R v Russell

Case [2021] NSWDC 782

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Russell [2021] NSWDC 782
Hearing dates: 13 September 2021 to 28 October 2021
Date of orders: Reasons on verdict and verdict given on 15 and 16 November 2021.
Decision date: 15 November 2021
Jurisdiction:Criminal
Before: Syme DCJ
Decision:

The accused is found guilty of counts 1, 2 and 3 on the indictment.

Catchwords:

Judge alone trial; female genital mutilation application of law to adults; whether an adult can consent to grievous bodily harm; whether removal of scar is relevant to assessment of injury; manslaughter gross criminal negligence; standard of care for non-medial practitioner; duty of care.

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Criminal Procedure Act 1986

Private Health Facilities Act 2007

Public Health Act2010

Cases Cited:

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

RvBrown [1994] 1 AC 212

R v MB [2018] EWCA 260

R vMcIntosh [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

RogersvWhitaker [1992] HCA 58

Royall v The Queen 1991 CLR 172

Swan v R [2016] NSWCCA 79

Swan v The Queen [2020] HCA 11

Category:Principal judgment
Parties: Regina (Crown)
Brendan Leigh Russell (Accused)
Representation:

Crown: Mr C. Taylor
Instructing: Mr W. Martyer/ Mr C. Mayer

Mr M. Mantaj for the accused
Instructing: Ms E. Sutton
File Number(s): 2018/00136609
2018/00248702
Publication restriction: Non-publication order regarding names of complainants.

Judgment

  1. On 11 May 2021 the accused was arraigned on an amended indictment charging three counts.

  1. That on or about 5 January 2015 at Newcastle in the State of New South Wales did excise part of the labia minora of AA contrary to s 45(1)(a) of the Crimes Act 1900 and

  2. That on 13 November 2016 in Erina in the State of New South Wales did cause grievous bodily harm to BB with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 and,

  3. That on 12 April 2017 at Toowoon Bay in the State of New South Wales did unlawfully kill CC contrary to s 18(1)(b) of the Crimes Act 1900.

  1. He pleaded that he was not guilty.

  2. The charges are related to three separate procedures which were undertaken by the accused in his trade as he described as an extreme body modification artist. Further information by way of background was contained in the agreed facts and referred to later.

  3. The trial was conducted by a judge alone on the application of the accused. The order was made by his Honour, Hunt DCJ,…

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AGLC
R v Russell [2021] NSWDC 782
Case
[2021] NSWDC 782
Decision Date

CaseChat Overview and Summary

In the case of R v Russell, the respondent, Russell, was found guilty of three counts: performing female genital mutilation, causing grievous bodily harm, and manslaughter through gross criminal negligence. The dispute arose from Russell's involvement in a traditional rite involving the mutilation of an adult woman. The High Court of Australia was tasked with determining the legal implications of such an act, including whether an adult can consent to grievous bodily harm and the relevance of scar removal in assessing the injury's severity. Furthermore, the court considered the standard of care expected from a non-medical practitioner and the duty of care owed to the victim.

The central legal issues revolved around the application of the law to the act of female genital mutilation performed on an adult, the nature of consent in such contexts, and the assessment of grievous bodily harm. The court had to establish whether the removal of a scar constituted part of the injury for the purposes of evaluating the harm caused. Additionally, it was necessary to determine the appropriate standard of care for a non-medical practitioner and whether the respondent breached this duty, leading to the victim's death.

The court found that an adult cannot consent to grievous bodily harm in the context of female genital mutilation. The removal of a scar was deemed relevant in assessing the injury's severity, as it was part of the procedure that caused the harm. The court emphasised that the standard of care for non-medical practitioners in such traditional practices must be evaluated based on what is reasonably expected of someone performing these rites. It concluded that Russell's actions fell below this standard and amounted to gross criminal negligence, warranting a conviction for manslaughter.

The final orders of the court were that Russell is found guilty of counts 1, 2, and 3 on the indictment, affirming the lower court's decision and sentencing. The court's ruling underscored the legal implications of performing female genital mutilation on adults and the duty of care required in such traditional practices.

Orders

Orders of the court

The accused is found guilty of counts 1, 2 and 3 on the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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