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
Cases Cited: Burns v The Queen [2012] HCA 35
Davis v Chief of Army [2011] ADFDAT 1
Fleming v The Queen [1998] HCA 68
McCarthy v R [2019] EWCA 2202
RvBrown [1994] 1 AC 212
R v MB [2018] EWCA 260
R vMcIntosh [1999] VSC 358
Re Robert Burton (a pseudonym) [2021] NSWCCA 87
RogersvWhitaker [1992] HCA 58
Category: Principal judgment Parties: Regina (Crown)
Brendan Leigh Russell (Accused)Representation: Crown: Mr C. Taylor
Mr M. Mantaj for the accused
Instructing: Mr W. Martyer/ Mr C. Mayer
Instructing: Ms E. Sutton
File Number(s): 2018/00136609
2018/00248702Publication restriction: Non-publication order regarding names of complainants.
Judgment
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On 11 May 2021 the accused was arraigned on an amended indictment charging three counts.
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
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,
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.
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He pleaded that he was not guilty.
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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.
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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
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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