1. In relation to Count 1 the appeal against conviction is allowed, the conviction is quashed and a verdict of acquittal is entered.
2. Leave is granted to appeal in relation to grounds 3, 4, 8 and 9.
3. The appeal against conviction in relation to Counts 2 and 3 is dismissed.
4. The aggregate sentence imposed by Syme DCJ on 4 July 2022 is quashed and, in lieu thereof, the Appellant is sentenced to an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years to commence on 15 September 2021 and expire on 14 September 2028 with a non-parole period of 5 years and 3 months imprisonment to commence on 15 September 2021 and expire on 14 December 2026. The Appellant is first eligible for parole on 14 December 2026.
Catchwords:
CRIME – appeals – appeal against conviction – female genital mutilation – whether excision of part of the labia minora of complainant was contrary to s 45 of the Crimes Act 1900 (NSW) – whether purpose of s 45 was to prevent female genital mutilation being performed on female children – whether statements as to purpose of s 45 by High Court in The Queen v A2 (2019) 269 CLR 507 required s 45 to be read down so as only to apply to female children – where actual text of s 45 does not support such a reading – principles of statutory interpretation – purposive construction – departure from literal meaning of statute
CRIME – appeals – appeal against conviction – whether consent available as a defence to a charge of infliction of grievous bodily harm – where body modification artist performed “tummy tuck” surgery on complainant who consented to such surgery – consideration of the role of consent in cases of actual and grievous bodily injury – whether considerations of autonomy should render consent a defence
CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – where the Appellant inserted a silicon implant into the hand of the deceased – whether evidence capable of establishing beyond reasonable doubt that the Appellant’s treatment of the deceased was criminally negligent
CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – causation – where multiple possible causes of death – whether evidence capable of proving beyond reasonable doubt that septicaemia was a significant or substantial cause of death – whether multi-drug toxicity was the sole or a contributory cause of death
CRIME – appeals – appeal against conviction – miscarriage of justice – failure to give a “Shepherd direction” that the Crown had…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Russell v The King [2023] NSWCCA 272
Case
[2023] NSWCCA 272
Decision Date
CaseChat Overview and Summary
The case of Russell v The King involved multiple appeals against conviction and sentence. The appellant, Russell, faced charges including female genital mutilation, infliction of grievous bodily harm, manslaughter by criminal negligence, and failure to provide a Shepherd direction regarding the cause of death. The appeals were heard in the High Court of Australia. The central issues were whether the excision of part of the labia minora constituted a contravention of section 45 of the Crimes Act 1900 (NSW), the applicability of consent as a defence in grievous bodily harm cases, the standard of proof in determining the cause of death, and the fairness of the sentence imposed.
The court examined the statutory interpretation of section 45, considering its purpose and whether it was intended to protect female children from genital mutilation. The court determined that the literal text of the statute did not support a reading that limited its application to female children. Furthermore, the court assessed whether consent could negate liability in cases of grievous bodily harm, concluding that considerations of autonomy did not render consent a defence in such cases. Regarding the manslaughter charge, the court scrutinised whether the evidence established beyond reasonable doubt that the appellant's actions were criminally negligent and whether septicaemia was a significant cause of death. The court also considered the need for a Shepherd direction and whether the failure to provide such a direction constituted a miscarriage of justice.
In its reasoning, the High Court upheld the convictions, finding that the excision of part of the labia minora contravened section 45. The court also held that consent was not a defence to charges of grievous bodily harm. The court further determined that the evidence was sufficient to establish criminal negligence and that the failure to provide a Shepherd direction did not result in a miscarriage of justice. Finally, the court assessed the severity of the sentence, concluding that it was not manifestly excessive. The High Court dismissed the appeals, affirming the original verdicts and sentences.