R v Russell - [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

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.

He pleaded that he was not guilty.
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.
The trial was conducted by a judge alone on the application of the accused. The order was made by his Honour, Hunt DCJ, after he was satisfied that legislative requirements had been complied with.

Trial Procedure

The trial proceeded during a New South Wales-wide lockdown due to the COVID-19 pandemic. Initially counsel sought to appear personally and notwithstanding the lockdown requirement. I indicated that I was prepared to consider this request favourably with safeguards in place in an attempt to alleviate difficulties associated with the hearing of a lengthy trial in which many witnesses were expected to appear remotely. However, neither counsel eventually sought the exercise of my discretion in this way. The trial proceeded with both counsel and the accused appearing remotely. All witnesses gave evidence via AVL with counsel able to view them remotely and the witnesses having AVL access to counsel and to the Court.

Evidence Rulings

While the evidence and submissions were adequately presented in this way there were some occasions when the technical connections were less than optimal, resulting in some delays and some repetition of questions and submissions. On occasion media or others listening remotely caused disruption. In addition, when counsel whose connection to the Court was sometimes muted to enable evidence to be better received wished to object to evidence or questions the indication of objection frequently came shortly after the evidence was given. Technical limitations made the disconnection and later reconnection of witnesses problematic.
As it was a judge alone trial I eventually adopted an approach of noting objections and on some occasions admitting evidence provisionally with an indication that a ruling could be made at the conclusion of a witness’s evidence or the trial. This was a practical and fair solution and was accepted by counsel. At the conclusion of the trial many such objections had resolved and the remaining ones are dealt with herein.
If I have not referred to the objected to evidence of the witness in my summary then it has been rejected as not admissible for the reasons contained in the objection table or is otherwise not relevant and has been disregarded. This is also the case where evidence was not the subject of a s 67 notice.
If I have allowed evidence which was objected to and referred to it in the witness summary then I will give brief reasons for allowing the evidence in the course of discussion of that witness’s evidence and provide transparency to the weight accorded to it. Otherwise evidence objected to has not been admitted and/or considered by me as being not relevant.
I have given great consideration to the practical difficulties presented by the trial process. Counsel were afforded as much time as they sought to consider evidence before cross-examination or submissions. An assessment of the evidence is undertaken with all of these difficulties in mind. However, I confirm that the difficulties do not alter the requirement for the Crown to prove its case and each element of the offences charged to the criminal standard.

General Directions at Law

Pursuant to s 132 of the Criminal Procedure Act 1986 a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury to the guilt of the accused and such finding has for all purposes the same effect as a verdict of the jury. The judgment of the Court in such a case must include the principles of law that I, as the judge, apply and the findings of fact on which I rely.
In Fleming v The Queen [1998] HCA 68 the Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the processes and ultimately the verdict it has reached. I am required as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances.
There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law.

Onus and Standard of Proof

Having brought the charges it is the Crown who bears the onus of proving them. The high standard to which such charges must be proved is the standard of beyond reasonable doubt. In order to sustain a conviction for the offences charged the Crown bears the onus of proving beyond reasonable doubt each element of the offence. The elements will be referred to at the commencement of discussion of the evidence for each charge.
In addition to the fundamental principle that the Crown must prove the charges beyond reasonable doubt it is necessary to bear in mind a number of other principles. The accused is presumed by law to be innocent of the charges brought against him unless and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proven beyond reasonable doubt. If the evidence fails to satisfy the Court beyond reasonable doubt of any of the elements of a particular offence then the presumption of innocence continues and a verdict of not guilty on that count must be returned. If there is an explanation consistent with the innocence of the accused of any charge or if the Court is unable in the circumstances to determine whether a particular element has been proved then the accused must be found not guilty accordingly.
The evidence before the Court must be approached with an open and unbiased mind. The Court must proceed logically and rationally without acting capriciously. It is necessary to bring into account in assessing the evidence the common sense of the Court and to deliver any verdict according to the evidence. It is necessary to recall that the accused does not have the burden of producing any evidence. He does not have to disprove the Crown case. It is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be.
The indictment contains three separate charges with allegations spanning approximately two years and three months. While acknowledging that the charges are separate and must be treated separately there are a number of general directions at law which are relevant to all charges. I propose to note those general directions at law where they are relevant to all charges at this stage and to refer to further self-directions as they are relevant to the remaining charges at the commencement of a decision on those charges. I will then discuss the factual issues and the findings relevant to each charge separately.
In presenting its case the Crown relied on a number of pieces of evidence that were only relevant as either tendency or coincidence reasoning, for which appropriate notice had been given. Ultimately, there was not a great deal in dispute about this evidence and the use that it may be put to. A judgment was given separately at the commencement of the trial in relation to those issues.
The weight to be given to that evidence in ultimately drawing inferences will be referred to in a discussion of that evidence.
There are few witnesses who gave evidence during the course of the trial largely relevant to tendency or coincidence only. Most witnesses gave direct evidence to the relevant charge.
The Crown also contend that some of the evidence given with respect to individual charges is cross-admissible in other charges. This largely relates to sequences 2 and 3. However, the Crown also rely on some facts that they seek to prove on count 1 and 2 are relevant to prove count 3 and some facts on count 1 and 3 are relied on to prove count 2.
I will refer specifically to the tendency and coincidence directions that I will give myself at the conclusion of my findings on count 1. Ultimately however neither tendency nor coincidence reasoning was important in the reasoning process for the remaining counts. It was not at all relevant for the count 1 considerations.
Other directions I will give myself specifically in relation to counts 2 and 3 will relate to the drawing of inferences, circumstantial evidence and expert evidence. Expert evidence is relevant to all three counts on the indictment and even though the self-direction will appear at the conclusion of my reasons on Count 1, I have taken it into account for that count as well. The expert evidence in count 1 was not the subject of dispute, and it is only as a matter of convenience it is set out in full at the conclusion of reasons for that count. .
A direction relating to the accused not giving evidence is relevant to all three charges on the indictment and I specifically acknowledge that the accused has no obligation to give or call evidence, and the fact that he did not give evidence personally does not alter the burden of proof. Some evidence was called on his behalf, however I specifically acknowledge that the fact that the accused did not give evidence himself does not alter any obligation that the Crown has to prove its case.
The accused in no way bears any onus of proof in respect of any fact that is in dispute. He is presumed to be innocent until and unless I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and to make the Crown prove he is guilty to the high standard required.
I understand that as a matter of law his decision not to give evidence cannot be used against him in any way. That decision cannot be used as amounting to any admission to any part of the case before me. I draw no inference or conclusion based on the fact that he decided not to give evidence, it cannot be used against him in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I will not speculate about what might have been said in evidence if the accused had chosen to give evidence.

The Nature of the Hearing

An observation I wish to place on the record at this stage is that this case is not a judgment on the complainants or victim the subject of an indictment. It is not a judgment on an individual’s decision to seek the deliberate alteration of a part of the body in the same way that cosmetic procedures are designed to, nor is it investigation, except as referred to in the reasons, why a person might seek such body modification. Body modifications when performed by a properly qualified surgeon in surgical conditions, as I understand from the expert evidence received, is apparently not an uncommon procedure.
The decision in this case is a consideration on whether in the circumstances of this case the procedures which were either admitted or are found to have been undertaken by the accused were undertaken in such a manner and with such consequences as require the intervention of the criminal law, either because they were inherently dangerous and/or undertaken in such a way as to render them unlawful.

Undisputed Facts

At the commencement of the trial, a document was tendered containing agreed facts. Further agreed facts will be relevant to a discussion of each individual charge, however a number of agreed facts are relevant to all charges by way of background. The agreed facts tendered pursuant to s 191 of the Evidence Act required no further evidence for those facts to be proven. Those facts are as follows.

Background of the Accused

The accused was a self-proclaimed extreme body modification artist. The accused went by the nickname of BSLICE and Hemostat. Through advertising and social media the accused offered to perform a wide variety of body modification procedures.
The term “body modification” refers to the deliberate alteration of a part of the body in the same way that cosmetic procedures are designed. Body modification is a broad term and can range from the cutting or removal of body parts to the insertion of implants and scarification.
The term scarification refers to the process by which one’s skin is cut, etched, burned or branded into a design to create an inkless tattoo like scar.
From some time in 2013 until March 2016 the accused worked at “Tribal Urge”, a tattoo studio at 764 Hunter Street, Newcastle. He was employed as a body piercer at Tribal Urge.
In or about June 2016 the accused opened Transition Tattoo and Body Modification at Erina Fair, Erina, referred after in these reasons as Transition.
The accused maintained profiles on social networking sites where he would correspond with clientele and posted photographs and videos of body modification procedures.

His social media profiles were as follows:

Intagram: @BSLICEDOTCOM,

Facebook: BSCICE and Bslice Dot Com;

Fetlife profile name Hemostat.

Fetlife is an adult social networking website that serves people interested in BDSM, fetishism and kink. The accused’s Fetlife profile page was visible only to registered members of the Fetlife website.
The About Me section of the accused’s Fetlife profile states:

“I am a body modifier/piercer. I offer a wide range of my works, from piercing, tongue splitting, genital splitting and implants, scarification, branding, suspension needle play, blood play and much more and heavier, with full extensive surgical background of training. I travel worldwide offering my works. PLEASE DO NOT WASTE MY TIME. And I have much more extensive pics and vids of my things I offer. I ALSO OFFER MY WORKS TO PARTIES AND ALSO OFFER WORKSHOPS. COME BE PART OF MY MAGIC, TAKE THIS EXISTENCE WITH ME”.

At times the accused was assisted in managing his Facebook and Instagram social media profiles by Alexandra Malloy. Russell’s email address was [email protected].
At times the accused performed penetrating body modification procedures on others using surgical and other implements and injectable local anaesthetics resulting in incisions. The procedures included eyeball tattooing, nipple removal and reshaping, insertion of subdermal implants, caesarean scar reduction, scarification, body piercing. The accused conducted those procedures described above at venues such as tattoo parlours, storefront locations and public expos. Many of those procedures involved the accused using injectable local anaesthetic.
The Australian Health Practitioners Regulation Agency, APRA, maintains a public register of all registered health practitioners in Australia. In order to practise as medical practitioner in Australia, you must hold a current registration with APRA. If a person’s name does not appear on the National Register of Practitioners as currently registered, they are not entitled to practise as a medical or health practitioner in Australia.

The accused is not registered as a health or medical practitioner on the National Register of Health Practitioners maintained by APRA and has not been registered on the register since his establishment of 1 July 2010.
In addition to the above formally agreed facts, some other factual matters were not disputed during the course of the trial.

COUNT 1 - Female Genital Mutilation

Again I remind everybody there is a non-publication order for the complainant’s name.
Section 45 of the Crimes Act provides, relevantly:

“Prohibition of female genital mutilation:
(1): A person who:
(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person; or
(b) aids, abets (et cetera) a person in doing so commits an offence.

(2) N/R.
(3) It is not an offence against this section to perform a surgical operation if that operation:
(a) is necessary for the health of the person on whom it is performed and it is performed by a medical practitioner, or
(b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth by a medical practitioner or authorised professional, or
(c) is a sexual reassignment procedure and is performed by a medical practitioner.

(4) In determining whether an operation is necessary for the health of a person, only matters relevant to the medical welfare of the person are to be taken not account.
(5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.
(6) N/R.

Definitions follow in s 45. To refer only to those relevant it is noted.

It is not suggested that the subject of these proceedings was in labour or had just given birth, or that the procedure was a sexual reassignment procedure.
“authorised professional” means, to summarise, a registered midwife or a midwifery student qualitied in Australia or in a recognised jurisdiction or a medical student.
It is an agreed fact, agreed fact 24, that Brendan Russell was not at any time a medical practitioner, authorised professional, medical student or midwifery student as those terms are defined in s 45 of the Crimes Act.

Evidence

The elements of s 45(1) that the Crown must prove to the required standard are:

that the accused on 5 January 2015

excised

part of the labia minora

of the person AA.

In relation to count 1 further agreed facts before the Court were:

Agreed fact 19. The complainant in this matter is AA. The complainant’s legal name is [redacted]. She was 29 years old at the relevant time.

Agreed fact 20. On 5 January 2015 AA attended Tribal Urge where the accused, Brendan Russell, undertook a procedure whereby he partially excised her labia minora. The right labium minora was completely excised, the anterior half of the left labium minora was excised. A sketch annexed to the agreed facts, and will be annexed to my decision, indicates the areas excised.

Agreed fact 21. The procedure was with AA’s consent.

Agreed fact 22. The procedure was for a non-medical cosmetic/body modification purpose.

Agreed fact 23. As a result of the procedure AA experienced pain for approximately 12 months following the procedure, is unable to use tampons due to pain and experiences discomfort when wearing underwear due to sensitivity at the site of the excision.

The Crown case was that the procedure carried out by the accused is one defined as female genital mutilation under the Act. The procedure and the result was adequately and uncontroversially described by Dr Bezic and summarised further in these reasons.
The Crown contends that s 45(5) renders this consent irrelevant to the offence. There is no dispute that the elements to be proven, as noted above, are the elements that must be proven by the Crown to the required standard.
The Crown’s position is that each of the proof elements is satisfied in effect by the agreed facts.
Defence advocate in his submissions, para 18, conceded that if s 45(1) is to be read literally, the Crown case “undoubtedly discloses an offence contrary to this provision”. However, he submits that the section should not be read literally and ought to be construed in accordance with its purpose and the mischief Parliament intended to address by its introduction. He further submits that the section must be interpreted to apply only to children and/or only to apply to traditional or ritualistic procedures. The defence argue that the procedure was a purely cosmetic procedure undertaken on an adult with consent, therefore it is not caught by s 45(1).
Both the Crown and the defence have relied significantly on the case of R v A2 and Ors [2019] HCA 35 (referred to as A2).
It is the defence position that legislation ought be construed in accordance with the purpose sought to be achieved by the introduction of the legislation.
Defence submit s 33 of the Interpretation Act supports this proposition. Section 33 relevantly provides:

In the interpretation of a provision of an Act or statutory rule et cetera a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or in the case of a statutory rule in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Section 34 relevantly provides:

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—
(a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b)  to determine the meaning of the provision—
(i)  if the provision is ambiguous or obscure, or
(ii)  if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—
(a)  all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,
(b)  any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,
(c)  any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,
(d)  any treaty or other international agreement that is referred to in the Act,
(e)  any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made.

The rest of that particular section is not relevant.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to—
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act …

Defence Position

I refer to the defence position first, not to suggest there is any onus, but merely for convenience.
Defence advocate submits that the approach they urge on this court was most recently confirmed by the High Court in A2 where Kieful CJ and Keane J confirmed as follows, (and I shall summarise) :

“A literal approach to construction which requires the Courts to obey the ordinary meaning or usage of the words … even if the result is improbable … has long been eschewed by this Court. It is now accepted that even words having an apparently clear, ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context of the provision may point to factors that tend against the ordinary usage of the words of that provision and when a literal meaning of the words of the statute does not conform to the evidence, purpose or policy of the particular provision it is entirely appropriate for Courts to depart from the literal meaning”.

Defence advocate suggests that the appropriate interpretation for s 45 would be to read down the general words in the Act and give them a more limited application than their ordinary meaning would suggest. It does not appear to be the defence submission that a literal meaning of the words would make s 45 either manifestly absurd or unreasonable although they suggest perhaps impractical . I will address this issue below.
Defence contend that the context of the provision, by which I take it they mean the circumstances surrounding the passing of the legislation, points to factors that tend against the ordinary usage of the words of that provision. Therefore in the words of the High Court:

“That the meaning ought be interpreted to comply with the evident purpose or policy of the provision”.

Defence further submit that the interpretation that should be applied to s 45, to ensure that its operation is limited in scope to a manner which is consistent with its purpose, would be to interpret the provision to apply only to children and/or to ritualistic practices or procedures.
They submit that the repetition of the words “female children” in the Court’s reasons is a clear indication that the High Court approved of the limitations of the Act to children. Defence point out that the reference to prohibit the practice of female genital mutilation on female children was repeated in paras 53 and 56 s elsewhere of the decision.
The Court observed:

“a construction which gives a broader approach to s 45 is consistent with its wider purpose to prohibit completely female genital mutilation practices injuries to female children. That purpose is consistent with Australia’s obligations under the Convention of the Rights of the Child”.

The defence case is that the above passage makes it plain that the High Court, as they submit, conclusively decided that the purpose of s 45(1) was the protection of female children rather than adult women. I assume they mean the protection of females under the age of eighteen years are the sole target of the Act rather than all females . That is how I understand that submission.
Defence advocate concedes that the High Court in A2 was not dealing directly with the question of whether the scope of s 45(1) was limited to child victims. However they submit that the:

“Repeated use of the phrase female children instead of the much simpler expression such as females cannot be dismissed as unintentional”.

Defence advocate suggests that to do so would be, tantamount to impugning to the High Court an incredible naivety about its role within the curial hierarchy and the effects of its pronouncements.
I would hope to avoid impugning the High Court with any degree of naivety but suggest that they probably expect their pronouncements to be quoted in full context, as I will refer later. .
Defence further submit that Kiefel CJ and Keane J found influential in their reasoning the statement of the Minister who gave the second reading speech in the introduction to the Act in 1994 to the effect that female genital mutilation is a form of child abuse and that the bill was rooted in the protection of children. There is a concession that when the section was revisited in 2014 to increase the maximum penalty the Minister who delivered that speech took the view that s 45 applied not only to children but also to adult women however . submit that a speech some ten years after the bill was proposed does nothing to illuminate its purpose at the time it was enacted.

Crown Position

The Crown position is that the literal and purpose of interpretation of the words in the Act are the only appropriate way of interpreting the words. The Crown submit that if an age limit was intended the insertion of a few simple words would have sufficed. The Crown’s further submissions are discussed below.

Consideration

In considering whether the Act applies only to subjects under the age of 18 years I note that the legislation does not make this distinction in its plain language. The section refers to an act being performed by a person on another person, (the first person being the one who commits the offence). I do not understand that the defence submission suggests that both persons must be children for the section to be relevant.
An understanding of the observations of the High Court in A2 requires a short summary of the background to that decision. The matter under consideration in A2 concerned procedures performed on children. The focus of the Court was the direction given by the trial judge in a jury trial as to the word ’mutilate’ and the meaning of the word ‘clitoris’ in s 45. The High Court considerations in A2 arose following a Criminal Court of Appeal decision in New South Wales. The respondents who are referred to collectively as A2 were charged upon indictment with having mutilated the clitoris of two children. The Crown case was that the respondents who were members of a community group were parties to a joint criminal enterprise to perform a ceremony which involved causing injury to a young girl’s clitoris by cutting or nicking it. The respondents did not dispute that there had been a procedure performed but claimed that it was merely ritualistic and did not involve any nick or cut to the clitoris. Whether it did or not was a factual issue in the trial.
In addition to the factual issue the respondents also argued that if there was a cut or nick it would not amount to mutilation within the meaning of s45(1). The trial judge made a pre-trial ruling concerning the meaning of the words ‘otherwise mutilate’ and subsequently directed the jury in accordance with that ruling.
The respondents were convicted as I understand on the factual issue, apparently finding there was a cut or nick, which may have been minor, performed on the childrens’ clitoral area.
That conviction was appealed to the CCA largely on the issue of the meaning of the words ‘otherwise mutilates’ and ultimately the respondents’ convictions were quashed and verdicts of acquittal on all counts were entered. The CCA concluded that the trial judge had mis-directed the jury as to the meaning of the words ‘otherwise mutilates’. There was another issue in relation to fresh evidence.
Special leave to appeal to the High Court was granted on two grounds. The first, a matter of general importance regarding the operation of s 45 was he question was whether the CCA erred in construing the words ‘otherwise mutilates’ as it did. The second ground of appeal related to the meaning the CCA gave to the term ‘clitoris’. The question of whether the Act applies in a general way or only to children and/or ritual circumstances was not argued either before the CCA or the High Court. In determining the scope of the words ‘otherwise mutilates’ the High Court analysed and considered the purpose of s 45 as it had been expressed in various forms of intrinsic material including the formal statements of the World Health Organisation, the report of the Family Law Council to the Attorney General in relation to the adequacy of Australian laws relating to this issue and the explanatory note and second reading speech with respect to enacting the offence in New South Wales.
Defence submissions refer to a number of places in the A2 decision where the majority of justices referred to the mischief to which s 45 is directed. The discussion in A2 commences at para 38 of that decision where it is noted that the term ‘female genital mutilation’ is noted to be a collective term to refer to ritual practices carried out on female children. That reference in that context was a reference to how the Family Law Council report referred to that particular issue. The High Court observed that the term ‘female genital mutilation’ was adopted in the legislation as it was meant by the Family Law Council. It observed in para 44 of the Court’s decision:

“The mischief to which s 45 is directed is a gap in the law concerning the practice of female genital mutilation in all its forms which are productive of injury. Its immediate purpose is to criminalise the carrying out of the practice on female children. Its wider purpose may be taken to be its cessation.”

However, this passage clearly was in the context of their consideration as to the meaning of the word ‘mutilates’ in the context of female genital mutilation. The High Court did not express a limit to the wider purpose to the cessation of the practice only in children.
The High Court in A2 did not specifically, or even obliquely, consider the question of whether the provision was limited to offences committed against children. Rather the Court focussed on whether particular conduct the subject of the factual scenario before them fell within the intended definition of the words ‘otherwise mutilates’. It is observed that the Court ultimately concluded the infliction of any damage to the genitalia of a female child fell within the scope of the term ‘otherwise mutilates’, thus interpreting that term widely. Apart from obliquely and largely in quoting from relevant reports they did not comment in any way that the section, or the words in it ,should be interpreted to relate only children. That was not the purpose of their consideration.
In considering the legislative purpose of s 45 it is noted that the Family Law Council report not only examined the issue of offences against children but also violence against women. The Council asserted it had obligations under a number of international instruments which are referred to in their report. These include the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination against Women, the Declaration on Violence against Women and the Protocols relating to the status of refugees. It is obvious that these institutions and their bodies relate to all people, not just children.
The final report of the Family Law Council must be seen in that context. In the second reading speech for the legislation enacting s 45 the relevant Minister said:

“The Convention on the Elimination of all forms of Discrimination against Women provides that all appropriate measures be taken to eliminate discrimination in the field of health care. The declaration on violence against women specifically includes female genital mutilation as a part of its definition of ‘violence against women’”.

It is observed that while the Attorney General noted that the procedure is usually performed on girls “on a tender age”, (as was the case in A2) there was no attempt to limit the width of the offence when presented to parliament, to children. The broad ambit of the legislation was confirmed when the Attorney General stated,

“A legislative proposal to make clear that female genital mutilation is a criminal offence is obviously a sensitive matter. There are a number of serious issues to be considered. These range from matters of child protection to issues concerning women’s health and human rights.”

Parliament also considered and legislated in terms of s 45(3) regarding surgical operations performed for health reasons, providing that s 45 should not apply to procedures that were performed as part of the labour or birthing process, or as part of the sexual reassignment procedure. While it might be the case that some such events may apply to children, it is a more usual that those procedures would involve adult females. An interpretation that s 45(1) applies only to children but that the exclusion section (s 45(3)) may apply to both children and adults does not make sense.
In the course of their judgment, the court, Kiefel CJ and Keane J did refer to the history of the legislation and the background in the 1970s and 80s of the practice of what was referred to as ritual female circumcision. Later, they observed that the Family Law Council prepared a report to the then Attorney General on that issue; that is, the issue of ritual female circumcision.
I have been provided with a summary of this document which notes that when the practice was inflicted on children, it amounted to child abuse. It is implicit that consideration was therefore given to legislating in such a way as to prohibit the action where perhaps only children were involved, but ultimately, s 45 was passed, prohibiting genital mutilation on females where no age limit was mandated. I am of the view that the words “any person” in the Act could not be clearer.
In addition, the issue of the consent of the subject was specifically referred to as a matter that could not be raised as a defence. This again presumes that the consent provision applies to a person of an appropriate age to give that consent. Marion’s case, referred to by defence advocate in a different context, suggests that parental consent in these circumstances would not be sufficient.
This observation of the historical background to s 45 makes it abundantly clear that while consideration may have been given to the Act applying only to children, the legislation refers to any person; clearly an indication of the intention of Parliament.
The legislation was actively under review in 2014 as a result of the 2013 Family Law Council report, which is referred to again below. The then Attorney General of New South Wales introduced a Bill to increase to increase the maximum penalty for performing female genital mutilation from seven to 21 years’ imprisonment and to create a new offence of: Remove a person from New South Wales with the intention of having that practice performed.

The Attorney specifically commented that the offence is not restricted to taking a child or arranging for a child to be taken from New South Wales for the purpose of female genital mutilation. He said it was drafted to apply to adults as well. He observed that the existing offence in New South Wales prohibits the female genital mutilation of women, as well as girls. It is obvious then that active consideration was given in 2014 to whether the Act did apply only to children, or should. The law was not changed, and indeed, the Minister confirmed that it applied to adults.
Defence submissions comment that the decision in A2 occurred some five years after this 2014 speech to Parliament and suggests that the High Court specifically and impliedly read down these comments when referring to children in the context of its decision. Taking the decision as a whole, not just using selected parts, I do not agree. Had they intended to limit the meaning of the section to apply only to children and to be read down as such, they would have, at the very least, invited submissions on same, and undoubtedly, said so directly. This particular issue was not an issue upon which leave to appeal was granted.
Defence do not concede that the High Court was referring to the issue only of the understanding of the term “mutilate” in the context of the wider purpose of the appeal and prefer the interpretation of the High Court, who specifically in their judgment ,read down the plain meaning of the words. As I have observed, the High Court did not say this.
Defence further submit that if s 45 is not read down as they suggest, according a literal meaning of the word “excise” would render any labiaplasty performed for purely cosmetic reasons a criminal act because every labiaplasty involves the excision of the part of a women’s labia. This is, in effect, a submission that such a conclusion is impractical and perhaps improbable, apparently due to the fact that such operations are conducted by “cosmetic surgeons”. I do not think that this is a matter that ought concern the court, but as it was raised, I will attempt to address it.
Dr Ron Bezic, past President of the Australian College of Cosmetic Surgery, provided an expert opinion stating that the removal of extra labia minora tissue, known as a labiaplasty, is usually performed in a licenced day surgery under general anaesthetic
The procedure would involve the tissue being excised by a blade or scissors and the bleeding stopped with cauterising, the surgeon mostly using the monopolar diathermy to ligate the arteries. This is a form of electrocautery where there is a pad placed on the patient. Once the surgeon is satisfied that the bleeding is controlled and the correct amount of tissue was removed, then they close the wound with sutures.
Dr John Flynn, a similarly qualified expert called by defence, did not dispute that this was the process involved in labiaplasty. There is no challenge that this does amount to an excision of the labia minora.
In relation to the reasons a medical practitioner might perform a labiaplasty in New South Wales, the report tendered as exhibit K in the defence case is instructive. In it, Dr Bezic opines,

“Labiaplasty can be performed in New South Wales if a patient is concerned about the appearance of the labia minor, or for medical reasons.”

It is noted in this regard that Dr Bezic does not purport to be giving a legal opinion in relation to the performance of labiaplasty in New South Wales.
He said in his report as reviewed on 2 September 2021,

“Medical reasons are the most common reason, and this can also be in conjunction with cosmetic concerns. However, there is a subset of patients that requested this procedure for cosmetic reasons alone. In this case, the surgeon would need to provide proper informed consent and conduct the procedure in a safe and licenced environment.”

He said that the use of the term “cosmetic” as it applied to this paragraph implies that a service is non‑rebatable and does not attract a Medicare benefit.
Such a service would not be listed on the Medicare Benefits Schedule, and therefore would attract GST. Cosmetic medical practitioners were generally classified procedures as either cosmetic or non‑cosmetic using that criteria.
Labiaplasty can be performed and has a Medicare number attached in circumstances where a descriptor for this service as vulvoplasty or labiaplasty. These descriptors relate to procedures for repair of female genital mutilation or an anomaly associated with a major congenital anomaly of the urogynecological tract.
Further, Dr Bezic said that there are other medical procedures that are performed that don’t attract a Medicare benefit. The purpose of these procedures is to improve the medical or psychological well‑being of the patient. He said it is a widely accepted practise for medical practitioners operating in New South Wales to perform this type of procedure exclusively for health reasons. He included the psychological health of a patient as being a subset of general health.
The defence expert, Dr John Flynn, is currently engaged in fulltime cosmetic surgery practise in Queensland has been for about 30 years, and is currently managing editor and publisher of the Journal of Cosmetic Surgery and Medicine. His qualifications and experience were not challenged by the Crown. A small part of his report was tendered as evidence, in which he answered the question: Are labiaplasties which are performed for cosmetic reasons alone non‑therapeutic?” He responded, “

“in a physical or in a functional sense, … would consider that labiaplasty performed for cosmetic reasons alone as being non‑therapeutic. However, there is often also a significant emotional and psychological overlay regarding how patients might assess their anatomy and hence their appearance. These elements are critical to pre‑operation discussion and a doctor would have a duty of care to explore these issues and if necessary refer appropriately…… Nevertheless, he said there will still be a subset of patients, (as Dr Bezic suggests,) who seek labiaplasty for purely cosmetic reasons, and so would be non‑therapeutic and not considered necessary for a patient’s health” .

In commenting on Dr Bezic’s report, Dr Flynn agreed that even if there was a cosmetic reason for such a procedure, then the surgeon would need require proper informed consent and conduct the procedure in a safe and antiseptic environment. He said labiaplasty complications can include infection, for which antibiotics are routinely prescribed by this doctor.
Other risks can include pain, which usually subsides after a few days. He said if pain was experienced for up to 12 months, that pain may result from scarring hematoma or surgical technique. He commented that one should not have pain for that amount of time unless something had gone wrong. Sensitivity at the site of the incision would very likely suggest that something had gone wrong. Such a result, he opined, would be unexpected.
This conclusion is relevant to expand on what the Crown says was the adverse medical outcome of the procedure performed by the accused. It seems that Dr Flynn confirms that it was. This is relevant to cross‑admissibility issues, and the suggested tendency of the accused c to conduct procedures with such an outcome.
Otherwise, the usefulness of the opinions of Dr Bezic and Dr Flynn as to whether labiaplasties which are performed for purely cosmetic reasons is academic. Both referred to wider possibilities of health concerns for such a request if it were ever made.
Both Dr Bezic and Dr Flynn indicated that some patients sought a labiaplasty procedure for cosmetic reasons as distinct from medical or health reasons. In explain this, Dr Bezic drew the distinction that medical procedures were simply a reference to whether the procedure was rebatable under Medicare or not. Both indicated there was a subset of patients who sought labiaplasty for non‑therapeutic reasons, and both Dr Flynn and Dr Bezic indicated that they would explore those reasons to decide whether they fit into the medical or therapeutic category. It is clear that some therapeutic or medical reasons for labiaplasty are covered by Medicare and some are not.
I cannot conclude from their evidence that non‑therapeutic labiaplasties are performed as a matter of course by licensed medical practitioners in New South Wales, as was submitted by the accused’s counsel. In any event, it is an irrelevant consideration. I observe that both Dr Flynn and Dr Bezic, in their evidence, denied that they had ever performed such operations for non‑therapeutic purposes, or that anyone they knew, any surgeons they knew in either New South Wales or Victoria similarly undertook such procedures. This is a different consideration however as to whether if any did occur, they fall within s 45(3) or not.
Further, in relation to this issue of whether such procedures are performed widely, I return again to the 2013 Family Law Council report. It canvassed the option of “reviewing the law to clarify the legal and policy position of female genital cosmetic procedures, with a view to presenting a report to the standing council on law and justice, or other appropriate ministerial council if necessary.” It was recognised in that 2013 report that queries were raised about how existing female genital mutilation laws would apply to female to female genital cosmetic procedures. It was observed in para 1.2 of the report that “such procedures are alleged to be occurring more frequently since the last time model laws were discussed by the jurisdiction.” The report recommended that further work be progressed. This is a reference no doubt to the sorts of procedures that it is alleged by defence that cosmetic surgeons “frequently” undertake in New South Wales and possibly Queensland. However, notwithstanding the observations being raised, the legislation was not changed, notwithstanding there were amendments to the Act in 2014.
A consideration as to whether some other procedures performed by cosmetic surgeons for non‑therapeutic reasons are in breach of s 45 was not before me. Dr Flynn and Dr Bezic denied any knowledge of same. Notwithstanding this, Mr Mantaj submitted that such procedures were undertaken, and that if a decision was made that labiaplasty of the type performed by the accused, as he stated, would be criminalised, it would in effect create a system in which, he said, “cosmetic surgeons must either search for a non‑existent therapeutic reason behind a women’s decision to have cosmetic procedure or to deny her access to same.” Mr Mantaj submitted that either option, and he said: “Denies the women of New South Wales a basic right to the autonomy over their own bodies and further that it was a most dangerous precedent for the Court to consider.”
This argument can be dealt wealth immediately. If defence advocate is suggesting that the procedure performed by his client is in anyway comparable to a procedure performed for therapeutic purposes by a cosmetic surgeon, then this is just factually incorrect. If he is suggesting that there are qualified cosmetic surgeons who are performing procedures which are not permitted by a plain reading of s 45, then that somehow permits his client to do so, is also with respect a nonsense suggestion. Section 45 makes it very clear that there are limited circumstances only in which a procedure as defined by the Act can be performed. This suggestion, even if evidence existed, that because some cosmetic surgeons might be doing it for cosmetic purposes only, then it is not illegal is completely unsustainable as a submission. In the context of this case, as observed above, as conceded by his advocate that if s 45 is to be read in accordance with the direct meaning of the words of the Act, the Crown case undoubtedly discloses an offence contrary to that provision. It is not submitted, even suggested, that the procedure carried out by the accused does not amount to female genital mutilation as discussed in the High Court case of The Queen v A2. The agreed fact of excision and the annexed diagram of the portion of the labia minora excised puts that element beyond reasonable doubt.
There is no evidence nor suggestion that the procedure was carried out for the health of the subject person nor is there any suggestion, in fact, it is admitted that the accused is not a medical practitioner or otherwise professional.
Finally, defence submit or suggest that by disagreeing with their submissions as to the extent of s 45 this Court is somehow criminalising a woman’s access to labiaplasty as a cosmetic procedure. This Court is doing no such thing. It is up to the legislature to decide what is and what is not a crime within this State and it is up to the courts to interpret those laws. Defence further submit:

“If the court was to reach the view that it is not concerned about criminalising a woman’s access to labiaplasty there remains a question that was averted to by the High Court regarding criminalising of genital piercings.”

This is clearly in reference to para 49 of the High Court’s decision in A2 where the Court was referring to the respondent’s submission in relation to the interpretation of the term ‘otherwise mutilates’ within the context of female genital mutilation. The submission has little, if anything, to do with the current case. Section 45 is quite specific in relation to the prohibited procedures. The excision that is referred to in the agreed facts is not a “piercing” . The submission that if interpretation suggested by the Crown of s 45 is accepted then genital piercing would constitute a criminal offence is not a matter for me to consider. Presumably, it would be a factual consideration in a particular case. That is how the High Court dealt with this thought.In addition I note, the agreed facts in this case agreed fact 2 defines body modification in such a way as not to include piercing.
I find that s 45 does not apply only to ritualistic or religious activity . The High Court in para 30 (A2) specifically observed that the minister stressed that in passing the law against female genital mutilation the government was not seeking to attack the values of any particular group within the community. In the context of A2, this was a clear reference to what it was submitted in that case, that is, the procedure under consideration was ritualistic in nature, therefore, submitted in that case, not caught by s 45. This is dealt with above.
It is my view that taking into account all of the information that was given parliament clearly intended to legislate broadly to criminalise not only the activity with the ambit of the Family Law Council definition of female genital infibulation, that is, the ritual practice carried out on female children but also activity beyond that definition so as to criminalise non-ritualised procedures on any person including otherwise mutilating and excising the named body parts. The use of the word “any person” clearly denotes that consideration was given to limiting the Act to children only or to limiting the purpose of the Act only to ritualised activity. No such limitation appeared in the law as passed by parliament.
Finally, if the legislature had intended to make legislation concerning children there are ample places in the Crimes Act where they could have so limited provision of the law. However, s 45 is placed in the division concerning injury to persons not in any of the many divisions concerning offences against children. This is a further indication if any is required, that there was no intention of the legislature to require the section to apply only against children.
I find that s 45(1) does not apply only to children nor only to ritualistic or religious flavoured principles.
I find, therefore, beyond reasonable doubt that the accused is guilty of the charge that on 15 January 2015 he excised a portion of the labia minora of AA contrary to s 45 of the Crimes Act.
In considering counts 2 and 3 on the indictment, it is useful to refer to some evidence which by tendency or coincidence reasoning may be relevant to either of these charges. The general directions of law I spoke of earlier apply to all three charges. In addition, further directions apply to the remaining counts to which I will refer as relevant.

Tendency Evidence

The Crown presented evidence to support what they say is a tendency or tendencies as set out in their notice and the subject of my previous decision. I acknowledge that this evidence is only relevant as the Crown suggests if I decide that the accused did, in fact, conduct himself in the way the Crown alleges on those other occasions. In doing so, I will not consider each of the acts in isolation. If I decide that all or at least some of the conduct occurred then I shall consider whether it enables the inference to be drawn that the accused had a particular tendency as alleged by the Crown.
The Crown submits that the accused had a tendency to (a) undertake procedures that resulted in adverse health complications; (b) to deter his subjects from receiving the treatment from a medical practitioner; (c) to fail to undertake discernible consent procedure or any such procedure involving the informed consent of the subject; (d) to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection; and (e) to fail to provide adequate aftercare.
I acknowledge specifically that the care that needs to be taken and applied to the drawing of inferences. I direct myself that I must consider whether there might be an alternative explanation for the evidence. I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances. This is a real consideration when considering the tendency, and later, coincidence self-direction herein.
If I am not satisfied that any of the conduct that the Crown relies on occurred then there is no basis upon which the tendency or coincidence under consideration could be inferred. If so, I will put the whole issue of tendency or coincidence to one side and confine consideration to the other parts of the Crown case, by which I mean the direct evidence on each charge.
If I do find that the accused had such a tendency as submitted, I may use that finding in considering whether it is more likely that he committed the specific offence which I am considering. However, this tendency or result if it existed on a particular other occasion while useful does not diminish the need for the Court to consider in relation to each charge whether the accused acted in that particular way or had that particular state of mind or a particular result occurred on that specific occasion.
Finding that the accused did have some or all of the tendencies the Crown alleges may assist the Crown to prove the accused committed the offences but it is not enough by itself. I must consider whether it makes it more likely that the accused conducted himself in the way the Crown alleges on the occasion specific to the charge under consideration. If a tendency is found to exist and is relevant to a finding on a particular charge I will refer to the finding and the use it has been put to in a discussion of the evidence.

Coincidence

Relevantly to considerations in count 2 and 3, the Crown allege that the accused had a tendency to undertake procedures that resulted in adverse health complications and/or the procedures he undertook resulted in adverse health complications.
It is an agreed fact in count 1, (the count on which reasons have now been delivered) [agreed fact 23], that as a result of the procedure AA experienced pain for approximately 12 months following the procedure, is unable to use tampons due to pain and experiences discomfort when wearing underwear due to sensitivity at the site of the excision. It is the evidence of Dr Flynn referred to above, an expert called by the accused, that such a result would be unexpected and would indicate something had gone wrong.

This evidence supports the Crown’s assertion that the accused had a tendency to undertake procedures which resulted in adverse health complications. Coincidence reasoning can be applied to consider whether the adverse health complications were as a result of what the accused did, thus assess its relevance on other charges.
In this context, the evidence of Dr Flynn leave no room for doubt on the cause/effect issue. If the adverse outcome as occurred in count 1, bears such a strong similarity to the circumstances in either count 2 or 3 ,or both, the Court may be persuaded that such an adverse outcome occurring by chance but in different procedures is so minimal that the accused by the actions he took was responsible for the similar, that is, adverse health outcome. This reasoning is available as tendency but more relevant, in my view, to coincidence reasoning . I will refer to it later if I propose to use it in that way.
In general terms, the coincidence notice relies on the nature of the accused’s body modification practice and the consequences, the Crown say, of that practice during different procedures. In this case, the Crown says that coincidence relied on are in similar terms to the tendency notice, that is, that the accused:

undertook procedures that resulted in adverse health complications;

to deter his subjects from receiving the treatment from a medical practitioner;

to fail to undertake a discernible consent procedure or any such procedure involving the informed consent of the subject;

to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection; and (e) to fail to provide adequate aftercare.

In the context of this case, the Crown position effectively is that even though tendency and coincidence notices are similar the reasoning must be that if the Court finds that the accused had a tendency which existed as set out in (c) and (d) above which is discernible consent procedure and to undertake procedures without appropriate antiseptic techniques then by coincidence reasoning the outcome in (a), for example, that is the result being an adverse health complication in more than one case, was no coincidence. If there was an adverse health outcome then the tendencies in (b) and (e) relating to referral to doctors and provision of aftercare may then become relevant.
The evidence of the pattern of behaviour can only be used in this way, if I find that the accused did the other acts and the acts are so similar to the acts giving rise to the charge, that it is, highly improbable both acts were committed by a different person or in different circumstances. In the context of this case I there is dispute that the accused performed the procedures that have become the subject of the charges.
I acknowledge that I must decide whether the specific offences with which the accused has been charged have been proven. That decision must be based upon the evidence relevant to each charge. This includes the evidence of the complainants and/or medical evidence about the procedures the accused undertook. It will include the tendency alleged by the Crown, if I am satisfied it has been established, and outcomes which the Crown allege are not coincidental with similar outcomes in the circumstances of each event in the way that I have described above. It will also include observations of witnesses about what each complainant or subject of the procedures said and did before during and after the procedures and if possible and relevant a finding as to why.
I further acknowledge that where some evidence relates to occurrences on occasions other than referred to in the indictment, I will not substitute the conduct of the accused on some other occasion, for conduct that is relied on by the Crown to prove a particular charge.
The Crown in effect, says that the accused has a particular and unusual way of conducting himself or a peculiar pattern of behaving which is apparent from the accounts given by a number of witnesses when they are considered together. The Crown’s argument is that the possibility of the adverse outcomes that are referred to as so similar by chance is so remote, therefore the only explanation is that the accused acted in the same way on diverse other occasions, supporting a conclusion that the accounts given by the witnesses, including what the deceased reported, are true.
The Crown argues the only explanation for the similarity is that they are true accounts of the way the accused behaved in each circumstance under consideration. The more similarity the accounts, the less likely it may be that the accounts can be explained by chance or invention.
If there is no acceptance by me of such similarity or pattern of behaviour existing, then I will look at the evidence of those witnesses independently without having regard to the evidence of other. If the arguments of the Crown are not accepted and there is no finding of such similarity, then I must disregard any similarity in the accounts all together and deal with the charges completely separately. I direct myself that I must not use the evidence of one charge to prejudice the accused with respect to the charge involved in the other if no such pattern is evident, and if there is no such pattern, then the cross admissibility argument was failed and the evidence must be disregarded.
In the context of this case, however, much of the evidence which was included under the tendency banner in the Crown’s notice, has eventually related to direct evidence of what a witness saw or heard with respect to a particular victim or complainant. Ultimately the issue largely evaporated. However, the above, self-direction still applies where cross admissibility is a consideration.

Circumstantial Evidence

Much of the evidence relating to medical issues, such as adverse medical outcome or causation is of a circumstantial nature. The following self-direction applied in addition to the above.
If inferences are to be drawn from any part of the evidence, I should not draw an inference unless it is the only rational inference in the circumstances. Circumstantial evidence is evidence of a basic fact or fact from which I as a fact finder, I am asked to draw a conclusion as to a further fact or facts. In the context of this case, many medical witnesses discussed medical facts from which they drew conclusions in the same way. Some witnesses indicated that the conclusions they drew, could not be drawn to an absolute standard either because absolute testing was unable to be taken or impractical to be completed. In those circumstances, they drew conclusion based on the evidence available, indicating when and if there was any uncertainty and the reasons for that. Those witnesses relied on the basic facts of which there was certainty, such a measurement substances in blood of the deceased, considered other available evidence and drew conclusion if they were able, to draw such a conclusion to their satisfaction.
In a similar way, where the Crown’s case depends on circumstantial evidence, for example, here on the issue of causation, then it relies upon evidence of basic facts from which I as a fact finder, I am asked to infer or conclude that a further facts existed. The observations of the expert witnesses are a significant part of that fact finding exercise.
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence depending on the nature of the circumstances relied upon when considered as a whole, and considering the degree of clarity and certainty of those circumstances.
In some areas circumstantial evidence might be thin and ambiguous and I would place no reliance on it at all. In other areas, circumstantial evidence may be strong and compelling. This is a matter for me as a fact finder to assess. However, I must always keep in mind that because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to the essential elements or ingredients of the charge, I cannot as a matter of law, find the accused guilty of a charge ,unless I am satisfied beyond reasonable doubt that there is no reasonable explanation for the evidence as a whole other than the guilt of the accused.
That is, when I look at the evidence as a whole regarding the count on the indictment, I am considering I should ask myself the question, has the Prosecution proved beyond reasonable doubt that there is no reasonable explanation or theory of evidence consistent with the innocence of the accused.? If it has done so, the proper verdict is guilty. If there remains some other reasonably possible explanation for the outcome, then the verdict must be not guilty.
Any such conclusion of the guilt of the accused from the basic facts relied upon by the Crown, must be a conclusion which by me, beyond reasonable doubt, having taken into consideration, not only the material presented on behalf of the Crown, but also any material presented on behalf of the accused and after having given careful consideration to the submissions of Counsel on behalf of both the Crown and the accused.
The Crown must prove each element of the offence charged against the accused beyond reasonable doubt. If the Crown seeks to prove an element such as one relating to the presentation of the deceased at particular times, or her state of mind when communicating with the accused ,by way of circumstantial evidence, they must prove beyond reasonable doubt, there is no reasonable explanation or theory of evidence consistent with the innocence of the accused.
The Crown does not have to prove beyond reasonable doubt, each of the individual facts from which the Crown seeks to have that rational inference drawn. The quality of the evidence to prove individual facts, can and will differ and that is something that I will take into account in deciding what further conclusions can be properly drawn.

The Evidence of Expert Witnesses

A number of expert medical witnesses have been called to give evidence in the trial and have provided reports. These expert witnesses are individually relevant to each charge on the indictment. It is convenient to note directions I must give myself in relation to those witnesses at this stage.
I have referred in count 1 to the evidence of two expert witnesses and ...(not transcribable)... evidence was not challenged. This direction applies to their evidence as well.
An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a person with such specialised knowledge, may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, what they saw or heard and are not permitted to express their opinions.
The weight of any expert opinion is dependent upon the reliability and accuracy of the material which the expert used to reach his or her opinion. The weight of the expert opinion is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. In the context of this case the Court also considered their understandings of questions asked of them in framing their reports.
Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge. Evidence outside their specialised knowledge and experience is rarely useful in the fact-finding process.
The expert evidence has been admitted here to identify medical or disease procedures and processes and the consequences of those processes in the presentation of the complainant in count 2 and the demise and the circumstances of the deceased in count 3. In addition, evidence has been admitted as to medical protocols and norms. The evidence is admitted to assist in the determination of whether the accused’s acts or omissions in the course of the procedures he carried out, (relevant to counts 2&3) and whether the post-procedure treatment or advice he gave amounted to gross criminal negligence (in the case of count 3). The Crown says this combination caused the ultimate adverse medical outcome in count 3 .
In relation to count 2 the evidence was admitted to assist the Court as to the nature of the procedure undertaken, to explain the processes as was viewed in videos and photos and to explain the outcome which the Crown says was an adverse medical outcome. The defence has a different view on the final outcome in relation to count 2.
If having given the evidence of an expert witness careful consideration I find that I do not accept the evidence of what the expert witness says I do not have to act upon it and this is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be or the expert opinion is based on considerations that are not within his or her expertise. In the present case in relation to particular issues there is conflict in the evidence between the expert witnesses. It is not a matter of simply choosing between their evidence as a matter of simple preference.
In resolving the conflict between the evidence of the expert witnesses I must always keep in mind that it is for the Crown to prove its case beyond reasonable doubt. It is for me to decide whose evidence and whose opinion I accept in whole or in part and whose evidence I reject altogether. I should keep in mind that in reaching a verdict I must consider all of the evidence. In resolving any conflict in the expert evidence I am entitled to consider that particular evidence in the context of all of the evidence before me.

Facts

Agreed facts were tendered at the commencement of the trial, some of which are referred to above. Those agreed facts are relevant to all counts on the indictment. No further evidence is required for the Court to make findings on facts which are subject of the s 191 agreed facts document.
Agreed facts will be referenced in discussions relevant to that charge in order that they retain context . In addition, general evidence in relation to all of the charges by way of background information was proffered. Most of it was not in dispute. All of this evidence is relevant to the remaining two charges to a greater or lesser extent. Some of the evidence referred to below is only relevant as either tendency or coincidence evidence, thus potentially relevant to the remaining charges on the indictment and will be so noted. Where the evidence is relevant to a particular charge or count on the indictment it will be referenced as far as possible in a discussion of that witness’s evidence. I have noted where there have been objections to the admission of some evidence and dealt with those objections in the manner referred to above. Where additional reasons are required they will be referred to in discussion of that witness’s evidence.

General Evidence Relevant to Counts 2&3 and Tendency/Coincidence Considerations

Kerrie Spratt

Kerrie Spratt, is an environmental health officer with the Central Coast Local Health District. Her duties included enforcing Public Health Act regulations including regulations for the skin penetration industry. She investigated the shop known as “Transitions” in this context after a complaint was received. The inspection did not uncover any breaches of the regulations. Further reference is made to those regulations below.
In conversation with the accused Ms Spratt asked what type of procedures he performed. He told her that many people asked him to fix procedures doctors had botched, without further detail except that he had travelled the world training others. She gave him three fact sheets on infection control and sterilisation for people in the body piercing industry. He responded that he had seen them before, had done a course and also trained people. Ms Spratt asked if he provided after care information and he said that if people did not contact him he contacted them. She was told, either he or his partner, Ms Molloy, provided what she understood to be an after care brochure. (exhibit E, tendered by defence.) This document is a price list for piercing with an indication that prices for non-piercing body modification were to be obtained by email. After care information provided relates similarly to piercing procedures with references to jewellery. Under the heading “Healing Troubles” advice is given on saline or honey rinses, not to play with jewellery and not to use alcohol wipes, Dettol, Betadine and harsh cleaning products. I observe that exhibit E also gives contact detail for Facebook, Instagram and email
The witness, spoke to Ms Molloy, who told her that body modification procedures were not done at the shop.
Ms Spratt’s evidence was not challenged.

Lindsay Whitehorn

Lindsay Whitehorn is as tattoo artist, who previously worked at Transitions at Erina Fair from about 2017. His evidence is relevant to count 2 and tendency.
He said he saw the accused (referred to as Brendan, doing procedures such as tummy tuck, scarification and silicone implants. He said on the day he saw a tummy tuck procedure he went into the room and there was in his words “a lady on the bed with the top of her pants rolled down. She had her hands up over her face and was a bit distressed. Her husband was present.” Although the witness did not identify his observations as relating directly to count 2 a conclusion can be drawn that this occasion was 13 November 2016. The details were the same, and no suggestion was put otherwise. .
Mr Whitehorn said he saw the accused cutting into the woman’s abdomen with a scalpel. He described the procedure that he saw and said he was shocked at the amount of blood. He observed Brendan was in normal clothes. He said he was able to walk over and looked and was not required to wear a mask or take any hygiene precautions. This evidence is direct evidence with respect to count 2 and relevant to a consideration as to whether the accused had a tendency to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection. Mr Whitehorn’s evidence was not significantly challenged.

David Olteanu

David Olteanu is also a tattooist who knew the accused and the deceased in count 3. He gave evidence relevant to count 3 and tendency. He recalled the deceased, CC, as one of a large contingent of people who would hang out with Brendan and Alex, (the accused and his partner), and was always there “getting stuff done”. This does not appear to be in dispute. The agreed facts for count 3 deal with the procedures undertaken. I will refer further to Mr Olteanu’s evidence in count 3 in a discussion of that count.
In relation to tendency evidence the witness gave evidence that he questioned some of the things the accused did with him, such as doing things in a studio setting in a shopping centre.
This witness observed what he said was an infection he saw in a client of the accused and he complained to the Health Department. He denied the complaint or his evidence in this trial was coloured by the fact that the accused was a business rival.
In cross-examination when asked about a conversation with the accused after the deceased died the witness said it was the accused’s usual practice to say to any client who had a problem “come and see me before you go to a doctor”(T p 322 lines 8 to 11).
It is a consideration in assessing the honesty of his evidence, however, much of it is supported by evidence of others. Further discussion of Mr Olteanu’s evidence is below.

John Brady

John Brady is also known as Ox, his evidence is relevant to count 3 and tendency.
He was a friend of the accused from 2012 and also a tattooist. They had a falling out and volunteered he was and is still upset by what he believes to be non‑payment of $25,000 for the work he did on the Transitions’ shop fit out.

Defence Experts

Professor David Patterson

Professor David Patterson is a consultant infectious diseases physician, professor of medicine and director of the Centre for Clinical Research University of Queensland. His qualifications and experience were not challenged.
His practice is largely with living patients rather than having significant experience in post mortems. He told the Court he frequently saw patients with upper limb or hand infections. There is no dispute that he is well qualified to provide the report he has. His CV was tendered as exhibit O and his report of 26 April 2021 was tendered as exhibit P. The doctor reviewed the deceased’s medical records and the Crown’s expert medical evidence as referred to in his report including the most recent reports and articles including the transcript of Dr Goman’s evidence. He had access to some police investigative reports including scene of death photographs and summary of medication and packaging.
He also had access to the images which were tendered in the proceedings that became exhibit 14 and exhibit 23, and to the autopsy photographs. He did not apparently have the advantage of access to the witnesses’ statements referring to CC’s complaints and observations of her by lay witnesses prior to her death nor any of the transcripts of evidence in this trial.
Prof Patterson observed that Dr Beer concluded that the direct cause of death was septicaemia arising from infection of the right hand. He observed that photographs and videos do not show, he said, convincing evidence of infection of the hand and his evidence in this regard is referred to above. He was alone in this opinion . However, he conceded that autopsy findings on 18 April 2017 were highly suggestive of infection at the site of insertion of the artificial snowflake.
He observed that Dr Beer did not collect cultures for micro biological confirmation of infection in hand which he thought to be relevant. However during his evidence Dr Patterson confirmed again that there was no doubt in his mind that the deceased suffered an infection in her hand which was evident in post-mortem observation.
Dr Patterson observed in summary that his opinion there was considerable doubt as to the direct cause of death as septicaemia arising from infection of the hand because:

There was lack of evidence for sepsis at two visits to the doctors within 24 hours of death.

His clinical experience is that hand infections rapidly leading to sepsis are due to necrotising fasciitis or other spreading infections rather than localised abscess.

There was a lack of ischemic changes in microscopic examination of the liver and kidneys suggesting there was no prolonged hypo-tension as is typically seen in sepsis.

There was no growth of any organism in blood cultures. He observed potential reasons for this but it was a consideration weighing away from the finding of sepsis.

There was no growth of the bacteria from respiratory samples. This was accompanied by microscopic evidence of lung infection. He thought that there was a potential for these to have contributed to the increase in bio-markers for sepsis.

Dr Patterson based his responses concerning the hand infection from the videos that were available to him. In his report he was less than positive of a finding of hand infection however in cross-examination he conceded that the post-mortem pictures show the hand infected. There is little explanation for this inconsistency other than a suggestion that the hand may have suddenly become infected in the 24 hour period. This is not an observation supported by any other evidence and contradicted by much of it.
Dr Patterson’s major concern with the autopsy finding of sepsis was that he was not convinced beyond reasonable doubt, or even he said “to 90% that the cause was sepsis”. However he was unable to proffer any alternative cause of death and specifically ruled out combined drug toxicity as a major cause.
Finally he gave evidence that his view as to whether it was sepsis was 50/50. He did not rule it out and that is why he proposed an unascertained cause of death.
I observe that this concession that sepsis may well have been the cause of death includes his belief that the hand was not infected on 10 April 2017 and that two doctors on the 11 April 2017 did not notice evidence of sepsis. Both of these primary observations and conclusions are questionable, as I have referred to in detail above. I will not go through it again. Part of the difficulty, and accepting Dr Patterson’s evidence, was the lack of primary information he was given on which to base his opinion.
Another difficulty was his lack of experience with post-mortem diagnoses compared to his vast experience with diagnosing potential infections in a living person and avoiding fatality by sepsis or other disease. In analysing reasons given by Dr Patterson having, as he said, considerable doubt as to the direct cause of death being sepsis he was taken to the reasons he gave for this reservation. The first reason there was a lack of evidence for sepsis at the two visits to doctors within 24 hours of death. He relied solely on the statements by those two doctors. He did not have the benefit of their evidence in court. He did not have the evidence from friends, family and neighbours of the deceased who told the court of her presentation in the weeks and then days before her death. Dr Patterson’s opinion that a person would not be expected to die from a sepsis infection if she was, as he said, “walking and talking the day before.” In cross-examination Dr Patterson was given some information that Natalie Shackleton and family members gave to the court. He dismissed their observation as being “the observations of a lay person” without in my view any real consideration as to what they observed, and whether what they did observe may well have been valid observations. He preferred to rely on the statement evidence of the two doctors who saw her the day before her death, indicating that “doctors would have noticed if a patient was sick and would have taken appropriate action”. My observation of the evidence of those two medical witnesses is referred to elsewhere.
Suffice to say that I accept the observation of friends and family as being valid and supported observations. The quality of their observations is superior to that of the doctors.
When asked how he would have acted if a patient had told him and shown him an infected hand similar to the sort the deceased appeared to be suffering from, he advised the court that he would have immediately advised that person to go to an emergency department in a hospital as her situation was very serious. This observation in reality supports the Crown contention that in failing to do exactly that the accused failed in his duty of care to the deceased. It also supports the observation of the other experts linking the hand infection with the septic full body response.
It seems that Dr Patterson placed great weight on the lack of observation by Dr Van der Walt and Dr Stern. I do not. Dr Patterson’s opinion is based on flawed primary information.
The second reason that Dr Patterson gave for doubting sepsis was his clinical experience is that a hand infection rapidly leading to sepsis is due to necrotising fasciitis or other spreading infections rather than localised abscess. In this regard it is noted that he has no specific experience in post-mortem diagnosis of sepsis and the correlation of procalcitonin in post-mortem examination. His major research relates to the detection and treatment of bacteria in the living, rather than as at post-mortem study. His opinion was based on the material he had access to and the limitations of his experience. He is not a forensic pathologist.
Dr Patterson agreed however, in cross-examination, that “there was much more evidence of the hand being the site of infection rather than the lungs”, and that the lung infection was “far less significant than the hand infection especially if there was no evidence of focal consolidation in the lungs”, which was conceded.
He also agreed that the absence of necrotising fasciitis was not an indication that sepsis was not present, thus supporting the evidence of the major Crown witnesses but specifically Dr Goman.
His third and fourth reasons for doubting the existence of sepsis as a cause of death was that there was a lack of ischemic changes in microscopic examination of the liver and kidneys suggesting there was no prolonged hypo-tension as is typically seen in sepsis. In addition, there was no growth of any organism in the blood cultures. He observed potential reasons for this but it was a consideration he said weighing away from a finding of sepsis. In evidence he agreed that sepsis can occur without either ischemic changes if the onset of septic shock was rapid, or in other cases. He agreed with the observations of Professor Ellis and Dr Beer on these issues and fairly deferred to their greater experience in assessing post-mortem analysis.
He further agreed that the potential use of antibiotics must be considered both on the potential of culture growth and the potential to reduce overall infection. He recognised that not every case of sepsis has a positive blood culture and that the small sample size of blood available may be a consideration. He said he was unaware of the recommended sample time after death was 24 to 48 hours and therefore presumably unaware that a six day delay in sample time may adversely affect any conclusions. . He rightly indicated that he would defer to microbiologist’s opinion on the issue of delay and effect that it may have on the growth of bacteria.
He stated that he never intended his report to be interpreted that a negative blood culture would rule out a finding of sepsis.
His final reason for diagnosing sepsis as a cause of death was the growth of bacteria from respiratory samples and microscopic evidence of lung infection. He said that there was a potential for this to have contributed to an increase in biomarkers seen at autopsy. In evidence, however, he did not suggest that such a localised infection of a relatively small size could account for the entirety of the increase in the measured biomarkers found at autopsy. His evidence was that a lung infection might account for some of it. No other qualified expert suggested that the microscopic lung infection could be responsible for the degree of biomarkers in the post-mortem findings. Professor Patterson did not disagree.
I observe that when given the full information in evidence from other professionals, Dr Patterson resiled significantly from his position of doubt that sepsis was a cause of death. Where he did not, he did not have the advantage that I had of comparing the evidence of the two doctors with others who saw the deceased prior to her death.
In conclusion Professor Patterson observed that “nothing is a hundred percent in medicine.” He referred to the observations only in rare cases such as, he said, a massive heart attack can certainty be given as to the cause of death on post-mortem results. I observe that Professor Ellis gave the same example adding the gunshot wound to the head as being another potential cause of death in a hundred percent certainty. This is not the test that the doctors were asked to consider.
Professor Patterson agreed that his instructions for his report included the direction that the standard of proof he ought to direct his comments to was the criminal standard and therefore different to the usual practice he has of looking for the most likely cause of infection and then, in his practice, acting to divert it. He agreed that he structured his report on the basis of being required to consider a direct and certain cause of death and the opinions he gave were within that context.
In his clinical practice he has dealt with fewer than ten cases of sepsis and only one that led to death. I find that his report and the evidence provided by Dr Patterson increases the Court’s understanding of the features of sepsis and septicaemia but the reservations in his report are based on incomplete information on which to base a conclusion and indeed on less experience and qualifications than the Crown experts.
The second expert called by defence was John Farrar. He is a pharmacologist. His CV was marked exhibit Q, indicated that his expertise in forensic pharmacology and toxicology. He was provided with and read some of the witness statements in these proceedings including the autopsy report, the pharmacology report, the statements of doctors and the deceased’s medical records. He did not have access to the transcripts of evidence given in court by previous experts.
His report was tendered with the sections objected to admitted provisionally as exhibit R. In his report he reviewed the post-mortem examination report and the various certificates of analysis and expert opinion provided by Crown witnesses as detailed in the introduction to his report, exhibit R. He analysed and gave information concerning the substances he found - reported on in the deceased’s system and commented on the levels of those substances. He said Clomipramine and its metabolite, he observed, had a long half life and is toxic in large doses. He noted that the metabolite was not tested for, therefore he noted the level of that metabolite was unknown. He made comment on what it might be expected to be but fairly stated this was no more than a guess. He said that overdosage of this substance can cause central nervous system depression, agitation, convulsions and cardiac arrhythmia which can be fatal.
He fairly observed that the report of Professor Duflou observed that there was no pathological evidence of agitation, convulsions and cardiac arrhythmia. It would therefore seem that the only relevance of Mr Farrar’s observations are in relation to the additive effects of all of the substances and the potential that the combination of clomipramine and its metabolite to cause, as he said, “breathing to stop.” He recalled one case where a lower concentration than was found in this case was found to be a cause of death, (para 53 of his report) but ultimately fairly conceded that one case is insufficient from which to draw any conclusions. This finding is commented on above by Professor Duflou.
As to other substances in the deceased’s system, he observed and reported that Endone was present in a concentration a little above the therapeutic level but on its own would not be of concern, notwithstanding its respiratory depressive effect; another substance with a sedative effect included 7 aminoclonazepam probably showed a level above the therapeutic level anti-mortem. This substance increases the sedative effect of the opiate drugs. Codeine and its metabolite have a mild sedative effect but its concentration was not a concern on its own. Mirtazapine has a sedative side effect he said. Zoplicoe is a sedative and perhaps at a level to suggest it was consumed at a high concentration.
Apart from the toxicology results from the post-mortem, he observed that other substances may have been consumed but not tested for. This included pregnenolone (lyrica) perhaps up to 11 tablets and topiramate both of which would have had, he said, sedative or respiratory depressive effects. He opined that if a drug was sedating then tolerance may be developed but he said it is never absolute. He was of the opinion that notwithstanding this observation, the combined effect may be profound.
In general he opined that there was not sufficient information to make an analysis of these drugs that may have been in her system and on that basis he said that drug toxicity cannot be excluded as a cause of death. At the same time he acknowledged that he was not qualified to comment on the cause of death.
It is observed that Mr Farrar has no medical training or qualifications. He did not suggest he was qualified to comment on the development of septicaemia nor on the cause of death in this case. However, notwithstanding that concession, he told the Court that his view was that the cause was multiple drug toxicity in general. This evidence was objected to but I have admitted it as in reality it exposes the lack of rigour in Mr Farrar’s report as a whole.
He gave the Court an interesting overview of how a substance such as alcohol can result in respiration depression to the point of death. This was irrelevant to the current case as there was no alcohol found in the deceased’s system. Mr Farrar could not point to any pathological evidence to support a finding of respiratory depression related to cause of death which is how he described the mechanism of death if caused by drug toxicity. I observed the more he was challenged in relation to the substance of his findings the more belligerent but less persuasive he became.
He further observed that many of the substances in the deceased’s system also may affect in a detrimental way her ability to recall accurately events that she was discussing with others. He agreed that most of the drugs in her system were those usually taken for pain relief. Those that were sedatives were, he agreed, likely to be taken to sedate herself so she could sleep.
In summary Mr Farrar’s evidence was contradictory. He remained of the opinion there was insufficient toxicology results to exclude combined drug toxicity as a cause of death, however conceded several times that he was not qualified to comment on the cause of death which he eventually defined as being the mechanism of death. He noted that he was not qualified to comment on the development of septicaemia by the deceased nor indeed any cause of death. His evidence is of little use in the deliberations I must undertake.

Dr Richard Byron Collins

Dr Richard Byron Collins is a consultant forensic pathologist. He has appropriate medical and pathology qualifications and his CV was tendered, (exhibit U) and his report, (exhibit S) without opposition. He currently works in a private consultancy practice in forensic pathology. His qualifications and experience were not challenged although noted that his post-mortem experience has been limited in the past six years.
Dr Collins had available to him all of the relevant reports including the relevant Crown expert reports, videos of the procedures and other images taken on 10 April 2017 and the findings and investigation of police that led to the autopsy report. He had access to all Crown expert reports and defence expert reports, evidence from those experts and a summary of the evidence given by lay witnesses who observed the deceased at the time prior to her death . This information was marked exhibit V.
He also viewed the microscopic slides prepared from samples of tissues and organs of the deceased. His report was, I observe, short and largely devoid of the reasoning he used to produce his opinion. Dr Collins observed that notwithstanding the poor quality of the photographs he was of the view that the photographs apparently taken on 8 April 2017 was consistent with an underlying hand infection. He observed that by the time the autopsy was undertaken the infection was, he said, well established and probably had been developing for greater than one week. He was given some information suggesting that trauma from a dog may have been associated with the hand injury and he discounted it as irrelevant. This observation suggests to me that the hand infection occurred, as Dr Collins said, not as a result of external influence but internally as a result of the process involved in the implant procedure. I observe that this observation is consistent with the evidence of the lay witnesses who observed and spoke to the deceased in the week prior to her death.
Dr Collins observed that there was “a reasonable possibility that she was suffering from sepsis at the time of her death but did not believe that septic shock was likely”. He observed that the identification of markers of acute inflammation in a post-mortem sample of her blood is consistent with the presence of inflammation in her body although not necessarily diagnostic of life threatening septicaemia. His report concluded that there is no hard evidence to support the diagnosis of the presence of septicaemia at or about the time of CC’s death particularly in the absence of positive blood culture, although he observed and commented on a number of factors, which could prevent or decrease bacterial growth, such as delay in sampling or use of antibiotics. I pause to observe that this is the observation of all of the properly qualified expert witnesses.

Dr Collins confirmed that the markers of acute inflammation, namely CRP and PCT is consistent with the presence of inflammation or infection in the deceased’s body although he said not necessarily diagnostic of life threatening septicaemia. He further indicated that the timing of the sampling, six days post‑mortem, the diagnostic significance had to be interpreted with caution. The delay, he said, may mean that the levels might not be reflective of the level at death. He did not suggest, however, that the levels would be lower at death than they were at the time of sampling.
Dr Collins was critical of the lack of brain microscopic examination which may have, he said, confirmed the cause of death. He indicated that it was not possible to indicate whether or not septicaemia was a substantial and significant cause of death and in the alternative the same difficulty is applicable to mixed drug toxicity. He was therefore of the view robustly, he said, that the cause of death was unable to be determined. He agreed there were features consistent with septicaemia but doubted that septicaemia progressed to septic shock. He commented that these difficulties are likely related to the time delay between the performance of the post-mortem examination on 18 April and the death on 12 April.
However, Dr Collins concurred with all other qualified opinion in relation to the treatment of septicaemia and the earlier the institution of appropriate medical management the greater the potential for return to normal health, although he was unable to say for sure if medical attention would have resulted in the deceased’s recovery.
With respect, this is an obvious conclusion in the circumstances.
In cross-examination Dr Collins agreed that if an assumption was made that the infection on the back of the hand was in due course the cause of the spread of the infection, then there could have been benefit to treat the infection. He suggested intravenous antibiotics may have assisted.
He concurred that the image on the back of the hand taken 8 April 2017 showed mottling consistent with infection and that on reflection, a review of the samples, it confirmed infection. He observed that the crusted area below the index finger was most likely an ulceration. Microscopic examination confirmed that the infection had been going on for days and was, he said, well established. He observed evidence that the body was trying to mount a healing response in reference to the levels of procalcitonin and neutrophils.
Finally Dr Collins confirmed that there was a reasonable possibility that the presentation of the deceased showed sepsis infection but was not prepared to confirm septic shock. He observed that there was no evidence of damage to major organs and as the mechanisms of death includes a reaction to hypotension damage is usually expected. In evidence he reluctantly conceded that it is not always seen and he was unaware of research on this issue. This line was not pursued .
He saw the engorgement of small vessels with neutrophils. He concurred with Dr Beer that the conclusion on such observations is a subjective interpretation. He said that if they had all been engorged then the conclusion of septicaemia would have been more convincing but did not suggest that this observation ruled out organ damage. His final observation that he was not able to say what the sole cause of death was. He resolved therefore that it was undetermined, while not excluding life threatening septicaemia as a possibility.
He did not have access to all of the lay witnesses’ evidence but he did have a summary of relevant parts of it. He did not have the advantage I had of assessing that evidence opposite the doctors’ evidence. Dr Collins’ experience in recent years of examining autopsy findings has been more limited than either Professor Duflou or Dr Ellis. He has in the past conducted many autopsies but only required to undertake private examinations and undertakes about six a year in his current position. He has not been involved in the diagnosis of sepsis related death diagnosis since 2016. This is a relevant period as in 2016 an improved definition and an array of diagnostic tests and researches concluded that there was a new definition of sepsis as being an improved method of diagnosis especially at autopsy. This is called Sepsis 3 and was referred to in the background information from Dr Goman.
Dr Collins was able to accept on that basis that the presence of elevated CRP is of interest but observed that it was only moderately raised. He suggested that for procalcitonin any level greater than 2 would be consistent with sepsis. I observed that the measurement was 2.3. He was unaware of the significance of delay on those measurements. He was similarly happy to agree that for sepsis to occur a local site of infection was required for the whole process to commence. He agreed that the hand infection had been present for several days on his observation. He did not seem to accept the significance of this finding.
He was not able to totally agree that the neutrophils in the heart had clinical significance as he said not every vessel was engorged and observed that engorgement was not present in some of the other major organs. He was however unable to point to any clinical or other research to support his proposition. He agreed that neutrophils in the lung tissue was an indicator of sepsis.
Importantly, he pointed out that every case was different. If the person was still alive observations of respiration and organ function could be measured. In a post mortem situation this was obviously not possible. He suggested that a battery of tests would be performed on a living person in order no doubt to identify the nature of the infection so as to properly combat it. He conceded that that type of testing is not possible on a deceased person.
Finally Dr Collins agreed that the absence of observation of liver or kidney damage was not determinative and agreed that it takes some time for blood pressure observations to have that effect. He conceded the research by Kumar and others that rapid onset mechanism for sepsis and the absence of hypoxic change to organs does not negate disease. Dr Collins was unable to suggest any other cause of death consistent with the findings. These concessions were subtle concessions and in effect supported the final conclusions of Professor Duflou, Professor Ellis and Dr Goman that the most likely cause of death was septicaemia associated with the infected hands.
I do note that Dr Collins was given the summary of the evidence of the lay witnesses, Shackleton and others, which became exhibit V after his report was prepared. He commented on that in his evidence but it is obvious, comparing his report to his oral evidence that reading that summary of evidence did not alter his original conclusions, that is, that the deceased was well on 11 April. He obviously gave the lay observations no weight at all in his reconsideration. I disagree that their evidence or the personal observations of the deceased prior to her death are not important. Each of the other experts placed weight on the presentation of the deceased in the days before her death in one way or another.
Dr Collins was one of the major witnesses who had access to this evidence given in Court but he did not obviously give it any weight. This lack of consideration by Dr Collins diminishes in my view the reliability of his findings.

Causation

I have made findings above as to the duty of care owed by the accused too the deceased. I have made findings as to the breach of that duty and how it was breached. I have made findings as to the degree of seriousness or negligence of that breach. In considering whether the Crown have proved beyond reasonable doubt that an act or omission of the accused substantially or significantly contributed to her death, I acknowledge that it is not sufficient that the act or omission was merely coincidental with the death of the victim or was insignificantly connected with it.
In considering the cause of death I have discussed at length the evidence of all of the experts.
Mr Farrar’s evidence cannot be accepted for the reasons noted above. In my view reliance can be placed on the individual and combined force of the evidence of Dr Beer, Dr Goman, Professor Duflou and Professor Ellis. All of those pathologists including ultimately some concessions by Dr Patterson and in part Dr Collins agree that sepsis, a mechanism of death, was operating and it was in effect a substantial cause of death. Drug toxicity may have been a contributing factor.
In particular, the evidence of the Crown witnesses, especially Professor Ellis, Professor Duflou and Dr Goman, was compelling and well-reasoned and supported by research and expertise. The fact that a pathologist, Dr Collins, remained relatively neutral suggesting that the cause of death was unascertained has been discussed.
No expert witness with appropriate qualifications that enabled a cause of death to be considered suggested a cause of death that was anything other than sepsis associated with the hand infection and ultimately all of the pathologists, even those called by the defence, confirmed that sepsis as a cause of death was consistent with the autopsy findings, was consistent with the infection at the back of the hand and that no other cause was.
The unascertained opinions that I have referred to above do not detract from the affirmative opinion of Professor Ellis, Professor Duflou and Dr Goman. Their substantial experience, study and research underpin a reliable basis for acceptance of their considered opinions. In particular, the evidence of Dr Goman which is supported by significant study, research and reasoning, is entirely acceptable.
Professor Patterson ultimately gave evidence that he did not suggest positively any other cause of death able to be found on the evidence that he saw. I have already made comment on the lack of information that he was given with which to draw a conclusion.
Dr Collins was an impressive witness in giving evidence but was unable to support his opinion by any recent peer review research and his recent autopsy experience was limited and non-specific. Ultimately his findings that the cause of death was undetermined was unable to be sustained under cross-examination and ultimately he agreed there was no other cause of death consistent with all findings.
Where any expert expressed a doubt as to cause of death a major consideration was the deceased’s presentation in the days prior to her death. That was the subject of very convincing evidence in the hearing before me. The expert witnesses did not have the advantage that I had of assessing that evidence. I find that in the days before her death CC’s presentation was that of a very sick individual consistent with an infection that was becoming uncontrolled. She was in significant pain and presenting as unable to stay awake, notwithstanding her complaint of not being able to sleep. She was suffering extreme pain from her hand and was presenting as exhausted and generally unwell.
This evidence supports the findings of the experts that an infection was likely to be extending beyond her hand within that limited time frame. It is not necessary to find when the hand infection became the generalised blood infection resulting in death. It may have been within the five hours immediately before her death or some greater time before it. The lack of ischaemic changes to her organs is not conclusive by the way. A contributing cause of death may have been drug toxicity which, as explained by Dr Goman, may have contributed to the speed of her demise.
I have considered again the requirement for the Court to be very careful drawing inferences when considering matters to which the Crown obligation is to prove its case beyond reasonable doubt.
Having made findings that a significant or substantial cause of death was sepsis then the Court looks to the further issue of causation. That is with respect to the accused’s duty of care, the breach of that duty of care as I referred to above. The act of the accused were;

To insert the implant under the deceased’s skin on or about 20 March 2017.

To do so in such circumstances that it was likely that the proper care was not taken to avoid future infection.

When advised that the hand was presenting as infected he did not refer the victim for proper medical attention.

He advised her that the hand was not infected and then proceeded to manipulate the implant in such a way as was likely to cause further spreading of infection.

Notwithstanding the presentation of infection already existing, he inserted more implants under the skin at the thumb. The insertion of those further implants would have been likely to increase the risk of infection especially as I note in the circumstances that those implants were inserted, which again was without proper care to avoid further infection without proper antiseptic care.

Further on 10th and 11th April 2017, he avoided telling the victim to seek proper medical attention as a matter of urgency. He told her, she should not worry and to take further migraine medication for the pain.

His breach of duty of care was so significant as to be considered a gross breach, deserving of a criminal response. His actions and omissions played a direct causative path in CC’s death. All of these by actions by the accused ,as I have noted above operated singularly or together as a substantial cause of harm suffered by the victim, ultimately her death.
There was no intervening act. There is no conclusion from all of the evidence before the Court that is consistent with accused’s innocence.
I find that the death of CC was initially as a result of an infection to the hand which developed into septicaemia was a significant or substantial cause of death. The accused breach of his duty of care was at such gross level that his acts and omissions were causative of her death to a significant or substantial degree.
I am for those reasons satisfied beyond reasonable doubt that the accused caused the death of the deceased and therefore return a finding of guilty on count 3.

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Amendments

12 April 2022 - paragraphs [352], [371], [564], [565] and [569] - anonymisation of name

Decision last updated: 12 April 2022

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.