at any time, used the safe word and you would stop being caned?

A. Incorrect.” (T 66.14-30, 08/09/2023)

22. Exhibit 26 is 2 photographs of the marks left on ZL’s buttocks and thighs from the Sequence 21 caning. There is insufficient evidence from which to determine precisely when the photographs were taken but, on balance, they were taken within a couple of days or so of the event.

23. There was a disparity between the evidence of ZL (T 67.10, 08/09/2023) and the evidence of the Appellant as to whether the Exhibit 26 images had been edited to enhance the marks. ZL agreed that she posted photographs of the marks to her FETLIFE profile but disagreed that she had done so as a trophy recording her pushing of her limits (T 67.1-10, 08/09/2023).

24. In relation to consent as a submissive, ZL explained in cross-examination:

"Q. Now, when someone is, in your experience of the BDSM scene, when someone is pushing limits, that's something that's happening consensually?

A. Yes.

Q. And by that, I mean that the person who is role-playing the submissive is actively consenting to pushing their limits?

A. Yes.

Q. And that means that they are seeking to engage in an increasingly impactful form of BDSM?

A. Yes, correct.

Q. And you agree that the question of consent at that point is live when that's happening?

A. Yes, I do. How, it's, when we are pushing with their, that level, it's not that the dominant is, the dominant would, is not going to, if your red zone is the cane, for example, ‘cause we’re just using that, it's not as if they would then pick up their cane and trial that.

Q. Oh, I see.

A. The, it would be that, you know, there is a limit with the amount of pain that you can take from that, and so the pushing of limits would be pushing that little bit further in yourself to know how much pain you can take. Pushing of limits wouldn’t be about going for the red zone itself.

Q. I understand. I understand. Thank you. So when you say pushing, finding out how much pain you can accept yourself, that comment is made from the perspective of the submissive in role-playing?

A. Yes. Yes.

Q. And is is that something that you've experienced personally yourself in BDSM?

A. Yes. Yes.

Q. In those circumstances, you're applying the traffic light system. That's generally what would be considered amber in your experience?

A. Yes. Yes.

Q. Now, when you personally engage in pushing your limits as part of the BDSM community—

A. Mm-hmm

Q. –I understand that was something that you wanted to do.

A. Yes.

Q. And in your experience of people participating in BDSM, that’s something that is generally gratifying for the person playing the role of the submissive?

A. Yes, I believe it is…

Q. Now, pushing your limits is a concept, in your experience, that’s connected to trophies. Do you understand what I mean when I use that phrase?

A. No, I don’t, sorry.

Q. Are you aware of a practice of people who roll-play as submissives in BDSM sharing photographs—

A. Yes.

Q. –Or other records of injuries that they suffered through BDSM?

A. Yes.

Q. You had an account on the website FETLIFE?

A. Yes.

Q. It was commonplace in your experience, wasn’t it, for people to share images of injuries that they had sustained in the course of BDSM play through FETLIFE?

A. Yes.

Q. And that’s something you’ve done yourself?

A. Yes.

Q. In your experience, when you're sharing images of injuries that have been sustained in the course of BDSM play on FETLIFE, would that garner a positive or negative response from people?

A. It depends.

Q. Yes, okay. When you shared pictures of injuries via FETLIFE, what was your purpose in doing that?

A. To show off what I put up, like what I’d been able to sustain.

Q. And you gave evidence before that it was gratifying for you to test your limits in that way?

A. Yes. In some instances, yeah.

Q. And so when you’re sharing images of those injuries, is it fair to say that you’re displaying those injuries with a degree of pride?

A. Yes.” (T 65.30-67.21, 07/09/2023)

25. Exhibit 29 was a “Play Table” in which ZL wrote “yes” beside impact play and beside use of a cane, as well as “g”, meaning consensual go-ahead “green” in the BDSM “traffic light system”, beside “bottom” and “back of legs.” The document shows that ZL wrote “YES YES YES” to the activities being conducted while she was “nude.”

26. The above evidence shows how ZL understood the role of consent in activities she shared with the Appellant at the time of the caning. I note, however, that no part of this decision should be understood as describing or defining, in a general sense, rules of BDSM engagements more broadly.

DISCUSSION – CONSENT CAN BE A DEFENCE TO ASSAULT OCCASSIONING ACTUAL BODILY HARM

27. The Appellant advances that the "learned magistrate erred in finding as a matter of law that, either generally or in the specific circumstances of the case, the Appellant was criminally responsible for a consensual assault occasioning actual bodily harm.”

28. The Appellant's knowledge of ZL’s consent or lack of consent appears to have not been in contest before the learned Magistrate. For the purposes of this appeal, I will assume in relation to Sequence 21 and consideration of Ground 1 that the Appellant actually believed ZL consented.

29. It is to be borne in mind that the Sequence 21 event provided the opportunity for ZL to give express consent before each strike of the cane, which she did in fact do. It is also to be borne in mind that the strikes occurred in private in the home of ZL and the Appellant and in a relationship context which ZL saw as akin to marriage.

30. While ZL gave evidence that the Appellant would not have stopped had she spoken a safe word, such as “red”, there is no evidence of the Appellant’s state of mind on which the Court could be satisfied beyond reasonable doubt that he would not have stopped. Therefore, it is, in my opinion, appropriate to proceed on the basis that any withdrawal of consent by ZL would have been effective.

31. The learned Magistrate, in rejecting the contention of the Appellant that ZL’s consent provided a defence against the Sequence 21 event, stated:

"… I consider that whether [ZL’s] consent should make the accused's conduct lawful is a matter for the legislature. Actual bodily harm was inflicted, the common law is that that is unlawful.” (Judgment T 44.7-9, 24/09/2024)

32. In my respectful opinion, the learned Magistrate erred in holding that the way the caselaw has developed meant that consent is never a defence to actual bodily harm.

32. An appropriate starting point in addressing this issue is to refer to the different categories of injury contemplated by the law, being "grievous bodily harm", “actual bodily harm" and “harm” as an element of the offence of common assault. In Russell v R [2023] NSWCCA 272 (“Russell”), the Court (Bell CJ, Stern JA and N Adams J) said at [54] that:

"… At the outset, we make it plain that our consideration is confined to the question of whether consent lies as a defence to a count of infliction of grievous bodily harm. The question of whether a person may consent to the infliction of actual bodily harm does not arise for determination."

34. In that statement, the Court of Criminal Appeal observed that the question of whether consent is a defence to an assault may differ across the range of seriousness of resulting or foreseeable bodily injury. The Court reviewed historical caselaw which discussed consent as a defence in the context of actual bodily harm and harm as an element of common assault. The Court observed, at [93], that its conclusion in relation to offences involving grievous bodily harm:

“… is consistent with the approach taken by the Victorian Court of Appeal in Stein, albeit in a different factual context. There being one common law of Australia [authorities referred to], this Court should not take a different approach to a question considered by an intermediate court of another state but at a similar level in the judicial hierarchy unless convinced that that earlier approach is plainly wrong [authorities referred to].” (the reference to Stein is to R v Stein [2007] VSCA 300 (“Stein”))

35. At [84], the Court quoted from [20] in Stein:

"The majority opinion in R v Brown established the principle that consent is irrelevant to a charge of assault occasioning actual bodily harm in circumstances where the bodily harm is caused in the course of sado-masochistic sexual activity." (the reference to R v Brown is to R v Brown [1993] 2 WLR 556 (“Brown”))

36. The Court also observed at [53] that:

“The question whether consent is available as a defence to a charge of infliction of actual and even grievous bodily harm has yielded much academic, philosophical and jurisprudential discussion…"

37. The Court of Criminal Appeal’s review of the historical caselaw in Russell is authoritative and provides guidance not to be strayed from by this Court when considering the identified indicia of when and whether consent is an available defence to crimes of assault occasioning the three categories of harm, being grievous bodily harm, actual bodily harm and harm incurred in common assault.

38. Grievous bodily harm includes any permanent or serious disfiguring of the person: s 4 of the Crimes Act 1900 (NSW). For the injury to amount to grievous bodily harm it must be really serious, though there is no requirement of permanent impairment or that the consequences of the injury are long-lasting or life-threatening: Haoui v R [2008] NSWCA 209.

39. As an element of the offence occasioning actual bodily harm in contravention of s 59 of the Crimes Act 1900 (NSW), actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim. While such hurt or injury need not be permanent, it must be more than merely transient and trifling: Brown.

40. Harm is an element of the offence of common assault against s 61 Crimes Act 1900 (NSW) where physical force is actually applied, including striking, touching and generally any form of physical molestation, though which does not incur actual injury.

41. The Court in Russell commenced its review of caselaw with reference to the English decision R v Coney (1882) 8 QBD 534 (“Coney”) and referred, at [55], to the holding of Cave J, at p.539, that assault occasioning intended corporal hurt, being a breach of the peace, and unlawful, requires consent of the victim struck to be ignored. The Court quoted:

"If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way…."

42. The Court also quoted, at [55]-[56], Matthew J in Coney who, at p.546-7, held that "no consent can render that innocent which is in fact dangerous.” At [57], the Court quoted the "arguably more nuanced" reasoning of Stephen J in Coney at p.549 and observed that his Honour thought the question before the Court required "an assessment of whether particular conduct was injurious to the public, an enquiry which involved questions of degree.” The passage quoted by the Court in Russell from Coney included Stephen J’s determination in Coney that consent of the victim is no defence:

“… if the injury is of such a nature, or is inflicted under such circumstances, that it’s infliction is injurious to the public as well as the person injured.”

43. The Court in Russell, at [59], also extracted the following passage from the judgment of Swift J in R v Donovan [1934] 2 KB 498 at 507 (“Donovan”), which focused on the severity of the harm inflicted:

“No person can licence another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected… As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.” (underlining added for emphasis)

44. At [60], the Court in Russell referred to and extracted from Pallante v Stadiums Proprietary Limited (No 1) [1976] VR 331 (“Pallante”), a civil case brought by a boxer against the organiser of the fight, the matchmaker and the referee seeking civil damages for negligence resulting in injuries affecting his eyesight. McInerney J refused the defendant’s application to have the plaintiff’s action dismissed as an abuse of process at p.340 of that case. When considering consent of the person injured in the scenario of “a blow struck in anger or a blow which is likely to do or is intended to do bodily harm”, McInerney J held that consent of the victim was immaterial because (with reference to the judgment of Cave J in Coney):

“… the infliction of the blow is regarded as injurious to the public as well as the person injured… or because it is not in the power of any man to give an effective consent to that which amounts to, or has a direct tendency to create, a breach of the peace…”

45. McInerney J also referred to the judgment of Hawkins J in Coney, observing that persons grievously injured are likely to become a charge of the state, but considered again at p.340 that:

“The primary reason, I would think, is that, as a general proposition, it injures society if a person is allowed to consent to the infliction on himself of such a degree of serious physical injury.” (underlining added for emphasis)

46. At [61], the Court in Russell turned to the judgment of Lord Lane CJ in Attorney-General’s Reference(NO 6 of 1980) [1981] QB 715; [1981] 2 ALL ER 1057 (“Attorney-General’s Reference (No 6)”). The facts in that case involved two boys aged 18 and 17 years in an agreed-to fight which resulted in actual bodily harm. For this appeal, it is, in my view, worth including the whole of the quotation from pages 1058 to 1059, which was extracted in Russell:

" We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty.

But the cases show that the courts will make an exception to this principle where the public interest requires …

Bearing in mind the various cases and the views of the textbook writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise? …

The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.

Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest…” (italics added by the Court in Russell)

47. At [66] of Russell, the difference between the High Court Decision in Department of Health and Community Services v JWB and SMD (1992) 175 CLR 218 (“Marion’s Case”) and Attorney-General’s Reference (No 6) was observed:

“Marion’s Case, decided in 1992, concerned whether the parents of a 14-year-old girl who lived with various intellectual and physical disabilities could legally authorise a sterilisation procedure in respect of their child. This involved a question of interpretation of s 63(1) of the Family Law Act 1975 (Cth). The majority judgment of the High Court referred to Attorney-General’s Reference (No 6) in the following passage (at 233):

Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralizing effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability… Attorney-General’s Reference [No 6 of 1980] held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm. The rationale for this exception appears to rest in the idea that some harms involve public, not just personal interests. (Footnotes omitted.)”

48. The Court also observed at [67] that, in Marion’s Case, Brennan J, citing Pallante, expressly stated at p.267 that:

“The law accepts that a person who is sui juris can consent to what would otherwise amount to an assault or trespass without impairment of dignity, although the interest of society in the physical integrity of its members precludes the law from giving effect to a consent to the doing of grievous harm.”

49. At [68], the Court went to the judgment of McHugh J, who wrote separately but agreed with the majority in Marion’s Case, and also cited Attorney-General’s Reference (No 6) in support of the proposition he made at p.309 that:

“It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a good reason. But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies.” (underlining added for emphasis)

50. The Court in Russell referred to Brown at [69], which it described as the “seminal decision” concerning the infliction of injury during “extreme sadomasochistic sex involving acts of violence and willing and enthusiastic passive participants.”

51. In Brown, the House of Lords, in 1993, considered the consensual infliction of actual bodily harm which occurred during extreme sadomasochistic sex within rooms often equipped as torture chambers, in private, and with safeguards, including sterilised instruments and the use of codewords or safe words to signal the withdrawal of consent. At [70], the Court in Russell observed it to be a significant aspect of the decision in Brown, and a point of departure from the earlier English authorities, that there was a:

“… particular moral setting or context. Unlike earlier cases, the facts of Brown did not involve any potential breaches of the peace to which consensual fighting might be thought to have given rise. Rather, the broad distinction between the majority and minority positions in Brown was, at the very least, influenced by moral judgments and differing attitudes towards the proper role for the Courts in the making of such moral assessments.”

52. The Court also observed at [71] that the majority of the House of Lords in Brown held that:

“… although the absence of consent is a requisite element of a charge for mere assault, it was not in the public interest for a person to wound or cause actual bodily harm to another for no good reason such that, in the absence of such a reason, a victim’s consent will provide no defence to a charge of actual bodily harm. It was further held that the satisfaction of sadomasochistic desires was not a sufficiently good reason.” (italics added by the Court in Russell for emphasis)

53. In response to a submission that the majority position in Brown no longer fitted social values and was paternalistic, the Court in Russell observed, at [72], quoting from the Judgment of Lord Templeman, who formed part of the majority in Brown, that:

“There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating.” (underlining added for emphasis)

54. Lord Templeman referred to the lawful activities of surgery, ritual circumcision, tattooing, ear piercing and violent sports including boxing as lawful activities, in regard to which, according to public policy, consent is a defence, notwithstanding that they involve actual bodily harm or may cause serious bodily harm.

55. Lord Jaunce, also in the majority in Brown, was noted by the Court in Russell to have held that he would dispose of the appeals in Brown on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.

56. Lord Lowry, the third member of the majority, was observed by the Court in Russell to view the issue squarely as one of morality, describing the motivation of the consensual activity of the appellant to be a wish to “satisfy perverted and depraved sexual desire”, concluding that “sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.”

57. In the present case, the Crown and the Appellant acknowledge in their written submissions that, since the time of the decision in Brown, values in our society towards homosexual activity have changed.

58. Significantly, the Court in Russell observed, at [78], that the apparent doctrinal coherence which the majority in Brown might have been thought to have secured on the question of consent as a defence was “dashed” by the Court of Appeal of England and Wales’ decision in R v Wilson [1997] QB 47 9 (”Wilson”).

59. In Wilson, a husband had been asked by his wife to brand his initials on her buttocks with a hot knife. He was then charged with and convicted of assault occasioning actual bodily harm. In upholding the appeal and quashing the conviction, the Court of Appeal of England and Wales reasoned that the purported victim not only consented but also instigated the charged activity. There was no aggression or want within the appellant in that case to cause injury his wife. Rather, his desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment. The Court of Appeal of England and Wales said at p.50, which was quoted by the Court in Russell at [78], that:

“In our judgment, [Brown] is not authority for the proposition that consent is no defence to a charge under [the same statutory offence provision in Brown] in all circumstances where actual bodily harm is deliberately inflicted.”

60. The Court in Wilson held that the question certified for their Lordships in Brown related only to a “sadomasochistic encounter and… recognised in the course of their speeches that it is necessary that there must be exceptions to what is no more than a general position.” The Court could not detect a logical difference between what the appellant in that case did and what might have been done by way of lawful tattooing, which required no state authorisation.

61. In my view, the following passage from the judgment of the Court of Appeal of England and Wales in Wilson, quoted by the Court in Russell at [78], is of importance to the present appeal:

“Does public policy or the public interest demand that the appellant’s activity should be visited by sanctions of the criminal law? The majority in [Brown] clearly took the view that such considerations were relevant. If that is so, then we are firmly of the opinion that it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.”

62. For completeness, and because the Crown refers to it in this appeal, I note that, at paragraphs [87]-[89], the Court in Russell considered the Court of Appeal of England and Wales’ decision in M(B) [2018] EWCA 260 (“M(B)”) and followed that decision in the Court’s determination that consent is not a defence to an offence causing grievous bodily harm. In my view, M(B) is of not much assistance in determining the present issue because:

1. the facts in M(B) involved serious bodily harm in the form of life changing harm including the removal of an ear, the removal of a nipple and the splitting of the tongue of the victim; and

2. like the facts in Russell, and unlike the facts in this appeal, it considered the scenario of consent to an activity causing grievous bodily harm akin to a surgical procedure, and one so serious that it ought to be, but was not, carried out by a registered medical practitioner with all the protections promised by professional medical management.

63. That said, the passage at [40] in M(B), quoted by the Court in Russell at [88] and part of the decision complemented in Russell as "… underwritten by robust common sense”, provides helpful guidance, in my opinion. The Court of Appeal of England and Wales there in M(B) said:

“Whilst the exceptions are incapable of being accommodated within any universally stated test, there are two features which may be thought to underlie almost all of them. First, they may produce discernible social benefit. That is true of the sporting exceptions and may even be true of boxing or "dangerous exhibitions" as entertainment. It is possible that those with a religious hue might also be considered as conferring a social benefit, at least at the time they were recognised. But the second is that it would simply be regarded as unreasonable for the common law to criminalise the activity if engaged in with consent by (or on behalf of) the injured party. That would apply to tattooing and piercing and again, perhaps to those with a religious hue, including ritual male circumcision."

64. Like Stein and Brown, the facts in this appeal involve consensual sadomasochistic sexual activity. In Stein, Kellam JA (with whom Vincent and Neave JJA agreed) considered substantially the same caselaw considered by the Court of Criminal Appeal in Russell, particularly Brown. The facts in Stein involved sadomasochistic sexual activity where the victim had consented to the sexual activity while restrained at his ankles and wrists, but in circumstances where there was no evidence, implied or otherwise, that the victim had consented to a gag being tied around his mouth. On the facts, the victim could not communicate consent or his wish that the gag be removed when he was suffering distress. The gag ultimately contributed to his death. It was determined that, in those circumstances, any consent by the victim to the application of the gag could not be regarded as consent to the risk of the infliction upon him of actual bodily harm by reason of the application of the gag. The victim's consent to the bondage activity, irrespective of whether he specifically consented to the application of the gag to his mouth, was not consent that he be exposed to the foreseeable risk of serious physical injury.

65. To put the facts in Stein in perspective, there was no suggestion that the use of the gag had even been discussed with the deceased victim. Furthermore, there was no evidence that the victim consented to the gag not being removed when he began to visibly display panic. The Court observed at [17] in Stein that the victim could not have conveyed a withdrawal of consent. His hands and ankles were tied, and once the gag had been placed around his mouth, he lost his ability to communicate a withdrawal of consent (should he have even given it). Kellam JA held in Stein at [27] that it was open to the jury to conclude that the application of the gag was a substantial cause of the death of the victim. He also said at [28]:

"… clearly the application of a gag by the applicant to the deceased involved exposure of the deceased to the risk of a serious physical injury. It was that dangerous and negligent act which obstructed the airway of the deceased and caused his death.”

66. At [20] in Stein, Kellam JA gave the following account of R v Emmett [1999] EWCA Crim 1710 (“Emmett”), a decision subsequent to Brown in which a relationship between foreseeable serious harm and consent was observed:

"One of the counts of assault occasioning actual bodily harm in the case of Emmett involved the applicant covering the complainant's head with a plastic bag and tying it at the neck with a ligature. Subsequently the applicant became aware that the complainant was in distress, unable to speak or to make intelligible noises. He removed the bag from her head rapidly. During the following day the complainant attended her doctor because of increasingly blood-shot eyes which had been caused by the restriction of oxygen to her brain. The doctor observed some petechial bruising around her neck which was caused by the restriction of blood flow to her neck. As the court observed, it was plain that had those restrictions been permitted to continue, brain damage and ultimately death might have been the result. The court held that in such circumstances consent was no defence.” (underlining added for emphasis)

67. Kellem JA observed in Stein at [21] that "his understanding of the law as it was at that time", stated by Vincent J in R v McIntosh [1999] VSC 358 (“McIntosh”), was “an accurate statement of the current law as it applies in Australia, the United Kingdom and Canada.”

68. In McIntosh, Vincent J was sentencing the offender who had pleaded guilty to manslaughter. The offender had deliberately pulled on a rope which, with the consent of the victim, had been placed around the victim’s neck to invoke near asphyxia with the intention of heightening sexual pleasure. The victim died in consequence of the offender pulling on the rope. The passages of the judgment of Vincent J at [11]-[14], selected by Kellem JA in Emmett as accurate statements of the law, were:

“First, it is not, of itself, and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism.”

Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk of even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful.

Third, apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself.

In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized.” (underlining added for emphasis)

69. I observe that, in the post-Brown cases referred to in Russell and Stein, the rejection of the defence of consent to an assault inflicting grievous and/or actual bodily harm seems to occur on the basis that the assault, when inflicted, carried a real risk of serious injury. This is observed in respect of the facts in Emmett, where the injury that occurred was only bruising around the victim’s neck but the act of covering the victim's head with a plastic bag and tying it at the neck with a ligature risked brain damage or even death if it had been permitted to continue. The defence of consent was not recognised even when, on the facts, the offender had, when observing the victim's distress, removed the bag and ligature, thereby avoiding the actual incurring of serious injury.

70. As already observed, the Court of Criminal Appeal said in Russell at [78] that the apparent doctrinal coherence of the majority judgments in Brown had been “dashed” by Wilson. In Wilson, Russell LJ, delivering the judgment of the Court, referred to preceding caselaw, including Brown, and specifically Lord Templeman’s reference in Brown at p.236D to “obvious dangers of serious personal injury and blood infection” from the extreme sadomasochism. Russell LJ said in Wilson at p.127F-128E:

“In our judgment, [Brown] is not authority for the proposition that consent is no defence to a charge… in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in [Brown] related only to a “sado-masochistic encounter.” However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general position.

…

We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter.

Does public policy or the public interest demand that the appellant’s activity should be visited by the sanctions of the criminal law? The majority in [Brown] clearly took the view that such considerations were relevant. If that is so, then we are firmly of the opinion that it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal activity. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution. Accordingly, we take the view that the judge failed to have full regard to the facts of this case and misdirected himself in saying that [Donovan] and [Brown] constrained him to rule that consent was no defence.

In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times in which we live, exceptions may arise from time to time not expressly covered by authority.” (underlining added for emphasis)

71. In accordance with these consistent statements of the relevance of the foreseeability of serious injury at risk of being incurred by the impugned activity, Kellam JA in Stein reasoned at [22]:

"Applying those principles to the present case, it cannot be said that the general activity in which the applicant and the deceased were engaged was unlawful for the purposes of the application of the unlawful and dangerous act formulation of the crime of manslaughter. Nevertheless, even though it might be accepted that the deceased had consented to bondage activity, the application of the gag to his mouth, whether or not he had consented, involved exposure to the risk of serious physical injury to him just as did the placing of a plastic bag over the head of the complainant in the case of Emmett. There was a foreseeable risk of serious injury. Furthermore, the circumstances in which that foreseeable risk of serious injury arose included circumstances whereby the deceased was restrained and gagged. There was no possibility of his articulating his lack of consent, or indeed for that matter articulating his distress. Once the gag had been placed on him, he was totally in the hands of the applicant. Once that had occurred in circumstances where a risk of serious injury arose, the issue of consent became irrelevant.” (underlining added for emphasis)

72. In my opinion, the caselaw and, particularly, Brown, to which the learned Magistrate principally referred, did not constrain her to rule that consent was not in any circumstances an available defence to a charge of assault occasioning actual bodily harm against s 59(1) of the Crimes Act 1900 (NSW).

73. BDSM is not unlawful. In my opinion it is, on the present state of the common law, to be regarded as unreasonable to criminalise the activity of caning at the request of the victim in the privacy of a home, the individuals being in an intimate domestic relationship that is, in the mind of the individuals, equal in commitment to the relationship of marriage. There is an absence of evidence of foreseeable risk of serious injury or harm to the victim, and an absence of evidence that the activity would not have ceased had consent been withdrawn.

74. I note that I have not considered the applicability of any coercive control provisions that came into effect on 1 July 2024 as a result of the Crimes Legislation Amendment (Coercive Control) Act 2022. This is because the events which are the subject of the Sequences predate the commencement of those provisions.

CONCLUSIONS

GROUND 1

75. Determination of Ground 1 does not turn on evaluation of the social utility of a type of BDSM. It does not turn on the impact of sadomasochistic practices engaged in by consenting adults within the privacy of their domestic relationships, or generally. The availability of the defence of consent is to be determined on the specific circumstances of this case. The circumstances are:

1. That impact activity, including the caning, was a component of the consensual master-slave sadomasochistic engagement at the core of the domestic relationship shared by the victim and the Appellant;

2. the victim and the Appellant were in a long-term intimate and domestic relationship, equated by them with a relationship of husband and wife, in which the caning was part of their sadomasochistic interpersonal relationship dynamic;

3. the event occurred in the privacy of their domestic bedroom;

4. the victim not only consented to but instigated each strike of the cane by asking for it;

5. throughout the caning, the victim had freedom of expression of consent and freedom of choice to withdraw consent;

6. had the victim withdrawn her consent, the caning would have ceased;

7. the harm caused was of a type that the victim bore, and indeed took pride in bearing, because it displayed the pain which she had put up with in the context of her and the Appellant’s master-slave sadomasochistic relationship dynamic; and

8. there was no evidence supporting a foreseeable risk of serious injury.

76. The common law is not that consent can never be a defence to assault occasioning actual bodily harm in all circumstances and regardless of a foreseeable risk of serious injury.

77. In the present case, the victim's consent was a defence.

78. The conviction for the Sequence 21 assault is, for these reasons, quashed.

GROUND 2

79. The thrust of the Appellant’s argument for Ground 2 was that her Honour erred by admitting the evidence when the notified tendency was too general to have, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, significant probative value: s 97(1)(b) Evidence Act 1995. I acknowledge that the syntactic construction of the notified tendency left room for different interpretations, but I reject the assertion of the Appellant that the tendency applied by her Honour was too general. Her Honour did not apply the tendency in the way the Appellant submits she did. Indeed, she directed herself:

“Leaving to one side for the moment the asserted weaknesses of the evidence, the alleged tendency is one of violence towards females, either with whom the defendant is in a relationship, or who are members of the BDSM community. The violence is alleged to be outside the bounds of what has been consented to within that dynamic. The violence is said to include physical assaults to the head area, or forcibly moving the victim through acts of grabbing or pulling.” (Judgment T 32.10-15, 24/09/2024)

80. In that passage, her Honour was correct in her construction of the tendency notice and was concise in her determination of the admissibility of evidence to prove the Appellant had a tendency to act in a particular way or to have a particular state of mind.

81. Her honour recognised the probative value of the notified tendency to act in relation to the following offences the subject of appeal:

• Sequence 13 - a punch to the head of ZL following an argument in a street in Coogee, and then the Appellant saying to ZL, "if I can do this here in public with people watching, imagine what I could do at home”.

• Sequence 69 (68) - a downward strike of the cane near ZL’s head, in their home, after which the Appellant called her “pathetic”.

• Sequence 23 – a slap across ZL’s head in their home.

• Sequence 24 – a punch to ZL’s head in the walk-in-wardrobe.

• Sequence 71 (70) – dragging ZL along the ground in a public area.

82. In my view, her Honour correctly rejected the Appellant's submission in the Court below, repeated in this appeal, that the tendency upon which the Crown relied was not more than a generalised tendency of violence towards women. I agree with her Honour’s observation that it is to be hoped that a tendency of violence against women is not considered a behaviour so common as to lack probative value.

83. Nevertheless, all the allegations that made up the notified tendency, as shown above, involved infliction of violence to the head of a woman known to the Appellant through the BDSM community, and a woman who identified as a submissive, or slave, at the time. I agree with her Honour that the context was unusual and of significant probative value.

84. In this way, the evidence of the Appellant’s conduct adduced to prove his tendency to act in that particular way bore similarity to the conduct in issue in regard to each of those offences. Logic and human experience suggest that proof that the Accused was a person who, in the context of his BDSM relationship with the complainant females, had a tendency to act on his interest to be violent toward them by striking about the head, is influential to the determination of whether there is a reasonable possibility that the complainant had misconstrued innocent conduct or fabricated her account. The tendency was important to the rational assessment of whether the Crown had discharged its onus of proof: Hughes v Queen [2017] HCA 20 at [39]-[40]. My own view of the evidence is in agreement with her Honour’s judgment.

85. Her Honour, in my opinion, correctly observed at Judgment T.33.6-16;

“In addition, in relation to two of the offences, the accused is alleged to have said words that show a desire or intention to demonstrate control of the woman in a public space. This is also distinguishable from a generalised tendency of violence towards women.

I do find that the evidence of [ZL] and C2 of the conduct in respect of the counts where they are alleged to be the victims, has sufficient probative value to be admissible as the tendency evidence in respect of each other count identified. It is relevant to whether each individual, otherwise apparently isolated, incident is likely to have happened as alleged.”

86. In my opinion, the probative value of the evidence outweighed the danger of unfair prejudice to the Appellant: s 101 Evidence Act 1995 (NSW). The state of mind and the particular way of acting were immediately pertinent to the charges. I am not convinced by the Appellant’s proposition that the tendency notified amounted to a mere general violence against or towards women.

87. For these reasons, I reject Ground 2.

GROUND 3

88. The verdicts in regard to Sequences 13, 23, 24, 69 (68) and 71 (70), to which Ground 3 is directed, were determined following her Honour’s thorough credit-based assessment of the evidence of ZL and the application of cogent reasoning.

89. Her Honour was entitled to reject part of ZL’s evidence and to accept other parts. Her Honour did determine to reject some parts of ZL’s evidence on the basis of credit. Nonetheless, it was open to her to accept other parts of ZL’s evidence amongst the matrix of the whole of the evidence, including corroborating evidence, even should she have chosen to reject other parts. In my opinion, her Honour was correct in her determination to accept the parts of ZL’s evidence that she did. She expressed good reasons for doing so.

90. Following my review of the evidence, I would not, respectfully, come to a different assessment of the evidence, including its weaknesses, as did her Honour. Her Honour soundly considered and then rejected the Appellant’s evidence.

91. There is no submission that her Honour failed to properly direct herself. She applied the Liberato and Markuleski directions and the Central Witness direction.

92. I also note that her Honour had the advantage of observing the witnesses, particularly ZL, as they gave evidence.

93. For these reasons, I reject Ground 3.

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Decision last updated: 07 October 2025