Russell v R

Court of Criminal Appeal (NSW)|2023-09-01|Before: Bell CJ, Stern JA, Adams J

ent Act 1994 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) ss 5A, 25C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 44(2A) Domestic Abuse Act 2021 (UK) s 71 Evidence Act 1995 (NSW) s 177 Family Law Act 1975 (Cth) s 63(1) Interpretation Act 1987 (NSW) s 33 Offences against the Person Act 1861 (UK) s 47 Private Health Facilities Act 2007 ss 4, 33, 39 Private Health Facilities Regulation 2010 (NSW) regs 3, 3A Private Health Facilities Regulation 2017 (NSW) regs 3, 4, 13A Public Health Act 2010 (NSW) s 39A Cases Cited: A2 v The Queen [2018] NSWCCA 174 Attorney-General's Reference (No 6 of 1980) [1981] QB 715 Baker v R [2023] NSWCCA 262 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157 Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1; [1981] HCA 40 Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 Davis v Chief of Army [2011] ADFDAT 1; (2011) 278 ALR 199 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Dowling v R [2020] NSWCCA 290 DS v R; DM v R [2022] NSWCCA 156 Fantakis v R [2023] NSWCCA 3 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Freeburn v The Queen [2020] VSCA 155 Hill v Zuda Pty Limited [2022] HCA 21; (2022) 96 ALJR 540 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Kapua v R [2023] NSWCCA 14 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Macdonald v R [2023] NSWCCA 250 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 McCarthy v R [2019] EWCA Crim 2202 Mc-Graw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19 Neal v R (2011) 32 VR 454; [2011] VSCA 172 Nydam v R [1977] VR 430 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 Paterson v R [2021] NSWCCA 273 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 R v Barnes [2005] 1 WLR 910 R v Brown [1994] 1 AC 212 R v Coney (1882) 8 QB 534 R v Cuerrie [1998] 2 SCR 371 R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 R v Dica [2004] QB 1257 R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214 R v Donovan [1934] 2 KB 498 R v Eriksson [2001] NSWSC 781 R v Gary Gow [2006] NSWDC 78 R v HA [2008] NSWSC 1368 R v Hennigan [1971] 3 All ER 133 R v Jobidon [1991] 2 SCR 714 R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 R v Konzani [2005] EWCA Crim 706 R v Lee [2006] 3 NZLR 42 R v M(B) [2018] EWCA 260 R v McIntosh [1999] VSC 358 R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 R v Mwai [1995] 3 NZLR 149 R v O'Brien [2003] NSWCCA 121 R v Raabe [1985] 1 Qd R 115 R v Richardson [1999] QB 444 R v Stein (2007) 18 VR 376; [2007] VSCA 300 R v Walker [2023] NSWCCA 219 R v Wilson [1997] QB 47 Reeves v The Queen [2013] HCA 57; (2013) ALJR 215 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611; [1975] HCA 41 Rogers v Whittaker (1992) 175 CLR 479; [1992] HCA 58 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 Schloendorff v Society of New York Hospital (1914) 105 N.E. 92 Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Slattery v R [2023] NSWCCA 117 Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Towse v R [2022] NSWCCA 252 Ussher-Clarke v R [2018] NSWCCA 61 Texts Cited: A J Watkins, "Score and Pierce: Crimes of Fashion? Body Alteration and Consent to Assault" (1998) 28 Victoria University of Wellington Law Review 371 B Bix "Assault, Sado-masochism and Consent" (1993) 109 Law Quarterly Review 540 D Kell, "Social Disutility and the Law of Consent" (1994) 14 Oxford Journal of Legal Studies 121 Family Law Council, Female Genital Mutilation, (June 1994) K J Arenson, "Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen" (2014) 33(2) The University of Tasmania Law Review 300 Law Commission for England and Wales, Consent in the Criminal Law: A Consultation Paper (1995) Category: Principal judgment Parties: Brendan Russell (Appellant) The Crown (Respondent) Representation: Counsel:

M Tedeschi AM KC with C Newman (Appellant) S Dowling SC with E Nicholson and D Beaufils (Respondent)

Conditsis Lawyers (Appellant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2018/136609; 2018/248702 Publication restriction: Pursuant to a statutory non-publication order made pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any information which could identify the three complainants, any friend or relative, living or deceased, of the three complainants or the witness referred to as MA. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2021] NSWDC 782 Date of Decision: 15 November 2021 Before: Syme DCJ File Number(s): 2018/136609; 2018/248702

HEADNOTE [This headnote is not to be read as part of the judgment] On 15 November 2021, following a judge alone trial in the District Court which took place between 13 September and 28 October 2021, Syme DCJ (the trial judge) found the Appellant, Mr Brendan Russell, guilty on all three counts of an indictment dated 21 May 2021: R v Brendan Russell [2021] NSWDC 782. On 4 July 2022, the trial judge sentenced the Appellant to a period of 10 years imprisonment with a non-parole period of 7 years and 6 months. The three counts on the indictment were: (1) Count 1: One count of female genital mutilation contrary to s 45(1)(a) of the Crimes Act 1900 (the Crimes Act); (2) Count 2: One count of grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act; and (3) Count 3: One count of manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act. Each of the three counts related to procedures performed by the Appellant when conducting trade as an "extreme body modification artist", either at a business he owned called Transition Tattoo and Body Modification at Erina Fair, Erina (Transition) or at Tribal Urge, a tattoo studio in Newcastle. The Appellant was not at any time a medical practitioner, authorised professional, medical student or midwifery student. Count 1 involved a "labiaplasty" procedure performed by the Appellant on AA, with AA's consent, on or about 5 January 2015 in which he partially excised her labia minora. The procedure was conducted for cosmetic purposes. Count 2 concerned an "abdominoplasty" or "tummy tuck" procedure performed by the Appellant on BB on 13 November 2016 which involved removing skin from her abdominal area. The procedure resulted in adverse health outcomes for BB and she required emergency corrective surgery which left significant scarring on her abdomen. It was not in dispute that BB consented to the procedure in the broad sense in which consent is used in the criminal law. Count 3 arose out of the insertion by the Appellant on 20 March 2017 of a silicon snowflake shaped mould under the skin of CC's right hand. From around late March 2017, several lay witnesses made observations of CC, including that she appeared to be in pain and that the wound on her hand seemed to be infected. On 10 April 2017, CC returned to see the Appellant at Transition due to her concerns about the implant site. He injected her hand with anaesthetic, reopened the implant wound and repositioned the implant under the skin. The Appellant also inserted another implant under the skin of her thumb. Later that day CC complained to her mother and friend about bleeding from her hand and to her friend and brother about pain in her hand. Her brother observed the wound having pus and black blood. On 11 April 2017, CC had appointments with a GP (but not her usual GP) and neurologist in relation to pain associated with her pre-existing persistent daily migraines. CC was prescribed a variety of medications including Lyrica (pregabalin). CC did not say anything to those medical practitioners about her hand and they did not make any observations consistent with CC having sepsis. However, also on 11 April, CC filled a prescription for antibiotics which had been written in January 2017 and a friend observed CC's hand was weeping blood and pus, that she looked "worse than before" and seemed confused with slurred speech. She told another friend she felt terrible and was struggling. CC's mother spoke to her on the phone and she sounded "off with the fairies". At 6.33 pm CC phoned the Appellant about the infection in her hand and seemed really concerned and sounded "groggy". The Appellant told her to come and see him the next day and to take Advil. CC asked if she should take her new migraine medication and the Appellant said "yes". He told CC that the implant was "irritated" not infected and did not encourage her to seek medical attention. On 12 April 2017 at approximately 1 am, CC spoke with her neighbour on her balcony for about 10 minutes. Her neighbour observed that she didn't sound as slurred but that her hand was more swollen than before and seemed worse. CC told her that it was "just so painful". At around 6 am, CC was found deceased. An autopsy was conducted on 18 April 2017 and samples of CC's urine and femoral blood were collected for analysis. A toxicology report and evidence at the scene of her death indicated that CC had consumed several pharmacological substances in the hours prior to her death, including codeine, morphine, oxycodone, oxymorphone, zopiclone, 7-aminoclonazepam and clomipramine. It was also apparent that she had consumed 11 Lyrica (pregabalin) tablets, but at the time there was no toxicological test for pregabalin. There were potentially four ways in which CC's death might have been caused: (1) by sepsis and/or septic shock, (2) by multi-drug toxicity, (3) by the combined effects of sepsis and multi-drug toxicity, or (4) by an unascertained cause. Five forensic pathologists, two infectious disease physicians and two pharmacologists/toxicologists gave evidence in relation to CC's cause of death. The Appellant agreed that he owed CC a duty of care. The trial judge held that the Appellant breached this duty by inserting the implant in circumstances where proper care was not taken to avoid future infection, not referring CC for proper medical attention when her hand was presenting as infected, manipulating the implant in such a way as was likely to cause further spreading of infection, inserting a further implant which would have been likely to increase the risk of infection especially in circumstances where it was likely that proper care was not taken to avoid future infection and not telling CC she should seek proper medical attention as a matter of urgency. Her Honour went on to find that a significant or substantial cause of CC's death was sepsis (and that multi-drug toxicity may have contributed to the speed of her death) and that consequently, the negligent acts and omissions of the Appellant operated singularly or together as a substantial cause of CC's death. Moreover, the Appellant's breach of his duty of care was found to be so significant as to be considered deserving of a criminal response. The Appellant sought leave to appeal from his conviction on all three counts. The grounds of appeal can be summarised as follows: (1) Ground 1: In relation to Count 1, the trial judge erred in ruling that the offence under s 45(1)(a) of the Crimes Act applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices. (2) Ground 2: In relation to Count 2, the trial judge erred in concluding that consent is no defence to a charge of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act. (3) Grounds 3, 4, 8 and 9: The verdict in respect of Count 3 is unreasonable and cannot be supported having regard to the evidence. (4) Grounds 6 and 7: In relation to Count 3, the trial judge erred by failing to direct herself as to and not applying the appropriate standard of proof in finding that septicaemia was a significant or substantial cause of CC's death. The Appellant also sought to appeal from his sentence. The grounds of appeal can be summarised as follows: (1) Grounds 10, 11, 12 and 13: In relation to all three counts, the trial judge erred in assessing the indicative sentences by failing to adequately take into account various factual matters, including that each of the complainants had consented to the procedures, resulting in the imposition of an aggregate sentence that was manifestly excessive. (2) Ground 14: The aggregate sentence imposed was manifestly excessive. The Court held (Bell CJ, Stern JA and N Adams J), granting leave to appeal, allowing the appeal against conviction in respect of Count 1, dismissing the appeal against conviction in relation to Counts 2 and 3 and resentencing the Appellant to an aggregate sentence of 7 years with a non-parole period of 5 years and 3 months:

As to Ground 1: (1) There is no textual support for the confinement of the operation of s 45(1) of the Crimes Act to female children and, but for the majority decision in The Queen v A2 (2019) 269 CLR 507 (A2), several powerful textual considerations would have led to a rejection of the Appellant's argument that s 45(1) should be confined to proscribed acts of mutilation performed on female children as a result of ritualistic practices: [27]-[29]. Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 and McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, applied. (2) What was said in unqualified language by the majority in A2 as to the purpose of s 45 being for the benefit and protection of children amounts to "seriously considered dicta". In particular, the reliance upon the purpose of the Crimes Act and the "practices" which it was concerned to criminalise, in dismissing an argument that s 45 would operate to criminalise adult body piercing, lent added force to the dicta relied upon by the Appellant: [30]. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, applied. (3) Consistent with the important role of purpose in statutory interpretation, s 45(1) of the Crimes Act should be read down by reference to what the majority in A2 identified in seriously considered dicta as being the purpose of that section: [31]-[38]. Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1, SZATL v Minister for Immigration and Border Protection (2017) 262 CLR 362, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and Maloney v The Queen (2013) 252 CLR 168, referred to.

As to Ground 2: (4) The question whether a person may consent to the infliction of actual bodily harm does not arise for determination in this case. Consistent with the approach of Lord Burnett in R v M(B) [2018] EWCA 260, subject to well-established exceptions, a person cannot consent to the infliction of grievous bodily harm. This position is underwritten by robust common sense and could not be described as either paternalistic or moralistic. It also accords with the vast weight of judicial authority in common law jurisdictions, including the clear majority position in R v Brown [1994] 1 AC 212, noting that even the minority judgments in that case did not contemplate that consent would be available as a defence to a charge of infliction of grievous bodily harm and that the central thesis referred to by McHugh J in Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 (Marion's Case), respectful of personal choice and autonomy, was not unqualified: [89], [91]-[92]. McCarthy v R [2019] EWCA Crim 2202, R v Richardson [1999] QB 444, R v Stein (2007) 18 VR 376, R v McIntosh [1999] VSC 358, Schloendorff v Society of New York Hospital (1914) 105 N.E. 92, R v Lee [2006] 3 NZLR 42, R v Coney (1882) 8 QB 534, R v Donovan [1934] 2 KB 498, Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, Attorney-General's Reference (No 6 of 1980) [1981] QB 715, R v Raabe [1985] 1 Qd R 115, R v Jobidon [1991] 2 SCR 714, R v Wilson [1997] QB 47 and Davis v Chief of Army [2011] ADFDAT 1, considered. (5) Certainty is an important quality in the law and case-by-case inquiries into the social utility or disutility of particular conduct are best left for the legislature. Even if this Court embarked upon an examination of the public benefit in the context of this case, the risks attending a significant surgical procedure such as that undertaken by the Appellant on BB are sufficient to trump appeals to personal autonomy: [92], [94]. (6) That consent cannot operate as a defence to a charge of assault occasioning grievous bodily harm was the position taken in R v Stein (2007) 18 VR 376. There being one common law of Australia, this Court should not take a different approach to a question considered by an intermediate court of another state at a similar level in the judicial hierarchy unless convinced that that earlier approach is plainly wrong: [93]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 and C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390, referred to. (7) Parliament has signalled by way of the Private Health Facilities Act 2007 (NSW), and regulations made under that Act, that abdominoplasty as a form of cosmetic surgery must not be performed at a private health facility that is not licensed. Although this statutory regime was not in force until after the Appellant's procedure was performed on BB, it is consistent with this Court's view that it is not in the public interest that a person can voluntarily submit to a significant piece of surgery undertaken other than by a qualified health practitioner in licensed premises: [95]-[96]. (8) A series of cases involving consent in the context of the transmission of sexual diseases did not support the Appellant's argument. These cases all drew a distinction between the intentional infliction of injury (to which consent would not lie as a defence) and the reckless infliction of injury in the course of, or incidental to, consensual sexual activity. The Appellant did not inflict the injury on BB incidentally in the performance of some other lawful activity. Rather, the wounding to BB's stomach was his specific intention: [97]-[98]. R v Dica [2004] QB 1257, R v Barnes [2005] 1 WLR 910, R v Konzani [2005] EWCA Crim 706, R v Mwai [1995] 3 NZLR 149, R v Cuerrie [1998] 2 SCR 371 and Neal v R (2011) 32 VR 454, considered.

As to Grounds 6 and 7: (9) No Shepherd direction was required because the factual matter identified was causation (that the deceased developed sepsis which was a substantial or significant cause of her death) which was an element of the offence. The practical reality was that satisfaction of causation beyond reasonable doubt necessarily implied satisfaction that the deceased had sepsis and that it was a substantial or significant cause of her death: [111], [117], [123]. The Queen v Baden-Clay (2016) 258 CLR 308, The Queen v Hillier (2007) 228 CLR 618, R v Keenan [2009] HCA 1, Macdonald v R [2023] NSWCCA 250, R v Davidson (2009) 27 NSWLR 150, Fantakis v R [2023] NSWCCA 3, applied. (10) The trial judge did not adopt a lower standard of proof when considering whether the Crown had proved that septicaemia was a substantial or significant cause of CC's death. Her Honour correctly stated the standard of proof for causation and went on to provide her reasoning for being satisfied beyond reasonable doubt that sepsis was a significant or substantial cause of death with reference to the expert and lay witness evidence: [118]-[124].

As to Grounds 3, 4, 8 and 9: (11) In considering whether a verdict is unreasonable, it is not the Court's task to determine whether there was error in the trial judge's factual findings. Rather, the Court is required to determine whether the whole of the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the Appellant is guilty on Count 3. This inquiry necessarily requires the Court to consider whether it is satisfied that the elements of the offence are established beyond reasonable doubt, including causation: [126]-[127], [252]. Dansie v The Queen [2022] HCA 25, Filippou v The Queen (2015) 256 CLR 47, Slattery v R [2023] NSWCCA 117, M v The Queen (1994) 181 CLR 487 and Pell v the Queen (2020) 268 CLR 123, applied. (12) The test for causation does not require either a percentage attribution as between the act or omission of the accused and other potential causative factors or a comparison as to the relative causative potency of various operative causes. Rather, the Court should assess the whole of the evidence with a view to determining whether or not the link between the accused's act or omission and the relevant outcome is sufficiently substantial or significant that the accused should be criminally liable for the outcome. If it is, then the accused's act or omission will be a cause of the outcome, even if there is another cause or contributor which of itself may have also been sufficient to cause the outcome: [139]. Swan v The Queen (2020) 269 CLR 663, R v Hennigan [1971] 3 All ER 133, R v Moffatt [2000] NSWCCA 174, Freeburn v The Queen [2020] VSCA 155, Ussher-Clarke v R [2018] NSWCCA 61, Campbell v The Queen [1981] WAR 286, Baker v R [2023] NSWCCA 262 and Royall v The Queen (1991) 172 CLR 378, considered. (13) Having carefully reviewed all the evidence, the Court is satisfied beyond reasonable doubt that sepsis was a cause of death. This finding is supported by the matters relied upon by the various experts as well as the evidence as to CC's deteriorating condition given by those who saw or spoke to her in the period shortly before her death. The lack of concrete findings of sepsis in the post-mortem context, the apparent speed of onset and the failure of the medical practitioners CC saw on 11 April 2017 to identify anything suggesting sepsis, do not stand against that conclusion: [341]-[347]. (14) The evidence does not support a conclusion beyond reasonable doubt that sepsis was the sole operative cause of death. Rather, multi-drug toxicity was a contributory cause of death. However, the evidence was sufficient in nature and quality to eliminate any reasonable possibility that multi-drug toxicity was the sole cause of CC's death: [350], [383]-[384]. (15) There were two potential causative mechanisms by which multi-drug toxicity and sepsis may have combined to cause death: first, the effect of the drugs may have precluded the deceased realising the extent of her deterioration by reason of her sedation; second, the deceased's sepsis may have made her more vulnerable to the respiratory depressive or cardiac toxic effects of the drugs; third, drugs may have added to the depressive effects of sepsis: [353]. (16) Having conducted an independent assessment of all the evidence, including as to the contribution that multi-drug toxicity may have made to CC's death, the Court is satisfied beyond reasonable doubt that the role played by sepsis in the death of CC should be characterised as substantial or significant and that it was sufficiently substantial for responsibility to be attributed to the Appellant for CC's death: [354]-[355]. (17) The evidence is also of sufficient nature and quality to eliminate any reasonable doubt that the Appellant was criminally negligent. The Appellant conducted a surgical procedure on CC in unhygienic conditions without the requisite skill and expertise thereby exposing her to a high risk of injury resulting from infection. When CC presented with an infected hand on 10 April 2017, the Appellant manipulated the implant which increased the risk of sepsis and failed to advise her to seek medical help. The breach of duty thus occurred over a period of days and weeks and does not rely on the critical hours before her death: [380].

As to Grounds 10, 11, 12, 13 and 14: (18) Given the quashing of the Appellant's conviction on Count 1, it is necessary to re-sentence the Appellant on Counts 2 and 3. In those circumstances, it is not necessary to consider whether the aggregate sentence imposed was manifestly excessive: [385]. (19) In assessing the objective seriousness of both Counts 2 and 3, there was no error in the trial judge's approach to the significance of the victims' consent. On the facts of this case, consent could not be assessed without the countervailing force of the breach of trust. No error was alleged in respect of her Honour's finding that the Appellant's moral culpability was not reduced on account of the victims' consent. The Appellant accepted that the reference to "moral culpability" in the submissions before her Honour should have been a reference to "objective seriousness", a separate but related concept: [421]-[428], [446]-[448]. DS v R; DM v R [2022] NSWCCA 156, Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, Bugmy v The Queen (2013) 249 CLR 571, McCarthy v R [2019] EWCA Crim 2202 and R v M(B) [2018] EWCA 260, considered. (20) The trial judge did not err in finding that the objective seriousness of Count 2 was "below but not substantially below midrange". The Appellant should be re-sentenced on the basis that although he did not tell BB that he had surgical training, he told her that he had training and experience in terms which impressed her, and which added to the feeling of trust he fostered: [438]-[443]. Towse v R [2022] NSWCCA 252, Kapua v R [2023] NSWCCA 14 and R v Walker [2023] NSWCCA 219, referred to. (21) Count 3 was not at the "bottom of the range" of objective seriousness as contended by the Appellant. The objective seriousness of Count 3 is not reduced by either the contributing factor of multi-drug toxicity or the fact that CC did not become seriously ill until after her last appointment with the Appellant. Moreover, the Court is satisfied beyond reasonable doubt that CC was aware of the representations made by the Appellant on the "Fetlife" website that he had a "full extensive surgical background": [451], [454], [458]-[460]. (22) The Appellant did not have a strong subjective case. The comparative cases relied upon by the Appellant were of assistance only with respect to the relevant sentencing principles but there are no truly comparable cases in this matter: [461]-[467]. R v Eriksson [2001] NSWSC 781, R v O'Brien [2003] NSWCCA 121, Dowling v R [2020] NSWCCA 290 and R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214, considered.

JUDGMENT

THE COURT: On 15 November 2021, following a judge alone trial in the District Court between 13 September and 28 October 2021, Syme DCJ (the trial judge) found the Appellant, Mr Brendan Russell, guilty on all three counts of an indictment dated 21 May 2021: R v Brendan Russell [2021] NSWDC 782 (primary judgment or PJ). Those three counts were: 1. Count 1: One count of female genital mutilation, contrary to s 45(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act), relating to the excision of part of the labia minora of the complainant, AA, on or about 5 January 2015 at Newcastle West; 2. Count 2: One count of grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act, relating to the performance of an abdominoplasty procedure on the complainant, BB, on 13 November 2016 in Erina; and 3. Count 3: One count of manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act, relating to the death of the complainant, CC, on 12 April 2017 at Toowoon Bay.
On 4 July 2022, the trial judge sentenced the Appellant to a period of 10 years imprisonment with a non-parole period of 7 years and 6 months, commencing on 15 September 2021. The following indicative sentences were provided in respect of each count: 1. Count 1: 3 years and 6 months. 2. Count 2: 2 years and 6 months, with a non-parole period of 1 year and 10 months. 3. Count 3: 7 years.
Each of the three counts related to procedures performed by the Appellant when conducting trade as an "extreme body modification artist" either at Transition Tattoo and Body Modification at Erina Fair, Erina (Transition), a business owned by the Appellant which was opened in June 2016, or as a body piercer at Tribal Urge, a tattoo studio in Newcastle. Through advertising and social media, the Appellant offered to perform body modification procedures and shared images and videos of body modification procedures he had previously performed. In addition to body modifications, the Appellant's business at Transition also included a barbershop, tattooing and piercing.
It was an agreed fact at trial that "body modification" means: "… 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."
By way of his profile on "Fetlife", a social networking website for those interested in fetishism, the Appellant described his body modification work as follows: "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." It was also an agreed fact at trial that the Appellant had performed a range of penetrating body modification procedures using surgical and other implements and injectable local anaesthetics including eyeball tattooing, nipple removal and reshaping, insertion of subdermal implants, Caesarean scar reduction, scarification and body piercing.

Notice of Appeal

By way of a Notice of Appeal filed on 17 February 2023, the Appellant sought leave to appeal from his conviction on all three counts on the following grounds: "Ground 1: The trial judge erred in ruling that the offence under section 45(1)(a) of the Crimes Act 1900 applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices. Ground 2: The trial judge erred in concluding that consent is no defence to a charge of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act 1900. Ground 3: The verdict in respect of Count 3 is unreasonable and cannot be supported having regard to the evidence Ground 4: The trial judge erred in finding that the appellant was criminally negligent in respect of his treatment of the deceased. Ground 6: The trial judge erred in failing to give herself a Shepherd direction that the Crown had the burden of proving beyond a reasonable doubt an essential fact in the Crown case, namely that septicaemia was a significant or substantial cause of death of the deceased, such direction having been requested on behalf of the appellant. Ground 7: The trial judge erred in adopting a lower standard of proof in finding that septicaemia was a significant or substantial cause of death of the deceased, concluding instead that the evidence was consistent with such a finding. Ground 8: The trial judge erred in finding that septicaemia was a significant or substantial cause of death in that the evidence was incapable of proving that fact beyond a reasonable doubt. Ground 9: The trial judge erred by failing to properly take into account the ingestion by the deceased of drugs in assessing whether or not septicaemia was a significant or substantial cause of her death."
The Appellant also sought leave to appeal from his sentence on the following grounds: "Ground 10: The sentencing judge erred when assessing the indicative sentence on count 1 in failing to adequately take into account the fact that the victim was an adult and had consented to the procedure, resulting in her Honour imposing an aggregate sentence that was manifestly excessive. Ground 11: The sentencing judge erred when assessing the indicative sentence on count 2 in failing to adequately take into account the fact that the victim had consented to the procedure and knew that the offender was not a medical practitioner, resulting in her Honour imposing an aggregate sentence that was manifestly excessive. Ground 12: The sentencing judge erred when assessing the indicative sentence on count 3 in failing to adequately take into account the fact that the deceased had consented to the procedure, that she had only become seriously ill after her last appointment with the appellant, and that there was a reasonable possibility that the intake of drugs by the deceased played a significant role in her sudden death and her failure to obtain medical treatment, resulting in her Honour imposing an aggregate sentence that was manifestly excessive. Ground 13: The sentencing judge erred in finding, in respect of Count 3, that CC was aware of the restricted social media post by the Appellant representing himself to have "full extensive surgical background of training" and in finding the Appellant's breach of trust was encouraged by this representation, resulting in her Honour imposing an indicative sentence in respect of Count 3 and an aggregate sentence that was manifestly excessive. Ground 14: The aggregate sentence imposed was manifestly excessive."

Ground 1

The first ground of appeal related to Count 1 on the indictment.
The facts were not in dispute and were agreed as follows: "19. The complainant in this matter is [AA]… She was 29 years old at the relevant time. 20. On 5 January 2015, [AA] attended Tribal Urge, where the [Appellant] undertook a procedure whereby he partially excised her labia minora (the right labia minora was completely excised; the anterior half of the labia minora was excised) … 21. The procedure was carried out with AA's consent. 22. The procedure was for a non-medical, cosmetic/ body modification purpose. 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. 24. [The Appellant] 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 NSW)."
Section 45 of the Crimes Act provides: "(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, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 21 years. (2) (Repealed) (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 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 into 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) This section applies only to acts occurring after the commencement of the section. (7) In this section - authorised professional means - (a) a registered midwife, or (b) a midwifery student, or (c) in relation to an operation performed in a place outside Australia - a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or (d) a medical student. medical practitioner, in relation to an operation performed in a place outside Australia, includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia. medical student means - (a) a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the medical profession, or (b) in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place. midwifery student means - (a) a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the midwifery profession, or (b) in relation to an operation performed in a place outside Australia - a person undergoing a course of training with a view to being authorised to be a midwife practitioner in that place. sexual reassignment procedure means a surgical procedure to alter the genital appearance of a person to the appearance (as nearly as practicable) of the opposite sex to the sex of the person."
The trial judge held that: "[106] 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. [107] 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. [108] I find that s 45(1) does not apply only to children nor only to ritualistic or religious flavoured principles. [109] 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." (Emphasis in original.)
The single argument attacking the Appellant's conviction for contravention of s 45(1) of the Crimes Act was that that section only applied to children and female genital mutilation, as defined in the Crimes Act, when performed as part of a ritualistic tradition, and that AA was not a child when the relevant procedure took place nor was the procedure performed by the Appellant traditional or ritualistic.
This argument turned entirely on the High Court's decision in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 (A2) and the identification of the statutory purpose of s 45(1) of the Crimes Act as being "to prohibit completely female genital mutilation practices injurious to female children" (emphasis added): at [56]; see also, for example, at [58]. A2 was not concerned with a case such as the present which involved a partial and complete excision of the labia minora - an act specifically proscribed by s 45(1)(a) - but rather with the concept of "otherwise mutilates" within the meaning of that section. Mr Tedeschi AM KC submitted, however, that it would be absurd to adopt a different approach to the different parts of the same subsection; in other words, the statutory purpose identified as underpinning the reference to "otherwise mutilates" in s 45(1) applied to the act of complete or partial excision of the labia minora also referred to in that subsection.
As will be seen, there were numerous further references in A2 to the purpose of the section being so confined. That limited purpose was expressly relied upon by Kiefel CJ and Keane J, with whom Nettle and Gordon JJ (at [148]) expressed their general agreement, to reject an argument that the majority's construction of the phrase "or otherwise mutilates" in s 45(1)(a) would mean that "a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals", would be criminalised: see A2 at [49], and [18]-[19] below.
The issue in A2 was not whether the section only applied to female genital mutilation of children. The complainants in that case, C1 and C2, were subjected to the impugned procedure (cutting or nicking a young girl's clitoris) when aged between six and eight. The issue in the case was whether that procedure fell within the meaning of the phrase "or otherwise mutilates" in s 45(1)(a) of the Crimes Act. This Court had held that it did not, on the basis that the term "mutilation" required demonstration of some injury or imperfection which had some permanent quality: A2 v The Queen [2018] NSWCCA 174 at [521]-[522].
By majority, the High Court reversed this Court's decision. Kiefel CJ and Keane J held that the word "mutilates" in its ordinary usage was displaced in order to give effect to the purpose of s 45, namely to prohibit the practice of female genital mutilation on female children in order to achieve its cessation, and that, so understood, the phrase "otherwise mutilates" was to be taken to refer to female genital mutilation in all its injurious forms: at [53]. Nettle and Gordon JJ held that it was not necessary to demonstrate that the physical injury lasted beyond the time it took for that immediate injury to heal or that there was any permanent disfigurement, alteration or loss of function, of the whole or any part of the labia majora, labia minora or clitoris: at [151]. Edelman J held that it referred to all actions including every form of practice of causing tissue damage to the genitals of female children: [171]-[173].
Although the question of the application of s 45(1) to procedures performed on adults (as opposed to children) was not in issue in A2, there were express references in the judgments of Kiefel CJ and Keane J and Edelman J to the purpose of s 45 in unqualified, apparently exhaustive terms. Kiefel CJ and Keane J referred to: "[44] … 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 that practice on female children. Its wider purpose may be taken to be its cessation. … [46] …The Bill which became the Act that introduced s 45, after all, was said by the Minister to address what amounts to child abuse and the FLC Report had said that female genital mutilation in all its injurious forms was child abuse as understood in child protection laws. … [53] The meaning to be given to "otherwise mutilates", as referable to practices falling within the umbrella term "female genital mutilation", does not involve any artificial or unexplained extension. There is no ambiguity as to its meaning after it is considered in its context and by reference to the mischief to which it is directed and its purposes. The word "mutilates" in its ordinary usage is simply displaced in order to give effect to the purpose of s 45, to prohibit the practice of female genital mutilation on female children in order to achieve its cessation. So understood, "otherwise mutilates" is to be taken to refer to female genital mutilation in all its injurious forms. … [56] A construction which gives a broader scope to s 45 is consistent with its wider purpose, to prohibit completely female genital mutilation practices injurious to female children. That purpose is consistent with Australia's obligations under the Convention on the Rights of the Child, to which the FLC Report drew attention." (Emphasis added.)
As noted in [14] above, one of the arguments advanced in the High Court was that, on the construction of the meaning of "mutilation" ultimately upheld by the majority, cosmetic procedures such as body piercing would be criminalised. Kiefel CJ and Keane J recorded and rejected this argument at [49] in the following terms: "The respondents also contended that if "otherwise mutilates" has the extended meaning provided by the term "female genital mutilation", s 45(1) would make it an offence to carry out a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals. The answer to the argument is that no such problem would arise if "otherwise mutilates" is taken to refer to practices to which female genital mutilation refers." (Emphasis added.)
Their Honours' reference to "practices" in this passage must be taken to be a reference back to [42] and [44] of their joint judgment. Paragraph [44] has already been noted. Paragraph [42] referred to the Family Law Council Report (Female Genital Mutilation, (June 1994)) (FLC Report) which had been referred to earlier in their Honours' judgment (at [21]-[24]) and which had also been referred to in the Second Reading Speech of the Bill which became the Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW) and by which s 45 was introduced. Kiefel CJ and Keane J said at [42] that: "The FLC Report used the term "female genital mutilation" as a collective name to refer to all ritual practices carried out on female children which had no medical benefit and involved tissue damage. It advised the Attorney-General that there was a need for special legislation to make it plain that female genital mutilation, in all its forms, should be an offence." (Emphasis added.)
Similarly, Edelman J referred to: "[171] … Properly characterised, the essential meaning of the practice of female genital mutilation captured by the words "otherwise mutilates" in s 45(1)(a) is all actions involving a practice of causing tissue damage to the genitals of female children. The purpose of s 45(1)(a) was to proscribe any forms of that practice. It was not to proscribe only some forms of the practice. Nor was it only to proscribe the particular forms of the practice that were best known in 1994. … [173] … Whatever the understanding of the Minister or others about the particular existing forms of the practice of female genital mutilation, and whether or not any new or unforeseen forms of the practice arise, the purpose of s 45(1)(a) was likewise intended to extend to every form of the practice of female genital mutilation, namely any actions which result in tissue damage to the genitals of female children. [174] … To conform with the legislative purpose, the prohibition on all forms of the practice of female genital mutilation must extend to all actions involving tissue damage to the genitals of female children." (Emphasis added.)
The argument advanced by Mr Tedeschi, who appeared on behalf of the Appellant, was quite simple. He pointed to s 33 of the Interpretation Act 1987 (NSW) (Interpretation Act) which requires a purposive effect to be given to the interpretation of New South Wales statutes and submitted that the purpose of s 45(1) of the Crimes Act was identified in the majority judgments of the High Court in A2, and that that purpose qualified the literal and unqualified language of the text. He submitted that the identified statutory purpose required a reading down of "otherwise mutilates". A variation of this argument is that the identification of the statutory purpose qualified the reference to "of another person" and "on another person" in s 45(1)(a) and (b) respectively, with those references being required to be read down to apply only to female children and (although this was not essential to his argument) female children whose genitals had been mutilated as part of a ritualistic ceremony or procedure.
As the complainant was not a child, it was submitted that s 45 did not apply and that the Appellant should be acquitted on the charge that he had contravened this section of the Crimes Act by performing an excision of the labia minora of AA.
Mr Tedeschi also submitted that, even if the references to female children in the majority judgments' identification of the purpose of s 45 was not strictly ratio decidendi, it was at the very least "seriously considered dicta" within the meaning of Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah) at [134] such that this Court, as an intermediate appellate court, was bound to apply it; see also Hill v Zuda Pty Limited (2022) 275 CLR 24; [2022] HCA 21 at [25].
A further argument advanced by Mr Tedeschi in support of his preferred construction was that, on the Crown's preferred construction and the ordinary literal meaning of s 45(1), any labiaplasty performed by a surgeon on an adult woman for only cosmetic reasons would be a criminal act and would not attract s 45(3). It was submitted that there was no support in the secondary materials for the section being given this broad effect in the case of pure cosmetic surgery on adult women.
The Director of Public Prosecutions submitted that the confinement of the operation of s 45(1) of the Crimes Act to female children formed no part of the ratio decidendi of A2 and that the references relied upon by Mr Tedeschi as identified above did not constitute "seriously considered dicta". The Director also submitted that there was no textual support for the confinement of the operation of the section to female children, and that there were a number of powerful textual indications against the construction urged on behalf of the Appellant. As to the further argument noted at [24] above, it was submitted that this was a matter that could be expected to be dealt with by the reasonable exercise of prosecutorial discretion, an answer that would be unlikely to be a source of comfort to cosmetic surgeons.
The Director also sought to draw on statements made by the Attorney General at the time of introducing the Bill which became the Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW) which amended the Crimes Act by introducing s 45A(1). That section provides that a "person is guilty of an offence if the person takes another person from the State, or arranges for another person to be taken from the State, with the intention of having female genital mutilation performed on the other person." In his Second Reading speech, the Attorney General said that: "The offence is not restricted to taking a child or arranging for a child to be taken from New South Wales; it will apply to adults as well… The existing female genital mutilation offence in New South Wales prohibits the female genital mutilation of women as well as girls and it would be inconsistent for the removal offence not to apply also to children and adults."

Consideration

We agree with the submission of the Director that there is no textual support for the confinement of the operation of s 45(1) of the Crimes Act to female children, and that there are at least seven powerful textual indications and arguments against the construction urged on behalf of the Appellant. These are as follows: 1. first, the Appellant's construction involves reading down the reference to "person" when second occurring in s 45(1) to a child but in so doing it would give the word "person" where there used a different meaning to the word "person" where first appearing. It was not suggested that the first reference to person could or should be read down. To do so would have been a nonsense and confined the operation of the section to female genital mutilation performed by children on children. Affording a different meaning to the same word within a single section of an Act violates a well-established and sound principle of statutory construction (Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41, Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10; [1981] HCA 40), albeit one that must yield to context: Mc-Graw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643; [1979] HCA 19; 2. second, insofar as the interpretation contended for sought to confine s 45 to a ritualistic/traditional context, the construction involves the reading in to the section of words of limitation; 3. third, while noting that Kiefel CJ and Keane J at [51] of A2 reason that s 45(3) is "properly read as a clarification inserted for the avoidance of doubt, and not as an exception to s 45(1)", it is inherently unlikely that s 45 would be intended to refer, and be confined, to acts of female genital mutilation performed on children when one has regard to the defences to s 45(1) as stated in s 45(3) which provides as follows: "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 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." These defences and, in particular, sub-s (3)(b), plainly are intended to apply or at least extend to adults (as well as, in some limited cases, children of child bearing age); 1. fourth, also rendered otiose by the Appellant's construction is s 45(5) which provides that consent is no defence to an act contravening s 45(1). If s 45(1) is confined to children, as a general rule, they will lack legal capacity to give consent; 2. fifth, had the legislature intended to confine the application of s 45 to acts of female genital mutilation performed on children, one would have expected that not only to have been stated but also that a definition of "child" or "children" would be supplied, especially in circumstances where the Crimes Act identifies a number of offences against children and the definition of a child by reference to his or her age is not uniform across those offences: for example, a "child" is defined as a person under 16 years of age by ss 43A(1), 66DF, 66EB(1) and 91FA of the Crimes Act but as a person under 18 years of age by ss 61AA(6) and 93AC(1) of the Crimes Act. As the Director submitted, "the Parliament is astute to identify particular offences that apply to children of a particular age when it wishes to do so"; 3. sixth, and relatedly, one would not lightly attribute an intention to the legislature to create criminal liability but to leave a detail as to the age of the children to which the section was apparently intended to apply undefined and ambiguous given the diverse definitions of children and the age when that status is stated to cease elsewhere in the Crimes Act; 4. seventh, as Mr Tedeschi accepted, the secondary materials such as the FLC Report referred to in the Second Reading Speech were not confined to concerns about female genital mutilation performed solely on children. For example, although the FLC Report acknowledges that the majority of female genital mutilation concerns children, the Council in various places, including at [6.37] and [6.41], refers to the need to protect and support "women and children". The FLC Report (at [2.13]-[2.14]) also refers to cultural practices involving female genital mutilation performed on adult women.
We do not place any weight on the statements made by the Attorney General in his Second Reading speech which led to the 2013 amendments and the introduction of s 45A of the Crimes Act. What was then said cannot rationally inform the proper interpretation of a statutory provision introduced at an earlier time by an earlier Parliament, even in circumstances where an immaterial amendment to the maximum penalty was also made to s 45 by the same Bill.
But for the decision in A2, for the seven reasons advanced in [27] above, we would have been inclined to reject the argument advanced on behalf of the Appellant, namely that s 45(1) should be confined to the proscribed acts of mutilation, including excision of the labia minora, performed on female children as a result of ritualistic practices.
To the extent that members of the majority in A2 referred to the purpose of s 45 as being for the benefit and protection of children, such references were unsurprising in the context of the facts of that case which involved children of between six and eight years of age. That having been said, while we accept that the question of the scope of the application of s 45(1) of the Crimes Act and the meaning of "of another person" and "on another person" in s 45(1)(a) and (b) formed no part of the ratio decidendi in A2, what was said in unqualified language as to the purpose of s 45, in the various passages to which we have referred above, amounts to "seriously considered dicta" within the meaning of Farah. We reject the Director's respectful submission to the contrary. In particular, the reliance by Kiefel CJ and Keane J, with whom Nettle and Gordon JJ agreed, upon the purpose of the Act and the "practices" which it was concerned to criminalise in order to dismiss an argument developed on behalf of A2 in relation to adult body piercing (see [18]-[19] above), lent added force to the dicta relied upon by Mr Tedeschi.
The question of statutory interpretation thus becomes one of whether the literal and relevantly unconfined (in terms of scope) meaning of s 45(1) should be read down by reference to what a majority of the High Court identified in seriously considered dicta was the purpose of s 45(1) of the Crimes Act.
We consider that authority dictates that it should.
Section 33 of the Interpretation Act, upon which heavy reliance is placed, provides: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, 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."
This important statutory provision accords with many statements in what might be described as the common law of statutory interpretation. In Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [29]-[41], Bell P (as the Chief Justice then was), with the agreement of Leeming JA and Emmett AJA, explored the role of purpose in statutory construction, referring to the observations of Kiefel CJ, Nettle and Gordon J in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (SZTAL) that: "Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (Emphasis added.)
Bell P noted at [30] that statutory context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy, referring to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (CIC Insurance); Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324]; and SZTAL at [14]. His Honour then noted at [33] that "emphasis on the importance of context in statutory interpretation at least overlaps with and reinforces the need for purposive construction" which was "not so much a matter of "constructional choice" as legislative fiat."
Bell P continued (at [34]-[39]) that: "Section 33 [of the Interpretation Act] recognises that a statutory purpose or object may not always be found in the express terms of the statute being construed. As McHugh J observed in Saraswati v The Queen (1991) 172 CLR 1 at 21; [1991] HCA 21: "Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes." Some statutes will identify the "Objects of the Act" or of a Part or Division of the Act. Others will explicitly spell out the purpose of the Act. These are not "exercise[s] in apologetics" but may give practical content to particular terms used in a statute which may otherwise be elastic in their meaning: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5]. It will not, however, always be easy to identify or discern the purpose of any given statute or statutory provision, and care must be taken against ascribing an overly broad purpose based upon a priori assumptions as to the legislation's intended reach: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [28]. Furthermore, a statute may have multiple purposes and, as enacted, may (and often will) give effect to political and policy compromises such that the legislative purpose, whatever may have been intended originally, is obscured: see, for example, Australian Rail Track Corporation Ltd v Dollisson [2020] NSWCA 58 at [31]. … The purpose of a statute or statutory provision, or the "mischief" which a statute is intended to address, may sometimes also be identified in an explanatory memorandum to a parliamentary Bill or in the second reading speech although these sources of potential enlightenment, particularly the explanatory memorandum, are frequently of limited utility in this regard, often being little more than summaries or paraphrases of provisions of the Bill. Although the occasions when such assistance will in fact be given have been said to be "rare", they nevertheless sometimes present themselves: Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573 at 605; [2011] HCA 10 at [86]."
In A2 itself, Kiefel CJ and Keane J, after quoting the observation in CIC Insurance at 408, that "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance", went on to say that "[w]hen a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning": at [37].
In the present case, the statutory purpose of s 45(1) has authoritatively been identified by way of seriously considered dicta in the various majority judgments in A2. That being so, and consistent with the important role of purpose in statutory interpretation as emphasised in the authorities cited above, ground 1 of the appeal must succeed and the Appellant's conviction on Count 1 of the indictment must be set aside and a verdict of acquittal entered on this count in favour of the Appellant.

Ground 2

The second ground of appeal related to Count 2 on the indictment.
The agreed facts in respect of Count 2 were as follows: "25. The complainant in this matter is [BB]. [BB] met the [Appellant] in July 2016 through … her husband's cousin [who] was in a relationship with the [Appellant] at the time. On an occasion in July 2016, after she had met the [Appellant] a few times, [BB] was at Transitions Erina getting her sons' haircut. Whilst she was waiting, she spoke with the [Appellant], who told her about the procedures he had been doing. 26. [BB] arranged with the [Appellant] that the [Appellant] would perform a procedure on her to remove skin from her abdominal area. 27. [BB] booked the procedure for 7 November 2016. BB had to cancel the 7 November appointment, but rebooked for 10.00am on Sunday 13 November 2016. 28. On 13 November [BB] attended the appointment with her husband … and the Appellant carried out the procedure on [BB]."
The issue of principle raised by the second ground of appeal is cast into stark relief when it is borne in mind, as submitted by Mr Tedeschi, that BB, herself a trained nurse, "knew exactly what it was that she was asking the Appellant to do and what was done was exactly what she had asked to be done." Or, as it was also put, "the grievous bodily harm was precisely what the complainant willed to be done".
At PJ [258]-[259], the trial judge found the following with respect to the procedure conducted by the Appellant on BB: "The [Appellant] used a scalpel to cut through the skin into the flesh of the complainant in an elliptical form approximately 20 centimetres long and 6 centimetres wide. The accused removed the skin and flesh described as fatty tissue from the abdomen area of the complainant. The accused then sutured the wound with multiple simple nylon sutures. The wound was dressed… There was in summary a significantly adverse medical outcome requiring emergency corrective surgery. Part of the cause of this adverse medical outcome was a hole in the abdominal fascia caused I find by the accused imbedding the scalpel in the complainant's fatty tissue after cutting into it… The result of the repair … [is] significant scarring over about a 20 centimetre width of the abdomen and approximately 1 centimetre wide in a dark colour. It is very noticeable. I have also observed that after the [emergency corrective surgery] the scar is hip to hip but thin and I am told that eventually it will be very faint."
The trial judge found that the procedure performed on BB had resulted in injury which amounted to grievous bodily harm within the definition of that phrase in s 4 of the Crimes Act: PJ [266] and [272]. This was because the procedure involved "a really serious cutting of [BB's] skin and flesh" and produced a significant scar and harm requiring a hospital stay and medical intervention. The fact that the "original scar was removed and replaced with a more acceptable scar" was held not to detract from the seriousness of the bodily harm that was occasioned by the procedure: PJ [270].
With respect to intent, the trial judge at PJ [278] found the following: "It was an act that was inherently dangerous… The accused voluntarily performed the procedure with a scalpel. He removed a portion of the complainant's skin and flesh, as he said he would do. There is no other conclusion to draw from the evidence other than that he intended his actions…The fact that the result was much worse than he hoped for does not assist him…"
Importantly, and as noted in [40] above, it was also not in dispute that BB consented to the procedure the subject of Count 2 in the broad sense in which consent is used in the criminal law, as explained in Rogers v Whittaker (1992) 175 CLR 479 at 490; [1992] HCA 58. In Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 at [35], French CJ, Crennan, Bell and Keane JJ confirmed that: "The nature of the consent to a medical procedure that is required in order to negative the offence of battery is described in the joint reasons in Rogers v Whitaker. It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature." See also R v Richardson [1999] QB 444 (Richardson) at 450 where it was said that "the concept of informed consent has no place in the criminal law."
After considering several authorities on the point, including the English cases of R v Brown [1994] 1 AC 212 (Brown), R v M(B) [2019] QB 1; [2018] EWCA Crim 560 (M(B)), McCarthy v R [2019] EWCA Crim 2202 (McCarthy) and Richardson, Victorian decisions of R v Stein (2007) 18 VR 376; [2007] VSCA 300 (Stein) and R v McIntosh [1999] VSC 358 (McIntosh) as well as Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218; [1992] HCA 15 (Marion's Case), the trial judge held that consent was not available as a defence to a charge of grievous bodily harm contrary to s 33(1) of the Crimes Act. Her Honour reasoned as follows: "[342] The accused in this case undertook what was in effect a quasi-medical procedure. He did so in unhygienic circumstance and with little or no regard for any proper informed consent nor any or adequate after care. The complainant was subjected to the risk of infection, bungled or poor surgery, and an inability to deal with the immediate complications. [343] There was no public interest in the provision of the services provided by the accused. I respectfully concur with the observations of the Court of Appeal in [M(B)] that the personal autonomy of customers does not provide the defendant with the justification for removing body modification from the ambit of the law of assault. There is no good reason why body modification should be placed in a special category of exemption from the general rule that consent of an individual to injury provides no defence to the person who inflicted that injury if the violence causes actual bodily harm or more serious injury. [344] Consent is in the circumstances of this case not a defence. The accused intended harm. The harm amounted to grievous bodily harm. For the reasons therefore given above I therefore find the accused guilty of the charge that on 13 November 2016 he caused grievous bodily harm to BB with intent to cause grievous bodily harm as outlined in count 2."
On appeal, Mr Tedeschi sought to build his case on a philosophical platform of autonomy including bodily autonomy and the social disutility in criminalising injury to a person's body to which that person has consented in the criminal law sense. As a building block of his argument, he referred to observations made by McHugh J in Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 at [114] to the effect that it was one of the central tenets of the common law that a person is legally responsible for his or her choices, with the corollary of that responsibility being said to be that a person is entitled to make those choices for him or herself and without unjustifiable interference from others (including the State). It is important to note, however, that McHugh J went on to note that complete autonomy was not possible in any organised society: at [114].
Mr Tedeschi then referred, in oral argument, to Marion's Case and the reference in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ to the famous dictum of Cardozo J in Schloendorff v Society of New York Hospital 105 N.E. 92 (NY 1914) (Schloendorff) at 93, that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body…". Mr Tedeschi submitted that "principle demands to the greatest extent possible that an adult of sound mind ought to have the right to decide what happens to their body" and that "this right ought to include the choice to have a body modification procedure performed by whomever they will to perform it."
On this platform, the philosophical argument was advanced that it was not for the common law to interfere with any procedure being performed on a person's body, provided that that person consented to it in the broad sense of consent as understood in the criminal law. It was put that it was a matter for Parliament to impair or interfere with any such autonomy, and not for the Court to impose its own assessment as to the existence or lack of any public benefit in consensual body modification, even that which entails what would otherwise amount not only to actual bodily harm, but grievous bodily harm. Mr Tedeschi contended that support for this approach (by which BB's consent to the procedure performed on her would have provided a defence to an act of grievous bodily harm) was supplied at a very broad level by the majority's embrace in Marion's Case of Cardozo J's dicta in Schloendorff, as well as by the minority judgment of Lord Mustill in Brown and the decision of the New Zealand Court of Appeal in R v Lee [2006] 3 NZLR 42 (Lee).
At a less philosophical level, the submission was that: "What the Crown is asking this Court to do is to in effect prevent persons from having body modifications done by anybody, other than registered medical practitioners, who of course would not be prepared to do such procedures in the first place, particularly procedures such as the insertion of a silicon implant under the skin or scarification or tongue splitting or numerous other body modifications that would never be performed by a medical practitioner. The effect of the approach sought by the Crown is that all of these procedures would amount to criminal offences because the consent of the client could never operate as a defence to a charge of wounding or grievous bodily harm or actual bodily harm. It is submitted that this approach does not place sufficient weight on the importance of the principle of bodily autonomy or inviolability and does not accord with the values of a modern liberal society." (Emphasis added.)
As often occurs in the course of appellate argument, Mr Tedeschi's argument became further refined by the stage of his oral submissions in reply. His ultimate submission was that it should be left to Parliament to legislate in this area except where there is an attempt to kill or a serious risk of death. Other than in those two circumstances, the submission ran that consent to the infliction of bodily injury, even of a serious kind falling within the ambit of grievous bodily harm, should be permitted unless overridden by statute.
It was submitted for the Crown, on the other hand, that the trial judge correctly directed herself in accordance with the common law of Australia, Canada and the United Kingdom, namely that a person cannot consent to the infliction of grievous bodily harm other than in certain exceptional instances of which the present case was not an example nor was it analogous to any accepted exception. It was further and correctly submitted, moreover, that this was not simply the view of the majority in Brown but also, in relation to cases of consensual infliction of grievous bodily harm, the view of Lord Mustill and Lord Slynn who delivered dissenting judgments. The Director also submitted that personal bodily autonomy was not an absolute value in the law, as the case law recognised.
The question whether consent is available as a defence to a charge of infliction of actual and even grievous bodily harm has yielded much academic, philosophical and jurisprudential discussion: see, for example, B Bix "Assault, Sado-masochism and Consent" (1993) 109 Law Quarterly Review 540; D Kell, "Social Disutility and the Law of Consent" (1994) 14 Oxford Journal of Legal Studies 121 (Kell), K J Arenson, "Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen" (2014) 33(2) The University of Tasmania Law Review 300 (Arenson) and A J Watkins, "Score and Pierce: Crimes of Fashion? Body Alteration and Consent to Assault" (1998) 28 Victoria University of Wellington Law Review 371. Dr Kell's article is of particular value for its close analysis of the majority and minority judgments of the House of Lords in Brown, to which we will return. The question also attracted the attention of the Law Commission for England and Wales: Consent in the Criminal Law: A Consultation Paper (1995), whose proposal (at [4.16]) that the consensual infliction of injury that falls short of seriously disabling injury should in general be lawful, even if intentional, was never adopted by the legislature.
The arguments developed by both the Director and Mr Tedeschi involved a detailed analysis of the leading case law from common law jurisdictions. That case law is best tracked through chronologically. At the outset, we make it plain that our consideration is confined to the question of whether consent lies as a defence to a count of infliction of grievous bodily harm. The question whether a person may consent to the infliction of actual bodily harm does not arise for determination.
In R v Coney (1882) 8 QB 534 (Coney), a case reserved by the Chairman of the Quarter Sessions for the County of Berkshire, the defendants were consenting participants in bare-knuckle prize-fighting. It was held that, despite consent being given, the fighting was unlawful and constituted assault occasioning actual bodily harm. Cave J (at 539) held that: "The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way…".
Matthew J (at 546-547) noted the contention that the consent of the contestants to fight meant that there could not be an assault. Agreeing with Cave J, Matthew J said that: "The contention really meant that the agreement of the men to fight rendered the contest lawful and innocent. There is, however, abundant authority for saying that no consent can render that innocent which is in fact dangerous. This is as true of a prize-fight, as it is of a duel. The fists of trained pugilists are dangerous weapons which they are not at liberty to use against each other."
Stephen J also agreed with Cave J but his reasoning was arguably more nuanced involving an assessment as to whether particular conduct was injurious to the public, an inquiry which involved questions of degree (at 549): "The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent these blows from being assaults… In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances."
Hawkins J, in the same case, decided the matter on the basis that the prize-fighting in question amounted to or was likely to amount to a breach of the peace (at 553-554). Lord Coleridge CJ's reasoning was to similar effect focusing on the public consequences of a prize-fight and the Crown's right to and interest in protecting the peace not being able to be overridden by the private consent of the contestants (at 567).
R v Donovan [1934] 2 KB 498 (Donovan) concerned the caning of a 17 year old girl by the Appellant for the purposes of sexual gratification. In allowing the appeal and holding that the trial judge erred in directing the jury that whether there was consent was the vital issue in the case, Swift J held (at 507): "If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected… As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial."
An important Australian authority is Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 (Pallante) in which the plaintiff sought to recover damages for negligence from the first defendant, whom the plaintiff alleged conducted a boxing fight in which he received injuries affecting his eyesight, and also the matchmaker and referee, his trainer and the promoter of the fight. In dismissing applications by the defendants to have the plaintiff's action dismissed as an abuse of process, McInerney J held that (at 340): "The courts have dealt with the question of the consent of the person injured by saying that the consent of the person struck to a blow struck in anger or a blow which is likely to do or is intended to do bodily harm is immaterial, so that in such cases there is an assault: see [Coney] in the judgment of Cave J, at p. 539. The consent of the person injured is disregarded because the infliction of the blow is regarded as injurious to the public as well as to the person injured: see [Coney] at p. 549, per Stephen J, or because it is not in the power of any man to give an effective consent to that which amounts to, or has a direct tendency to create, a breach of the peace: see [Coney], at p. 533, per Hawkins J. It is easy to understand the proposition that if the harm to which consent is alleged to have been given is really grievous as, for instance, in a case of maiming, the consent should be treated as nugatory: see, for instance, Stephen's Digest of Criminal Law (1926) 7th ed., article 290. In Cross and Jones' "An Introduction to Criminal Law", 7th ed., p. 40, it is suggested as a reason for this conclusion that the injured person is likely to become the charge of society. This may be a good enough reason, though I would think it is not the primary reason. The primary reason, I would think, is that, as a general proposition, it injures society if a person is allowed to consent to the infliction on himself of such a degree of serious physical injury." (Emphasis added.)
The next significant decision in terms of chronological sequence was that of the Court of Appeal of England and Wales in Attorney-General's Reference (No 6 of 1980) [1981] QB 715 (Attorney-General's Reference (No 6)) which involved an 18 year old boy who agreed to fight the victim, a 17 year old, on a public street. The fight resulted in actual bodily harm to the victim and the 18 year old boy was charged with assault. In considering whether an assailant is guilty of an assault where the victim consented to that assault, Lord Lane CJ, delivering the judgment of the Court, reasoned as follows (at 718-719): "We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty. But the cases show that the courts will make an exception to this principle where the public interest requires… Bearing in mind the various cases and the views of the text book writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise? … The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest…". (Emphasis added.)
In R v Raabe [1985] 1 Qd R 115 (Raabe), the appellant was convicted of assault occasioning bodily harm after a fight in which he alleged the complainant was a willing party. Connolly J held that consent may only be given to assault which is not intended to and does not cause bodily harm and that consent is not a defence to a charge of assault occasioning bodily harm: at 117-118. Both Donovan and Attorney-General's Reference (No 6) were referred to, although the decision in Raabe was ultimately focussed on the operation of the Criminal Code 1899 (QLD).
The Supreme Court of Canada addressed the question in R v Jobidon [1991] 2 SCR 714 (Jobidon). This was a case in which the accused was charged with manslaughter by an unlawful act, namely an assault, following an allegedly consensual fight in the carpark of a public bar. Gonthier J (with whom La Forest, L'Heureux-Dube, Cory and Iacobucci JJ agreed) held (at 766-767) that: "The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl… This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case-by-case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it. Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely-given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile… There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, insofar as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wide group of people as well. This is a far cry from the situation presented in this appeal, where Jobidon's sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated. Fist fights are worlds apart from these other forms of conduct." (Emphasis added.)
One sees in Jobidon the Supreme Court of Canada expressly adverting to considerations of positive social value or benefit as a criterion or discrimen by reference to which consent to what would or may otherwise amount to an assault would operate as a defence. Even then, however, Gonthier J appeared to consider the position settled in cases involving the intentional infliction of force causing serious hurt or non-trivial bodily harm.
In so concluding, his Honour reasoned (at 765-766) that: "Some may see limiting the freedom of an adult to consent to applications of force in a fist fight as unduly paternalistic; a violation of individual self-rule. Yet while that view may commend itself to some, those persons cannot reasonably claim that the law does not know such limitations. All criminal law is "paternalistic" to some degree - top-down guidance is inherent in any prohibitive rule. That the common law has developed a strong resistance to recognizing the validity of consent to intentional applications of force in fist fights and brawls is merely one instance of the criminal law's concern that Canadian citizens treat each other humanely and with respect."
Marion's Case, decided in 1992, concerned whether the parents of a 14 year old girl who lived with various intellectual and physical disabilities could legally authorise a sterilisation procedure in respect of their child. This involved a question of interpretation of s 63(1) of the Family Law Act 1975 (Cth). The majority judgment of the High Court referred to Attorney-General's Reference (No 6) in the following passage (at 233): "Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralizing effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability… Attorney-General's Reference [No 6 of 1980] held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm. The rationale for this exception appears to rest in the idea that some harms involve public, not just personal interests." (Footnotes omitted.) In addition to Attorney-General's Reference (No 6), the majority in Marion's Case also referred to Coney and Donovan which were also relied upon by the majority in Brown. And, as noted at [48] above, their Honours also referred (at 234) to what they described as "the principle of personal inviolability" associated with the dictum of Cardozo J in Schloendorff.
Brennan J (at 267) citing Pallante, expressly stated that: "The law accepts that a person who is sui juris can consent to what would otherwise amount to an assault or trespass without impairment of dignity, although the interest of society in the physical integrity of its members precludes the law from giving effect to a consent to the doing of grievous harm."
McHugh J (who wrote separately but agreed with the majority in Marion's Case), also cited Attorney-General's Reference (No 6) in support of the following proposition (at 309): "It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a "good reason". But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies." (Emphasis added.)
The seminal decision of the House of Lords in Brown, decided in 1993, concerned the infliction of injury during extreme sadomasochistic sex involving acts of violence against willing and enthusiastic passive participants which took place in rooms often equipped as torture chambers. The activity occurred in private and with safeguards including sterilised instruments and the use of codewords or safewords to signal the withdrawal of consent. The participants were charged with assault occasioning actual bodily harm contrary to s 47 of the Offences against the Person Act 1861 (UK).
A significant aspect of this decision, and a point of departure from the earlier English authorities already referred to, was its particular moral setting or context. Unlike earlier cases, the facts of Brown did not involve any potential breaches of the peace to which consensual fighting might be thought to have given rise. Rather, the broad distinction between the majority and minority positions in Brown was, at the very least, influenced by moral judgments and differing attitudes towards the proper role for the courts in the making of such moral assessments.
A majority of the House of Lords held that, although the absence of consent is a requisite element of a charge for mere assault, it was not in the public interest for a person to wound or cause actual bodily harm to another for no good reason such that, in the absence of such a reason, a victim's consent will provide no defence to a charge of actual bodily harm. It was further held that the satisfaction of sadomasochistic desires was not a sufficiently good reason, but that activities such as tattooing, ear-piercing and violent sports like boxing were established exceptions to the default position that consent will provide no defence to a charge of actual bodily harm. Mr Tedeschi submitted that the approach by the majority judges in Brown to fully consensual acts of sadomasochism by willing participants in a private place was paternalistic and, at least as viewed some 30 years after that decision, out of step with contemporary thinking as to bodily autonomy and conceptions of personal self-determination.
Forming part of the majority, Lord Templeman held at 231: "In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities."
Lord Jauncey, who also formed part of the majority in Brown, reasoned (at 244-245) that: "It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line but there was disagreement as to whether all offences against section 20 of the Act of 1861 should be above the line or only those resulting in grievous bodily harm. The four English cases to which I have referred were not concerned with the distinction between the various types of assault and did not therefore have to address the problem raised in these appeals. However it does appear that in [Donovan], [Attorney-General's Reference (No. 6)], and Reg. v. Boyea, The Times, 6 February 1992, the infliction of actual bodily harm was considered to be sufficient to negative any consent. Indeed in Donovan and Boyea such injuries as were sustained by the two women could not have been described as in any way serious. Cave J. in [Coney], also appeared to take the same view. On the other hand, Stephen J. in Coney appeared to consider that it required serious danger to life and limb to negative consent, a view which broadly accords with the passage in his digest to which I have already referred. A similar view was expressed by McInerney J. in the Supreme Court of Victoria in [Pallante]. I prefer the reasoning of Cave J. in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the Offences against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of section 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. There is nothing in sections 20 and 47 of the Act of 1861 to suggest that consent is either an essential ingredient of the offences or a defence thereto. I would … dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer." (Emphasis added.)
Lord Lowry, the third member of the majority, saw the matter squarely as one of morality, describing the consensual activities of the accused as wishing "to satisfy a perverted and depraved sexual desire" and concluding that "[s]ado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society": at 255.
If consent was no defence to a charge of infliction of actual bodily harm, as the majority held, the position with regard to more serious bodily harm or "grievous bodily harm" is a fortiori.
Significantly for present purposes, Lord Slynn, although dissenting in the result in Brown, held that consent was not available as a defence to a charge of grievous bodily harm. His Lordship (at 279-280) stated: "It is "inherent in the conception of assault and battery that the victim does not consent:" Glanville Williams, "Consent and Public Policy" [1962] Crim.L.R. 74, 75. Secondly, consent must be full and free and must be as to the actual level of force used or pain inflicted. Thirdly, there exist areas where the law disregards the victim's consent even where that consent is freely and fully given. These areas may relate to the person (e.g. a child); they may relate to the place (e.g. in public); they may relate to the nature of the harm done. It is the latter which is in issue in the present case. I accept that consent cannot be said simply to be a defence to any act which one person does to another. A line has to be drawn as to what can and as to what cannot be the subject of consent. In this regard it is relevant to recall what was said by Stephen J. in [Coney], 549. … I do not think a line can simply be drawn between "maiming" and death on the one hand and everything else on the other hand. The rationale for negating consent when maiming occurred has gone. It is, however, possible to draw the line, and the line should be drawn, between really serious injury on the one hand and less serious injuries on the other. I do not accept that it is right to take common assault as the sole category of assaults to which consent can be a defence and to deny that defence in respect of all other injuries. In the first place the range of injuries which can fall within "actual bodily harm" is wide - the description of two beatings in the present case show that one is much more substantial than the other. Further, the same is true of wounding where the test is whether the skin is broken and where it can be more or less serious. I can see no significant reason for refusing consent as a defence for the lesser of these cases of actual bodily harm and wounding. If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. Grievous bodily harm I accept to be different by analogy with and as an extension of the old cases on maiming. Accordingly, I accept that other than for cases of grievous bodily harm or death, consent can be a defence." (Emphasis added.) The portions of Lord Slynn's judgment which have been emphasised do not support the Appellant's argument in the present case as his Lordship would have "drawn the line" at cases of grievous bodily harm.
Separately to be noted is the minority judgment in Brown of Lord Mustill. His Lordship's different philosophical approach to the question, being a clear preference to leave to the legislature the assessment of the social utility or disutility of the conduct involved, did not extend to cases of the consensual infliction of grievous bodily harm. At 272-273, Lord Mustill observed: "… the decks are clear for the House to tackle completely anew the question whether the public interest requires section 47 of the Act of 1861 to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit. … [T]he issue before the House is not whether the appellants' conduct is morally right, but whether it is properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I do not invite your Lordships' House to endorse it as morally acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants' conduct was wrong, would reply "Yes, repulsively wrong," I would at the same time assert that this does not in itself mean that the prosecution of the appellants under sections 20 and 47 of the Offences against the Person Act 1861 is well founded." (Emphasis added.)
Apparent doctrinal coherence which the majority judgments in Brown might have been thought to have secured was dashed in R v Wilson [1997] QB 47 (Wilson) in which a husband had been asked by his wife to brand his initials on her buttocks with a hot knife. He was then charged with and convicted of assault occasioning actual bodily harm. In upholding the appeal and quashing the conviction, the Court of Appeal of England and Wales (at 50) held that: "We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either [Donovan] or [Brown]: Mrs. Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant's desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery. In our judgment [Brown] is not authority for the proposition that consent is no defence to a charge under section 47 of the Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in [Brown] related only to a "sado-masochistic encounter." However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition. The speeches of Lord Templeman, at p. 231, Lord Jauncey of Tullichettle, at p. 245, and the dissenting speech of Lord Slynn of Hadley, at p. 277, all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under section 47, albeit that actual bodily harm is deliberately inflicted. For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else. We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter. Does public policy or the public interest demand that the appellant's activity should be visited by the sanctions of the criminal law? The majority in [Brown] clearly took the view that such considerations were relevant. If that is so, then we are firmly of the opinion that it is not in the public interest that activities such as the appellant's in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution." In this last sentence, one can discern the reluctance of the Court of Appeal to intrude into consensual activity of individuals involving private and personal choices about their own bodies. That, itself, involved a moral judgment which respected personal autonomy and bodily self-determination.
In Lee, a 2006 decision of the New Zealand Court of Appeal, it was held that the majority approach in Brown did not represent the law in New Zealand. Instead, in considering whether consent was an available defence to manslaughter where the death had occurred in the course of an exorcism which involved sitting on the deceased's chest and applying pressure to her neck, their Honours expressed the view that "a high value should be placed on personal autonomy": at [300]. That observation was made in the context of the statement of a rule "for all levels of intentional infliction of harm".
In delivering the judgment of the Court, Glazebrook J said that: "[312] The question of consent falls to be considered in accordance with the common law rules, apart from ss 61 and 61A [of the Crimes Act 1961 (NZ)] dealing with surgical operations and situations covered by s 63, which provides that no person can consent to the (intentional) infliction of death upon himself or herself including (probably) murder as defined in s 167(b), (c) and (d). [313] The test in New Zealand at common law is not a results-based test. If injury is not intended and there is no reckless disregard for the safety of others, then consent is a complete defence to any charge of assault, provided what occurred comes within the scope of the consent. [314] Where injury was intended or where the perpetrator was reckless, consent is still a complete defence, provided what occurred comes within the scope of the consent, except in the situations set out below. [315] Apart from sparring matches or playfights and organised matches conducted with a referee and according to established rules, consent is not a defence in relation to fighting. Those involved in sparring matches and playfights must not be acting in reckless disregard for the safety of others and must not intend to cause bodily injury for consent to be operative. [316] Where grievous bodily harm is intended, public policy factors may require the Judge to withdraw the defence of consent from the jury. The same applies where a perpetrator acts in reckless disregard for the safety of others. When deciding whether consent should be withdrawn as a defence on public policy grounds in such situations the Judge should take into account the right to personal autonomy, the social utility (or otherwise) of the activity, the level of seriousness of the injury intended or risked, the level of risk of such injury, the rationality of any consent or belief in consent, and any other relevant factors in the particular case. [317] Under these principles, consent must be left to the jury if there is an evidential basis for it, except where s 63 applies, in cases of fighting, and in cases where grievous bodily harm is intended or where the perpetrator acts in reckless disregard for the safety of others and the Judge withdraws the defence on public policy grounds. Any withdrawal of the defence will usually be a conditional withdrawal, as it will be for the jury to decide whether the Crown has proved intent to inflict grievous bodily harm or that the perpetrator has acted in reckless disregard for the safety of others. In any particular case, there may also be other factual prerequisites to the withdrawal of consent as a defence which may need to be decided by the jury. [318] Where consent is left to the jury, it will be for the jury to decide whether the Crown has proved both lack of consent (either explicit or implied) and lack of honest belief in consent or whether the Crown has proved that what happened does not come within the scope of any consent and that the perpetrator did not honestly believe that it did…" (Emphasis added.)
One can see, especially in [316] of the judgment in Lee, the origins of the argument based on personal autonomy that lay at the heart of the Appellant's contentions in the present case.
Although in Lee, the Court said (at [261]) that: "We are not legislators or law reformers, and so we do not have the ability to articulate a theory of consent based on a full consideration of the appropriate philosophical underpinnings. We must work in accordance with the common law method and reason by analogy with decided cases, although there is of course room for the development of the law. The statutory context will also be relevant, given that the defence is to a crime provided for by statute." the decision in Lee represents a radical departure from the prevailing state of the law in Australia, Canada and England, even noting the tension between Brown and the Court of Appeal's decision in Wilson. It contemplates that consent may be a defence to the infliction of grievous bodily harm in certain circumstances (beyond the established exceptions such as boxing and surgery). Not even Lord Mustill's dissent in Brown went so far.
While Lee ultimately eschewed a line-drawing approach, there is considerable force in our opinion in what the Court of Appeal said at [301]: "In cases where grievous bodily harm is intended, however, there may be policy reasons for criminalising such conduct despite consent, even on the test we propose. Excluding consent for the intentional infliction of grievous bodily harm can be justified on a similar basis to the justification for the common law rule as to maim - that is, that the persons on whom grievous bodily harm is inflicted may become a charge on society. In addition, there are the considerations referred to by Gonthier J in Jobidon … Finally, as people, absent mental impairment or illness or duress, do not generally consent to the infliction of harm of such magnitude, there will also always be concerns about the reality of any supposed consent and whether it is truly voluntary (see the discussion in Feinberg, The Moral Limits of the Criminal Law, Volume 3: "Harm to Self" (1986), pp 98 - 162 and in "Harmless Wrongdoing", pp 126, 133 and pp 328 - 331). There may similarly be questions as to the rationality of any belief in consent."
Like Brown, the facts of Stein, a 2007 decision of the Victorian Court of Appeal, concerned consensual sadomasochistic sexual activity but, different to Brown, the accused caused the death of the victim by the act of gagging. At [20], Kellam JA, with whom Vincent and Neave JJA agreed, held that: "The majority opinion in R v Brown established the principle that consent is irrelevant to a charge of assault occasioning actual bodily harm in circumstances whereby the bodily harm is caused in the course of sado-masochistic sexual activity."
Kellam JA went on to consider the ex tempore decision of McIntosh: "[21] In R v McIntosh the accused pleaded guilty to manslaughter. The sexual partner of the accused had died after the accused deliberately pulled on a rope which, with the apparent consent of the deceased, had been placed around his neck. This was done on the basis that near asphyxia was thought by the accused to heighten sexual pleasure. Vincent J (as he then was) in the course of sentencing remarks set out in brief form his understanding of the law as it was at that time. He said: [11] First, it is not, of itself and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism. [12] Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk of even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful. [13] Third, apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself. [14] In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized. With respect, that appears to me to be an accurate statement of the current law as it applies in Australia, the United Kingdom and Canada. [22] Applying those principles to the present case, it cannot be said that the general activity in which the applicant and the deceased were engaged was unlawful for the purposes of the application of the unlawful and dangerous act formulation of the crime of manslaughter. Nevertheless, even though it might be accepted that the deceased had consented to bondage activity, the application of a gag to his mouth, whether or not he had consented, involved exposure to the risk of serious physical injury to him, just as did the placing of a plastic bag over the head of the complainant in the case of Emmett. There was a foreseeable risk of serious injury. Furthermore, the circumstances in which that foreseeable risk of serious injury arose included circumstances whereby the deceased was restrained and gagged. There was no possibility of his articulating his lack of consent, or indeed for that matter articulating his distress. Once the gag had been placed on him, he was totally in the hands of the applicant. Once that had occurred in circumstances where a risk of serious injury arose, the issue of consent became irrelevant."
The next case that should be noted chronologically is a decision by three Federal Court judges sitting as the Australian Defence Force Discipline Appeal Tribunal: Davis v Chief of Army [2011] ADFDAT 1; (2011) 278 ALR 199. In that case, after reviewing case law from England, New Zealand, Canada and Australia, the Tribunal concluded (at [29]) that: "In our opinion the weight of judicial opinion which has considered the question of the common law's position as to whether or not consent can be given to an assault causing bodily harm in circumstances such as the present, where there was a fight between combatants, whether in public or private, is that consent is irrelevant and does not have to be disproved by the prosecution. The only decisions to the contrary depend upon statutory provisions such as the criminal codes in Queensland and the Northern Territory. In our opinion, unless the provisions of the Crimes Act 1900 (ACT) compel otherwise, the decision of the learned Judge Advocate was correct. If it were necessary to do so, we would find that absence of consent is not an element of the offence of assault at common law, but if it is raised, the prosecution must disprove it beyond reasonable doubt in those circumstances where the law recognizes that consent may be a defence; and that the law does not recognize consent as a defence where there is either an intention to cause bodily harm or where bodily harm is in fact caused." (Emphasis added.)
Most recently, in M(B), the Court of Appeal of England and Wales considered whether consent could be a defence to charges of wounding with intent to do grievous bodily harm arising out of body modification procedures performed by a registered tattoo artist and body piercer, including the removal of a customer's ear, removal of a customer's nipple and splitting of a customer's tongue. This was the only case to which the Court's attention was drawn that examined the question of consent in the context of body modification. Lord Burnett CJ, who delivered the judgment of the Court, held (at [21]-[22]) that, consistent with the decisions in Brown, Donovan, Coney and Attorney-General's Reference (No 6), the general rule is that consent will not be available as a defence to a person who inflicts actual bodily harm or more serious injury, unless the case is one which falls within a special category of exceptions where there is "good reason" that consent should operate as a defence.
In holding that body modification procedures should not be placed in the special category of exemptions from the general rule, his Lordship reasoned that: "[40] Whilst the exceptions are incapable of being accommodated within any universally stated test, there are two features which may be thought to underpin almost all of them. First, they may produce discernible social benefit. That is true of the sporting exceptions and may even be true of boxing or "dangerous exhibitions" as entertainment. It is possible that those with a religious hue might also be considered as conferring a social benefit, at least at the time they were recognised. But the second is that it would simply be regarded as unreasonable for the common law to criminalise the activity if engaged in with consent by (or on behalf of) the injured party. That would apply to tattooing and piercing and, again, perhaps to those with a religious hue, including ritual male circumcision. [41] New exceptions should not be recognised on a case-by-case basis, save perhaps where there is a close analogy with an existing exception to the general rule established in [Brown]. The recognition of an entirely new exception would involve a value judgment which is policy laden, and on which there may be powerful conflicting views in society. The criminal trial process is inapt to enable a wide ranging inquiry into the underlying policy issues, which are much better explored in the political environment. [42] That said, there is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue splitting, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures performed for no medical reason. When Lord Lane CJ referred to "reasonable surgical interference" in [Attorney-General's Reference (No 6)] … it carried with it the implication that elective surgery would only be reasonable if carried out by someone qualified to perform it. The professional and regulatory superstructure which governs how doctors and other medical professionals practice is there to protect the public. The protections provided to patients, some of which are referred to in the medical evidence before the judge, were not available to the defendant's customers or more widely to the customers of those who set themselves up as body modifiers. It is immaterial that this defendant took some trouble to ensure a sterile environment when he operated, or that his work was in some respects tidy and clean. Consent as a defence could not turn on the quality of the work then performed. [43] The protection of the public in this context extends beyond the risks of infection, bungled or poor surgery or an inability to deal with immediate complications. Those seeking body modification of the sort we are concerned with in this appeal invited the defendant to perform irreversible surgery without anaesthetic with profound long-term consequences. The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable. There are good reasons why reputable medical practitioners will not remove parts of the body simply when asked by a patient. One only has to reflect on the care, degree of inquiry and support given to a patient before gender reassignment surgery can be performed to appreciate the extensive nature of the protections provided in the medical context. [44] The personal autonomy of his customers does not provide the defendant with a justification for removing body modification from the ambit of the law of assault… [T]he personal autonomy of one individual does not extend to involving another in what would otherwise be a crime." (Emphasis added.)
This decision is underwritten by robust common sense. It could not be described as either paternalistic or moralistic, charges that have been directed at the majority judgments in Brown: see Kell at 134. It is also not to the point, in our view, that body modification does not involve acts of aggression or an intent to inflict pain or injury, points of factual and contextual distinction from the circumstances of Brown, for example, that Mr Tedeschi sought to place emphasis upon.
For completeness, it should be noted that, in 2021, by s 71 of the Domestic Abuse Act 2021 (UK) (Domestic Abuse Act), the British Parliament gave legislative effect to the majority position in Brown. That section provides: "71 Consent to serious harm for sexual gratification not a defence (1) This section applies for the purposes of determining whether a person ("D") who inflicts serious harm on another person ("V") is guilty of a relevant offence. (2) It is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification (but see subsection (4)). (3) In this section - "relevant offence" means an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861 ("the 1861 Act"); "serious harm" means - (a) grievous bodily harm, within the meaning of section 18 of the 1861 Act, (b) wounding, within the meaning of that section, or (c) actual bodily harm, within the meaning of section 47 of the 1861 Act. (4) Subsection (2) does not apply in the case of an offence under section 20 or 47 of the 1861 Act where - (a) the serious harm consists of, or is a result of, the infection of V with a sexually transmitted infection in the course of sexual activity, and (b) V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection. (5) For the purposes of this section it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for D, V or some other person. (6) Nothing in this section affects any enactment or rule of law relating to other circumstances in which a person's consent to the infliction of serious harm may, or may not, be a defence to a relevant offence."
We support the approach articulated by Lord Burnett in M(B). It accords with the vast weight of authority, including the clear majority position in Brown, noting that even the minority judgments in that case did not contemplate that consent would be available as a defence to a charge of infliction of grievous bodily harm. It also accords with the position as stated in Attorney-General's Reference (No 6) which, as we have noted, was referred to in Marion's Case. The "central thesis" referred to by McHugh J in that case (see [68] above), respectful of personal choice and autonomy, was not unqualified. Further, the considerations identified in Lee at [301], as set out at [83] above, reinforce the view to which we have come.
Certainty is an important quality in the law and the weight of judicial authority in common law jurisdictions is that lines must be drawn subject to exceptions which are well established. The corollary of this is that, outside well-established exceptions, a case-by-case judicial inquiry into the social utility or disutility of particular conduct is best left for the legislature, as explained by Lord Burnett in M(B).
There is also the fact that our conclusion is consistent with the approach taken by the Victorian Court of Appeal in Stein, albeit in a different factual context. There being one common law of Australia (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; [1997] HCA 25; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [2]-[3], [15]), this Court should not take a different approach to a question considered by an intermediate court of another state but at a similar level in the judicial hierarchy unless convinced that that earlier approach is plainly wrong: C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at [48]-[51].
Even if this Court were itself to embark upon an examination of public benefit in the context of this particular case, the risks attending a significant surgical procedure such as that undertaken by the Appellant on BB outside a regulated medical environment are obvious and more than sufficient in our view to trump appeals to personal autonomy.
In this context, we reject an argument advanced by Mr Tedeschi that, because the Parliament has legislated to proscribe eyeball tattooing (see, Public Health Act 2010 (NSW) (Public Health Act), s 39A) but has not legislated to proscribe abdominoplasty by non-qualified health practitioners, this Court should not interfere to override BB's consent. One of the difficulties with this argument is that Parliament has signalled that abdominoplasty as a form of cosmetic surgery must not be performed at a private health facility that is not licensed: see Private Health Facilities Act 2007 (NSW) (Private Health Facilities Act), ss 4 and 33, Private Health Facilities Regulation 2010 (NSW), regs 3 and 3A and Private Health Facilities Regulation 2017 (NSW), regs 3, 4 and 13A. The Private Health Facilities Act requires that a medical advisory committee be appointed to be responsible for advising as to matters including "the accreditation of practitioners to provide services at the facility" and on matters concerning clinical practice and patient care and safety at the facility: s 39. That regulatory regime makes it unlikely in the extreme that anyone other than a qualified health practitioner would be permitted to undertake significant surgery at a private health clinic.
The fact that this statutory regime was not in force until after the Appellant's "surgery" on BB is not to the point: the Appellant was not charged with a breach of s 33A of the Private Health Facilities Act. What is to the point is that that regime is consistent with this Court's view that it is not in the public interest that a person can voluntarily submit to what was in effect a significant piece of surgery undertaken other than by a qualified health practitioner in licenced premises.
For completeness, we note that Mr Tedeschi relied upon a series of cases involving the transmission of sexual diseases, including the AIDS virus, to support his argument: see R v Dica [2004] QB 1257 (Dica), R v Barnes [2005] 1 WLR 910, R v Konzani [2005] EWCA Crim 706, R v Mwai [1995] 3 NZLR 149, R v Cuerrie [1998] 2 SCR 371 and Neal v R (2011) 32 VR 454; [2011] VSCA 172 (Neal). These decisions give rise to the question whether, if the law is prepared to allow an informed consent to the risk of contracting a potentially fatal disease, then what remains of the rule that, save for a few well recognised exceptions, persons will generally be prohibited from consenting to the application or threat of actual or grievous bodily harm: Arenson at 300. In this context, and parenthetically, we note that the effect of the English decisions and Dica in particular is now reflected in s 71(4) of the Domestic Abuse Act as referred to at [90] above.
We do not consider that the line of authority identified in the previous paragraph assists the Appellant's argument. As both Dica and the decision of the Victorian Court of Appeal in Neal at [73] make plain, an important distinction was drawn in those cases between the intentional infliction of injury (to which consent would not lie as a defence) and the reckless infliction of injury in the course of or incidental to consensual sexual activity. As the Director submitted, in the present case, the Appellant did not inflict the injury on BB incidentally in the performance of some other lawful activity but rather, the wounding to BB's stomach and the removal of the flesh was his specific intention.
For all of the above reasons, it follows that the appeal from conviction on Count 2 should be dismissed.

Grounds 3, 4, 5, 6, 7, 8 and 9: Count 3

The remaining grounds in the conviction appeal (grounds 3 to 9) all concern Count 3 which was the Appellant's conviction for the manslaughter of CC by criminal negligence. The background to this count can be found in the relevant paragraphs of the agreed facts: "29. The deceased, [CC] first met the Accused in mid-2014. She was very interested in body art and had a large number of tattoos and piercings. The Accused performed at least nine procedures on [CC], including scarification, implants and reshaping nipples. 30. The implant procedures involved the insertion of objects into incisions made with a scalpel through the sub-cutaneous tissue and then suturing of the site. The objects that the deceased had had implanted included a heart shaped mould on her right hand around one of her knuckles, a magnet inside her index finger, and a crown-shaped implant on her right shoulder. 31. Around 20 March 2017, the deceased had at least one silicon snowflake-shaped mould implanted under the skin on the top of her right hand by the Accused. He made an incision in the side of her hand and used a 'special tool' to separate skin from muscle. He then inserted at least one implant covering most of the top of the deceased's hand. 32. On 10 April 2017, the deceased saw the Accused at Transition. He injected the deceased's hand with anaesthetic and reopened the implant wound. The Accused repositioned the implant under the deceased's skin and sutured the incision. The Accused also made another incision in the deceased's thumb and inserted another implant under the skin. The deceased took a number of video recordings of these procedures on her mobile phone at the time. 33. On 11 April [2017], at 6.33pm a phone call was placed from the deceased to the Accused, which lasted for 129 seconds. 34. On 12 April [2017] at approximately 1:00AM, the deceased went onto her balcony and the deceased and her neighbour, Natalie SHACKLETON spoke for about 10 minutes. 35. On 12 April [2017], at around 6.00 am, the deceased's 8 year old daughter found the deceased in the loungeroom. She was unable to wake up he deceased and went out onto the balcony of the house and alerted SHACKELTON [sic]. 36. SHACKLETON went to the deceased's house to investigate. She noted that the deceased appeared deceased. SHACKLETON contacted 000. 37. On 18 April 2017, Dr. Brian BEER conducted an autopsy on the deceased's body. 38. During the autopsy a sample for the deceased's urine and femoral blood were collected for analysis. 39. These samples were later analysed by Thi Yen TRAN."
Additional agreed facts in relation to Count 3 were that "[a]t 6:24am on 12 April 2017, Natalie Shackleton called 000" and "[a]t the time the call was made, the deceased's body was warm."
The Crown case at trial on Count 3 was that a substantial cause of CC's death was sepsis, septic shock or septicaemia. In considering these grounds and in our analysis of the evidence, other than where we are referring to the terms of a submission or quoting evidence, we will use the terms sepsis and septic shock rather than septicaemia. Professor Ellis, a forensic pathologist called by the Crown at trial, explained that septicaemia is an infection in the blood. If the body reacts to that infection, then sepsis, or potentially septic shock, occurs. Thus, the descriptor "septicaemia" includes both sepsis and septic shock. As explained by Dr Emma Goeman, an infectious diseases physician and microbiologist called by the Crown: "… sepsis is defined as an infection associated with organ injury distant from the site of infection. Septic shock remains defined as a subset of sepsis in which the risk of mortality is substantially increased, and is characterized by hypotension (low blood pressure) that persists during volume resuscitation and requires the use of vasopressors. Even a brief period of significant hypotension can be fatal." (References omitted.)
The defence case at trial was that it could not be excluded that CC died of a drug overdose or simply that the cause of death was unknown.
During the hearing of the appeal, Mr Tedeschi indicated that he did not press ground 5. Further, he accepted that grounds 4, 8 and 9 were all particulars of ground 3, which contended that the verdict was unreasonable. That left grounds 6 and 7 as the two complaints about her Honour's legal directions. We shall consider those two grounds first before turning to consider the Appellant's central contention that the manslaughter verdict is unreasonable.

Grounds 6 and 7 "Ground 6: The trial judge erred in failing to give herself a "Shepherd direction" that the Crown had the burden of proving beyond a reasonable doubt an essential fact in the Crown case, that septicaemia was present in the deceased at the time of her death and that it was a significant or substantial cause of death of the deceased, such direction having been requested on behalf of the appellant. Ground 7: The trial judge erred in adopting a lower standard of proof in finding that septicaemia was a significant or substantial cause of death of the deceased, concluding instead that the evidence was consistent with such a finding."

The Appellant dealt with these two grounds together and we propose to do the same. It was contended that a conclusion that CC died of septicaemia was an essential fact that was required to be proved by the Crown beyond reasonable doubt. On that basis, it was submitted that a "Shepherd" direction was required: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd).
The advocate appearing for the Appellant at trial made an application for a Shepherd direction during his closing address in this way: "… the allegation that the deceased developed sepsis and the allegation that sepsis was a substantial and significant cause of her death are both indispensable intermediate facts which are, as your Honour might know, also sometimes referred to as links in the chain of reasoning and as distinct from strands in a cable. In the Crown case, on count 3, they must, therefore, each be established beyond a reasonable doubt on the authority for that proposition is Shepherd v R … ."
He then went on to submit the following: "… on a proper analysis of the expert evidence on the issue of causation, the Court could not be not satisfied, beyond a reasonable doubt, of either of those two essential matters."
The transcript does not record that there was any discussion with the trial judge prior to the closing address about the need for a Shepherd direction. The only other reference in the transcript to any proposed Shepherd direction is to be found immediately following the defence closing address. The advocate appearing for the Appellant at trial queried at that time whether he could be of further assistance to her Honour, and she replied as follows: "HER HONOUR: No. I don't think so. I can tell you that the other directions that you were seeking, perhaps, apart from the Shepherd direction, I don't think are controversial either, and I don't think Mr Crown is going to bother me about those. No."
There was no further discussion about the need or otherwise for a Shepherd direction, although it is to be inferred from this observation by her Honour that she did not consider that one was required. It is common ground that her Honour did not give herself a Shepherd direction.
The Appellant relies on the italicised portions in the following passages of her Honour's reasons in support of his contention that, not only did her Honour fail to give herself a Shepherd direction (ground 6), she applied an incorrect and lower standard of proof when determining whether the Crown had proved that septicaemia was a significant or substantial cause of death (ground 8): "[680] 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. [681] 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 [sic], may have contributed to the speed of her demise. [682] 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. [683] Having made findings that a significant or substantial cause of death was sepsis then the Court looks to the further issue of causation. …" (Emphasis added.)
We are not satisfied that error is established by her Honour's failure to give herself a Shepherd direction. The Crown case on Count 3 was circumstantial. The trial judge could not return a guilty verdict unless her Honour was satisfied that the Crown had excluded all reasonable hypotheses consistent with innocence, which, as the High Court pointed out in Shepherd, is another way of directing herself that the Crown must prove its case beyond reasonable doubt. Thus, if the evidence relied upon by the Crown gave rise to a reasonable explanation for the facts other than guilt, the Appellant must have been acquitted: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (The Queen v Baden-Clay) at [46], [50].
As the High Court (Gummow, Hayne and Crennan JJ; Gleeson CJ agreeing) confirmed in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13, given that it was a circumstantial case, her Honour was not to consider the evidence in a piecemeal fashion. Their Honours observed the following at [48]: "Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal."
In R v Keenan [2009] HCA 1; (2009) 83 ALJR 243, Kiefel J (as her Honour then was), with whom Hayne, Heydon and Crennan JJ agreed, stated at [128]: "The approach taken by his Honour is consistent with what was said in R v Hillier, namely that a circumstantial case is not to be considered piecemeal. It is of critical importance to recognise, in considering such a case, that "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." (Footnotes omitted.) This point was reiterated in The Queen v Baden-Clay at [47].
As the High Court held in Shepherd, the Crown does not need to prove every fact from which it invites the jury to draw inferences beyond reasonable doubt: at 580. Despite this, in some cases there might be one or more facts from which the jury is invited to draw an inference that is an "intermediate" step in the chain of reasoning that leads to the conclusion of guilt. As Dawson J stated in this well-known passage from his judgment (at 579): "…it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."
There is no settled test for determining what constitutes an indispensable intermediate fact. As Simpson J (as her Honour then was) stated in R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74]: "Whether a fact on which the Crown relies as part of a circumstantial case is or is not indispensable may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not "indispensable". Where the answer is in the negative, the fact is "indispensable" and the jury should be directed accordingly."
The fact that a matter can be identified as an indispensable intermediate fact does not necessarily warrant a conclusion that a Shepherd direction is required. As Dhanji J (with whom Ward ACJ and Rothman J agreed) observed in Fantakis v R [2023] NSWCCA 3 (Fantakis) at [903], (having extracted the relevant passage from Dawson J's judgment in Shepherd above): "Thus, that a matter can be identified as an "indispensable fact" does not warrant a conclusion that it was incumbent on the trial judge to direct the jury as to this. In the present case, the jury was properly directed as to the onus and standard of proof. The practical reality was that satisfaction of the elements beyond reasonable doubt necessarily implied satisfaction of the steps referred to above (at [901]), and vice versa. Each step relied on a body of circumstantial evidence which was to be considered together and not in a piecemeal fashion: Hillier. There is no basis on which to conclude that the application of the standard of proof was undermined in any way by the absence of an "indispensable fact" direction."
We are satisfied that the same situation arises in this case. No Shepherd direction was required because the factual matter identified was causation (that CC developed sepsis which was a substantial or significant cause of her death) - which was an element of the offence in any event. To put this another way, her Honour had to be satisfied beyond reasonable doubt that sepsis (caused by the Appellant's criminal negligence) was a substantial or significant cause of death. As was the case in Fantakis, the practical reality was that satisfaction of causation beyond reasonable doubt necessarily implied satisfaction that CC had sepsis and that it was a substantial or significant cause of her death.
As for the complaint under ground 7, we are not satisfied that the trial judge adopted a lower standard of proof when considering whether the Crown had proved that sepsis was a substantial or significant cause of CC's death because we are not satisfied that her Honour's description of the evidence of the lay witnesses being "consistent" with sepsis was her ultimate finding in relation to that element. We have extracted the relevant paragraphs (PJ [680]-[683]) above and are satisfied they do not contain her Honour's ultimate finding on this issue.
The trial judge correctly stated the standard of proof for causation at the commencement of her Honour's consideration of Count 3 when she noted the following: "[347] In order to prove manslaughter on this basis, the Crown must prove a number of elements beyond reasonable doubt. Unless I find each of these elements proved to that standard, the accused must be acquitted. [348] The elements which the Crown must prove are: … (4) The act or omission of the accused significantly or substantially caused the death of the deceased. This is in issue …"
Her Honour then considered the lay evidence at PJ [350]-[472], the nature and breach of the duty of care at [473]-[516] and the degree of negligence at [517]-[531]. Her Honour then considered the expert evidence at [532]-[671] before directly addressing the issue of causation at [672]-[682].
At PJ [672], which immediately follows the heading "Causation" her Honour again correctly stated the relevant standard of proof as follows: "I have made findings above as to the duty of care owed by the accused to 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." (Emphasis added.)
After again correctly identifying the relevant standard of proof regarding the issue of causation, her Honour went on to provide her reasoning for being satisfied (beyond reasonable doubt) that sepsis was a significant or substantial cause of death. In doing so, she referred back to the expert evidence she had already summarised (including that of Dr Goeman and the forensic pathologists Dr Beer, Professor Duflou and Professor Ellis) that sepsis was operating and was in effect a substantial cause of death (at PJ [674]). She also noted that drug toxicity may have been a contributing factor. She went on to note that no expert witnesses had suggested that there was any other potential cause of death that would be consistent with all of the autopsy findings: at PJ [676]-[679]. Her Honour also referred back to her earlier findings as to why she did not accept the expert opinion of Dr Collins and Professor Paterson that the cause of death could not be ascertained; the main reason being the validity of their assumptions regarding observations of CC by the doctors who saw her on the preceding day. It was in that context that her Honour made the observations she did at PJ [681]. Further, the impugned observation at [681] was immediately followed by the following at [682]: "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 considered the impugned paragraphs in their proper context, we are not satisfied that they contain any misdirection by her Honour as to the relevant standard of proof for causation. We would not uphold grounds 6 or 7.

Grounds 3, 4, 8 and 9: Unreasonable verdict

The remaining four grounds of the conviction appeal are as follows, noting that it was accepted that grounds 4, 8 and 9 are, in effect, particulars of ground 3: "Ground 3: The verdict in respect of Count 3 is unreasonable and cannot be supported having regard to the evidence Ground 4: The trial judge erred in finding that the appellant was criminally negligent in respect of his treatment of the deceased Ground 8: The trial judge erred in finding that septicaemia was a significant or substantial cause of death in that the evidence was incapable of proving that fact beyond a reasonable doubt. Ground 9: The trial judge erred by failing to properly take into account the ingestion by the deceased of drugs in assessing whether or not septicaemia was a significant or substantial cause of her death."
The trial judge correctly identified the elements that the Crown was required to prove beyond reasonable doubt at PJ [348] as follows, including the elements which were disputed (although the first element is not strictly necessary as it forms part of the fourth element): "(1) That CC died. This is not in dispute, exhibit 30 is a verification of death declaring that her death was pronounced on 12 April 2017; (2) The accused owed a legal duty of care to the deceased. The accused accepted that he owed a duty of care to the deceased as he accepted he played a causative part in the sequence of events which gave rise to the risk of injury: see para 128 of the outline of defence submissions. The nature of the duty of care he owed is in issue; (3) That the accused by his acts or omissions breached his duty of care towards the deceased. This is in issue; (4) The act or omission of the accused significantly or substantially caused the death of the deceased. This is in issue; and (5) The acts or omissions of the accused amounted to gross criminal negligence and merit criminal punishment for the offence of manslaughter because (1) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (2) involved such a high risk that death or really serious bodily harm would follow as a result of the omission. Both of these are in issue."

Unreasonable verdict

The principles that apply to a complaint that a verdict is unreasonable are well established: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. As to how these principles are to be applied where, as here, an accused has been convicted after a trial by judge alone, this Court has recently in Slattery v R [2023] NSWCCA 117 at [113] distilled the following principles from the decisions of the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) and Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (Dansie): "(1) The task to be performed by the appellate court is not to determine whether there was error in the trial judge's factual findings, but rather to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty: Dansie at [7]. (2) The appellate court must ask itself whether, having made its own independent assessment of the whole of the evidence, it is satisfied that it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. This question will be the same whether the trial was conducted before a judge alone or before a jury: Dansie at [15]; Filippou at [82]. (3) If the appellate court entertains a reasonable doubt that the accused was guilty, the court must conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt: Filippou at [82]; Dansie at [15]. (4) While the appellate court should approach the reasons of the trial judge with circumspection, it is entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings: Dansie at [16]; Filippou at [83]. (5) The advantage that a trial judge may have had by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and the nature of the issues that arose at the trial: Dansie at [17]. (6) Where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight: Dansie at [17]. (7) As a corollary of proposition (6), the advantage enjoyed by the trial judge will be greater where the prosecution case was supported by direct evidence of complainants whose testimony was challenged under cross-examination."
The principles that apply to a complaint that a verdict based on a circumstantial case is unreasonable were recently explained by this Court in Macdonald v R [2023] NSWCCA 250 (Bell CJ, Basten AJA, Button J) at [378]: "The fact that this was a largely circumstantial case has two consequences, operating in different directions, for consideration of the unreasonable verdict grounds. First, to establish that particular findings leave open a reasonable hypothesis consistent with innocence (and thus permit a reasonable doubt) will not be a sufficient basis for setting aside a verdict unless the Court is satisfied that having regard to all of the circumstantial evidence, the doubt remains. On the other hand, rejection of a challenge to specific findings on the basis that the findings were open to the trial judge may not preclude the formation of a reasonable doubt as to the outcome. Thus, the rejection of the specific challenges, for example in ground 5, will not preclude the formation of a reasonable doubt as to the verdict. Accordingly, ground 2 requires a broad review of the evidence."

Criminal negligence

Manslaughter based on criminal negligence is a species of involuntary manslaughter. As the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed in The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 (Lavender) at [2], there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence.
The elements necessary to be established in a case of manslaughter by criminal negligence are those set out in Nydam v R [1977] VR 430 (Nydam) at 445 approved by the High Court in Lavender, and also approved in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (Burns) at [19] where French CJ stated the following (citing Nydam): "Involuntary manslaughter by criminal negligence at common law is made out if the prosecution shows that: "The act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man [sic] would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment"."
It was common ground that the trial judge correctly stated the elements of the offence at PJ [348] of her Honour's reasons extracted above at [125].

Causation

As to the test for causation, the relevant principles are also well established. As set out in the judgment of the High Court in Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11 (Swan) at [24]-[25]: "There was no dispute on this appeal that the requirement that the act of the accused cause the death charged required the jury to be satisfied that the act of the accused was "a substantial or significant cause of death" or a "sufficiently substantial" cause. That formulation, derived from Royall v The Queen, recognises that boundaries must be drawn for legal responsibility; not every act that is necessary for death to occur is sufficient for the imposition of legal responsibility for the death. It was also recognised in Royall v The Queen that there are some cases where an accused will be legally responsible for a death even if the act of the accused was not, by itself, necessary for the victim's death but was instead "one of the conditions which were jointly necessary to produce the event". An exceptional example where an accused might be held legally responsible for the death of another even if the act of the accused was not by itself necessary for the victim's death is where a victim "dies from the combined effects of … two wounds", either of which would have been sufficient for death but only one of which was inflicted by the accused." (References omitted.)
The factual issue in Swan was whether it was open to the jury to conclude that a decision not to operate on the victim's fractured hip was taken because of the victim's low quality of life. There was no dispute that the victim's low quality of life was caused by the assault on him by the appellant. The appellant submitted that the decision not to operate may have been due to any one or all of a number of factors other than the victim's low quality of life, which the Crown had not excluded beyond reasonable doubt. In that context, the High Court in Swan held (at [46]) that cause of death would be established provided that the culpable act "substantially or significantly contributed" to the deceased's death and that in order to reach that conclusion it was not necessary to "[fillet] the factors within the decision-making process to attempt to isolate the relative contribution of some or all of the five matters above upon which the appellant relied." Thus, as there was an irresistible inference that the decision to treat palliatively was based "substantially or significantly upon the persistent, long-term, and catastrophic effects of the assault", it was open to the jury to find that causation was proved.
The purpose of the enquiry as to causation is to attribute legal responsibility to some person. The question of causation is to be determined by an application of common sense to the facts, always appreciating that overarching purpose of the enquiry: see, eg Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (Royall) at 387 (Mason CJ), at 411-412 (Deane and Dawson JJ), at 423 (Toohey and Gaudron JJ), citing with approval Burt CJ in Campbell v The Queen [1981] WAR 286 at 290; (1980) 2 A Crim R 157 at 161.
In Royall, Deane and Dawson JJ held (at 411) that what amounts to a substantial or significant cause depends upon the jury determining: "whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused: R v Pagett [(1983) 76 Cr App R 279]."
Their Honours held (at 412), that: "No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connexion between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connexion must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused."
In Royall, McHugh J noted (at 442), by reference to the judgment of Lord Parker CJ in R v Hennigan [1971] 3 All ER 133 (Hennigan) at 135, that substantial, in the context of considering whether one cause "is still an operating cause and a substantial cause" notwithstanding the intervention of a second operative cause, was "a convenient word to use to indicate to the jury that it must be something more than de minimis". In Hennigan, the factual issue was whether an accused caused the death of passengers in a car which he was driving in circumstances in which the collision was caused both by his dangerous driving and by the other car involved in the collision being driven "dangerously too fast." Lord Parker held, on the facts of that case, that even if the accused was "only one-fifth to blame, he was a cause of the death of these two people": at 135.
These principles were recently applied by Beech-Jones CJ at CL (Harrison and Wright JJ agreeing) in Baker v R [2023] NSWCCA 262 (Baker). As his Honour there recognised at [54]-[58], consistent with these principles, causation can be established where two or more independent acts cause death and where the act or omission of the accused accelerates death.
As set out above, in Swan there was no dispute that the accused's act had to be a substantial or significant, or sufficiently substantial, cause of death. Cases subsequent to Royall have considered the meaning of the words "substantial" or "significant". In R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201, Wood CJ at CL (Foster AJA and Adams J agreeing) held (at [71]) that the effect of Royall is that "the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the deceased". Whilst such analysis provides an illustration of how the words "substantial or significant" can be construed, the words themselves are in any event clear and unambiguous. There is no need for any further explication of that which must be proved beyond reasonable doubt in a case in which there may be multiple potentially operative causes.
In such a case the overarching question which the Court must answer, by reference to that test, is whether the accused's act or omission has such causative potency that the accused should be held criminally responsible for the outcome. That is not a question which should be approached on the basis of percentage attribution as between the act or omission of the accused and other potential causative factors. Nor does it necessarily require a comparison as to the relative causative potency of various operative causes. Rather, the Court should assess the whole of the evidence, including the causative potency of the accused's act or omission, with a view to determining whether or not the link between the accused's act or omission and the relevant outcome is sufficiently substantial or significant that the accused should be criminally liable for the outcome. If it is, then the accused's act or omission will be a cause of the outcome even if there is another cause or contributor unrelated to the accused's act or omission, which of itself may, on the evidence before the Court, have also been sufficient to cause the outcome. So much is apparent from the High Court's judgment in Swan at [25] (set out above). Similarly, if the act or omission of the accused is, together with other factors, sufficient to cause the outcome, the accused may be liable provided that their act or omission made a substantial or significant contribution in the circumstances.
It follows from this analysis that we reject the Appellant's contention that it is incumbent upon the Court in every case where there are competing causes of death to assess the relative causative potency of each competing cause. As is clear from Swan, the question is simply whether the act or omission of the accused can properly be characterised as a substantial or significant cause of death, for the purpose of determining criminal responsibility. Whilst the potential that a different cause was operative will necessarily inform that enquiry, the task of the Court is not to assess the relative contribution of each potential cause. Further, as the Director submitted, there may in some cases be more than one substantial or significant cause of death.
The approach can be illustrated by the decision of the Victorian Court of Appeal in Freeburn v The Queen [2020] VSCA 155 (Freeburn). The Applicant in that case had been convicted of manslaughter and his grounds of appeal included that the jury's verdict was unreasonable as the evidence could not establish causation beyond reasonable doubt. The evidence established both that the victim had been the subject of significant trauma and that she had the narcotic gamma hydroxybutyrate (GHB) in her blood at a level of 39 mg/L. Two forensic pathologists had given evidence. The opinion of one (Dr Burke) was that the victim died as a consequence of soft tissue injuries in the context of her using GHB but that he "would not have a 'problem' with" the view that the cause of death was unascertained. The other (Professor Duflou) expressed the view that the cause of death should be "undetermined" but that he did not "exclude the possibility" that the victim died purely as a result of her injuries, or that the cause of death was "a combination of an assault on a woman who was using GHB." In cross-examination both forensic pathologists had also accepted that consumption of GHB, in isolation, was a possible cause of death.
There is no suggestion in the judgment that either forensic pathologist had attributed any relative weight to the contribution of the assault and GHB in the context of their respective opinions that it was possible that it was the combined effect of the assault and use of GHB that caused the victim's death.
The Court held that, on the facts, the jury was entitled to conclude that after being beaten by the Applicant the victim was left in the position in which she was ultimately found dead some three days later. In that context, the Court held that the jury was entitled to exclude the possibility that the victim's death was caused by the ingestion of GHB alone and be satisfied beyond reasonable doubt that "the injuries inflicted by the applicant … were a substantial and operative cause of her death, even if the ingestion by her of GHB had had a relevant causative effect." In so approaching the evidence, the Court in Freeburn reiterated, as was established in Royall, that questions of causation, including whether a cause is substantial or significant, must be determined as an exercise in common sense.
In an earlier decision of this Court, Ussher-Clarke v R [2018] NSWCCA 61 (Ussher-Clarke), decided before Swan, the evidence suggested multiple potential causes of the victim's miscarriage (the grievous bodily harm that the accused was convicted of having occasioned). On the facts of that case, Beazley ACJ, with whom Walton and N Adams JJ agreed, held (at [62]) that the relevant question as to causation was whether the trauma occasioned by the accused was a significant cause of the miscarriage and that: "… the other nominated causes of the miscarriage were excluded as reasonable possibilities."
Her Honour (at [89]) then excluded the other possible causes on the basis that they: "… were either not established, such as genetic abnormality, or did not rise above a possibility, as in the case of infection and cervical incompetence, or the possibility was so statistically low, as in the case of spontaneous miscarriage at 12 weeks and some days, as to be reasonably dismissed as a cause in this case."
The decision in Ussher-Clarke should not be taken to establish that proof of causation will necessarily depend upon establishing that potential causes other than the accused's act or omission are excluded as reasonable possibilities in all cases where multiple causal factors may have been operating. Such a conclusion would be inconsistent with the analysis in Swan set out above. In particular, it is clear from Swan that causation may be established where multiple sufficient causal factors are shown to have operated, or where two or more causal factors operate in combination to cause the relevant outcome.

The Appellant's contentions

Grounds 3, 8 and 9 of the Appellant's grounds of appeal focus attention upon the issue of causation of CC's death.
In oral submissions, the Appellant's contentions as to causation raised three issues.
First, whether the trial judge erred in failing to consider whether both sepsis and multi-drug toxicity (referred to by some of the experts as "mixed" drug toxicity) were causes of death. The Appellant submits that there was evidence before the Court of the possibility of multi-drug toxicity being the sole cause of death. Beyond that, however, the Appellant submits the evidence supported a conclusion that multi-drug toxicity and sepsis were both operating as causes of CC's death.
Second, whether the trial judge should have approached the question of causation by considering all of the evidence as to both sepsis and multi-drug toxicity as potential causes of death and then conducting a weighing exercise to see whether her Honour was satisfied beyond reasonable doubt that sepsis was a substantial or significant cause of death. The Appellant submits that where, as here, there may have been multiple causes of CC's death, the trial judge has to assess the significance of the competing causes in order to be satisfied that one cause is a substantial or significant cause of death. That requires an assessment of the relative contribution of each competing cause. The Appellant submits that the trial judge failed to conduct that assessment.
The Director submitted, in response, that where there are competing causes of death the Court is not required to allocate a proportion or likelihood to each of those competing causes. Rather, the question, having regard to the decision of the High Court in Swan, is whether the act relied upon to establish liability was a significant or substantial cause of death and there may, in any one case, be multiple significant or substantial causes. As is clear from our analysis set out below, we accept the Director's submission.
Third, whether, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that sepsis was a substantial or significant cause of death, as required having regard to Royall and Swan.
The crux of this third issue as to causation is whether the evidence before the Court required a conclusion that both sepsis and multi-drug toxicity were contributors to CC's death and, if so, whether the evidence enabled any reliable conclusion as to the relative contributions of each. If the evidence did not enable any reliable conclusion as to this, the question is whether that, in turn, has the consequence that it was not open to the trial judge to find beyond reasonable doubt that sepsis was a substantial or significant cause of CC's death.
The Appellant's submission as to this issue, which overlaps somewhat with the submission as to the second issue, is that the "medical evidence was incapable of proving beyond reasonable doubt that septicaemia was a substantial or significant cause of death. None of [the medical experts] were ultimately prepared to say that they could assess the level of contribution between the two possible causes of death." Further, the Appellant submits that, on the evidence, CC may well have died from multi-drug toxicity and the conclusion that she died from sepsis was not open.
The Director submits that, on a review of all of the evidence, the trial judge's decision was open to her Honour and this Court, having made its own independent assessment of the whole of the evidence, should not entertain a reasonable doubt as to the Appellant's guilt. The Director submits that ultimately there were only two potential causes of death, sepsis or multi-drug toxicity, and drug toxicity could be excluded as the sole cause. The evidence did not permit for any rational inference other than sepsis as the cause of death.
Ground 4, which it was accepted was also a particular of ground 3, contended that her Honour erred in finding that the Appellant was criminally negligent. There is significant factual overlap between her Honour's findings on criminal negligence and causation but they were addressed separately by Senior Counsel at the hearing so we will take the same approach.
The parties' written and oral submissions in relation to grounds 3, 4, 8 and 9 were detailed and focussed on taking the Court to various parts of the extensive trial transcript. In order to address these submissions, and consistent with our obligation to make our own independent assessment of the whole of the evidence and to expose our reasoning process, it is necessary to refer to a significant part of the evidence at the trial. We propose to summarise the evidence of the observations made by family and friends who saw CC in the lead up to her death. This evidence is relevant to the assessment of whether CC was unwell with an infected hand in the days before her death and whether that infection progressed to sepsis. We will then refer to the evidence of CC's medical history, which is relevant to the effect upon her of the many drugs that were found on toxicological analysis after her death and also to whether she would have told her treating doctors that she was concerned her hand was infected in the days before her death. We will then briefly refer to the evidence of Dr Ron Bezic, a doctor specialising in cosmetic and plastic surgery. He gave expert evidence about the Appellant's duty of care to CC and how, in his opinion, it was breached.
The Crown also relied at trial on tendency evidence. That tendency was expressed as a tendency to undertake procedures that resulted in adverse health complications; deter his subjects from receiving the treatment from a medical practitioner; fail to undertake discernible consent procedures or any such procedure involving the informed consent of the subject; undertake procedures without appropriate antiseptic techniques to reduce the risk of infection; and fail to provide adequate after-care. The Crown also relied on coincidence reasoning to establish that an adverse health result in more than one case was no coincidence.

Lay witnesses

The following witnesses gave evidence of observations they made of CC and conversations they had with her in the period after 20 March 2017 (when the silicon snowflake implant was inserted), interactions she had with the Appellant during that time, and/or conversations they had with the Appellant before and after CC's death: 1. MA was the Appellant's business and intimate partner at the time of the procedure performed on, inter alia, CC. 2. Lawrence O'Neill was a barber at Transition. He gave evidence about the body modification procedures he had observed. Coincidentally, he was the ex-partner of CC and gave evidence about conversations he had with her. He also gave some general evidence about the Appellant's infection control practices. 3. David Olteanu was a tattoo artist employed at Transition. He gave evidence about his observation of CC's hand and conversations he had with the Appellant after CC's death. He also gave some general evidence about the Appellant's infection control practices. 4. CC's mother saw CC on 9 April 2017 and gave evidence about her observations of her hand. She also spoke to CC on the phone on 10 and 11 April. 5. CC's brother also saw CC on 9 and 10 April 2017 and spoke with her on the phone on 11 April 2017. 6. Peta Bergan was a friend of CC's who spent time with her on 10 April 2017 and made observations about her hand. 7. Emily Shackleton was a neighbour and friend who saw CC several times between 27 March 2017 and her death, including the night she died. 8. Natalie Shackleton is Emily's mother, who lived with her daughter next door to CC. She also saw CC several times during the relevant period, including the days before she died and at 1 am on the morning she died. 9. Wayne Shackleton is married to Natalie and is Emily's father. He saw CC for dinner the night she died.
The evidence of the following three medical practitioners was of some significance at the trial: 1. Dr Quinten Willemse was CC's regular general practitioner (GP). 2. Dr Leon Van der Walt was a relief GP who saw CC on the day before she died. 3. Professor Jonathan Sturm was CC's treating neurologist who also saw her on the day before she died.
There was also a body of documentary evidence including medical reports, photographs, videos, and telephone records. Notably, CC took a photo of her hand on 8 April 2017 and photos of her hand whilst she was at Transition on 10 April 2017. CC also took footage of the additional procedure to her thumb at Transition on 10 April 2017. After CC's death, her mother downloaded that footage as well as some photographs from CC's mobile telephone and provided it to police. The footage became Exhibit 14 at trial and the photographs became Exhibit 23.
Dr Bezic reviewed Exhibits 14 and 23 and gave evidence about whether CC's hand was infected. His evidence also went to the Appellant's practice generally and the question of negligence.
The Crown called four forensic pathologists to give evidence: Dr Brian Beer, Professor Johan Duflou, Professor Peter Ellis and Dr Isabella Brouwer. The Crown also called Dr Goeman, and a pharmacologist, Dr Shuang Fu. We will consider their evidence below in our consideration of the Appellant's contention that it was not open to the trial judge to be satisfied of causation beyond reasonable doubt.
The Appellant did not give evidence in his trial. He accepted that he owed CC a duty of care because he played a causative role in the sequence of events which gave rise to the risk of injury. He disputed that he had breached this duty of care or that he had been criminally negligent in his treatment of CC. He also disputed that her death was caused by sepsis or septicaemia. In addition to calling evidence from his wife Maria Russell, he called evidence from three expert witnesses in relation to Count 3: Professor Paterson, an infectious diseases physician and professor of medicine; John Farrar, a forensic pharmacologist; and Dr Byron Collins, a forensic pathologist. We consider their evidence together with the Crown expert evidence in our analysis of the issue of causation below.
We propose to summarise the lay evidence chronologically rather than by witness. As will be seen below, this evidence has significance on two bases. The first reason this evidence is so important is that the question of how CC was presenting in the days before her death is relevant to the assumptions upon which the experts based their opinions about whether sepsis was a substantial or significant cause of death. The second reason this evidence is important is that the Appellant contends under ground 4 that CC did not appear unwell when he saw her on 10 April 2017, thus, he could not be said to be criminally negligent in failing to encourage her to get medical attention at that time and on the telephone on the evening of 11 April 2017.

Chronology of observations of CC from 20 March until 12 April 2017

It was an agreed fact that CC attended Transition on 20 March 2017 and the Appellant inserted the silicon snowflake-shaped implant into her right hand as described above at [100].
On 20 or 21 March, CC spoke to her friend Lawrence O'Neill. She told him that she was pleased with the implant. She also told Emily Shackleton, her neighbour and friend, that she was happy with the implant.
On 22 March, CC had a lumbar puncture at Gosford Hospital in relation to her chronic headaches and migraines, which she had been experiencing for a few years. Her mother collected her from the hospital and observed a loose bandage on her hand. When she asked CC what had happened to her hand she replied that she had slipped over and sprained it.
A few days later, CC mentioned to Mr O'Neill either over the phone or by message that the swelling was not going down and she was a bit worried.
Around 27 March (a week after the procedure), CC discussed the implant with Emily Shackleton. Emily observed that it was swollen and red and described it as "not normal". Her evidence was that it looked infected at that time and extremely painful. In the past, CC had helped Emily and her family roll newspapers. Her hand was so sore she was not able to assist with this that day (or in fact ever again).
Around 29 March, CC admitted to her mother that she had lied about spraining her hand and showed her the implant. Her mother was "horrified" as it was so big. CC said to her, "[o]h, it's okay, don't worry about it".
Around 29 March (two weeks before 12 April), Natalie Shackleton saw the implant on CC's hand. Her evidence was that it did not look infected at that stage. She could "just see where he had implanted it with a stitch".
Around 5 April (a week before 12 April), Natalie Shackleton saw a "green round scab on CC's hand that looked very pusy [sic]". She described it as a "round, green pusy [sic] wound". She asked CC to go to the doctor and get some antibiotics.
At some stage (a few days before 10 April) Mr O'Neill had a conversation with CC. She told him that an infection had come up on her hand. Mr O'Neill told her to go to the doctor or hospital. She refused. She told him that the Appellant told her to "give it a couple of days".
On 8 April, CC took a photo of her hand which became part of Exhibit 23 at trial. Dr Bezic was asked to comment on this photograph and described the hand as being infected at that time.
In the afternoon on 9 April, CC saw her mother and her brother. She was wearing long sleeves but when she reached with her arm her mother saw "this yellow and green incision [on her hand] and clearly there was no stitches in it". Her mother said, "[o]h my god, [CC], your hand, what's happened"[?]. She also said to CC, "[i]t's infected". CC replied: "It's okay, mum … I'm seeing [the Appellant] tomorrow, he's going to clean it for me, and besides, I'm on antibiotics."
CC's mother described only seeing CC's hand briefly. She saw that there were no stitches in the incision and that, "it was likely to pop open", "it was green and yellow", "[i]t was clearly infected." She described the incision as being about "3/4 centimetres" long and it was open. She could not see the whole hand, only the incision because CC was wearing a jumper with long sleeves and a loop around the thumb so it didn't "come back" when she reached across the table.
MA gave evidence that at some point in March, CC came to Transition to get the implant "fixed up" because she thought it was infected. Although she did not provide a date, this was most likely on 10 April.

Monday 10 April 2017

On 10 April, CC visited the Appellant at Transition because of her concerns about the implant site. The Appellant injected CC's hand with anaesthetic, which was very painful, and reopened the wound to reposition the implant under her skin and suture the incision. The Appellant made a separate incision in CC's thumb on the same hand and inserted an implant under the skin of her thumb. The footage of this procedure became Exhibit 14. As discussed below, there was no evidence at trial as to whether it was the Appellant's idea for CC to get an additional implant on the same hand that day or CC's idea.
David Olteanu was at the studio when CC came in on 10 April. He gave evidence that CC was concerned about how sore her hand was. He observed her hand and described it as "pretty raw". He briefly entered the room and saw the Appellant "working on it". He also recounted that the Appellant said to take painkillers and that if it gets worse, she may need to see a doctor and get antibiotics. The Appellant said "if you really need antibiotics…get some but painkillers should be enough". Mr Olteanu also recalled that the Appellant said, "[d]on't tell them who did this if you need to get antibiotics".
That afternoon, CC and her daughter visited her friend Peta Bergan. Ms Bergan was under the impression that CC had been to Transition that morning. She described CC as being "her normal happy self" and in good spirits but the implant was causing her a bit of pain. She looked tired, but Ms Bergan said that was normal for her because she suffered from headaches and migraines. The implant was quite visible because it was bleeding through a band aid, so they used tissues to stem the bleeding. Ms Bergan thought it looked uncomfortable. When asked how CC appeared that day she gave the following answer: "She was her normal self, she always looked a little bit tired, that was quite normal for her, because I know that she did have - she sort of suffered a bit from migraines and headaches quite a bit, so she was a bit tired, but that was normal, but she was still in a really good mood. It was more the hand was annoying her so she was fidgeting with it quite a bit. She said she sort of knew that it was not sitting right, she'd had these things before. I wasn't sure, so."
When asked what happened next Ms Bergan gave this answer: "Well, in the end she was quite worried about how much it was bleeding and that it wasn't sitting right so she wanted to go back to see about getting it - if there was something wrong, if it had moved."
Ms Bergan looked after CC's daughter whilst she went to visit Transition for the second time that day.
At about 5 pm that day, CC spoke to her mother on the telephone. CC was upset and told her that she had seen the Appellant twice that day, in the morning and afternoon. He had repositioned the snowflake and cleaned it up. CC said that her hand would not stop bleeding and that she had "never seen so much blood".
At about 5 pm that day, CC's brother went to visit CC at her house for a couple of hours. She was in good spirits but in a lot of pain because of her hand, which "kept oozing blood and puss [sic] out". She told him that the Appellant had moved the implant around a bit that day. She also told him that the Appellant injected local anaesthetic which nearly made her pass out and he squeezed blood and pus out of the wound. She said her hand was the worst pain she had ever been in. This is of some significance as her brother noted that CC had a high pain tolerance. CC said that the Appellant told her to squeeze the blood and pus out. Her brother recounted that it "looked quite badly infected" and "she said she was on antibiotics, but she just kept squeezing loads of blood and pus out of it on to toilet paper. And she said it was the worst pain she's ever had to deal with". He could see the incision where the implant had been inserted, which he thought was a starfish, and saw "white, yellowy, pussy chunks with just like the black blood" where she was squeezing it.
In the evening (about two hours after CC left Ms Bergan's house), she returned to Ms Bergan's house. When she came back Ms Bergan observed that her hand had a "new band aid over the top" and it "wasn't bleeding anymore like it was previously". CC's daughter had dinner with Ms Bergan's children.
After leaving Ms Bergan's house, CC had dinner at Natalie Shackleton's house. This was something she did every night at the time. CC told her that the Appellant had moved the snowflake to a different position that day and when he cut open her hand, all this blood and pus came gushing out the side. He also added another modification to her thumb. When the Appellant injected anaesthetic, she felt that he had gone too deep into her hand as it was very painful. CC took a video of the procedure, which she showed to Natalie. Natalie said she saw a "massive gush of blood and goo". CC said her hand was very painful and very sore. Natalie asked if she had obtained any antibiotics and CC replied that she had not.
At some stage ("a couple of days" after CC's last communication with Mr O'Neill about her hand) CC told Mr O'Neill that her hand was more swollen than normal, and it was not feeling good. She told him that it had started to get infected. He gave evidence that the Appellant flushed the wound with saline solution and sewed it up again however he was not sure whether CC had told him this or whether he learnt it after her death. He believed that the Appellant was the only person CC sought advice from about the infection.
On another occasion after the second visit to the Appellant, CC and Mr O'Neill had a conversation. Mr O'Neill gave evidence that CC was really worried about the wound and told him that her hand was big and swollen. She had migraines at the time.

Tuesday 11 April 2017

Between 9.30 am and 10.30 am on 11 April, CC saw Natalie Shackleton again. She appeared exhausted and "extremely tired". CC told her that she had not slept, and her hand was sore. She asked if Natalie could look after her daughter while she saw her neurologist at 2.30 pm about her headaches.
In the morning, CC visited a GP, Dr Leon Van Der Walt, at Mingara Medical Centre to get a repeat prescription for her pain medications for her chronic severe headaches. Her usual doctor, Dr Willemse, was not working that day. Dr Van Der Walt described CC as being "very desperate that day". He described how CC "expressed a lot of distress and her big distress was her lack of sleep". She complained of severe pain and severe lack of sleep. He stated, "she pretty much said that if we do not do something to her pain life was just not worth living really". She also said to him, "I'm so desperate because I can't sleep and I have so much pain that I do not want to carry on like this, it's too much." Dr Van Der Walt stated that other than the headaches and the pain associated with the headaches she did not make any other complaint about any other medical matter. He did not observe any obvious injury on her. He expressed concern about her taking eight Endone tablets a day and increased her Norspan patch (a longer acting opioid) to 20 mg which he saw as "basic good pain management".
Some time after this, CC spoke to her brother on the telephone. He said, "she just sounded exhausted, like, her voice was slowed and laboured, and she said "I think I've overdone it, I'm fucked, I can't keep my eyes open"". She said Natalie was with her. Half an hour later, CC called him back and said she was going to her neurologist.
At around 1.30 pm, CC returned to Natalie Shackleton to drop her daughter off so she could see the neurologist. She told her that she was going to see the neurologist because her headaches were getting worse. Natalie described CC as looking worse than before. She was worried she would fall asleep while driving, so she came with her in the car as a passenger (Natalie did not drive). Natalie noticed there were specks of blood on CC's shirt. CC's sleeve was covering her hand, but when she pulled the sleeve back Natalie noticed that all the stitches in her hand had fallen out or were in the process of falling out and "her hand was weeping blood and puss [sic]". CC kept asking Natalie to pass her tissues to wrap around it. CC called the Appellant and made an appointment with him for 9 am the next day, on 12 April.
Meanwhile, CC's brother drove to her house to take her to the appointment with the neurologist, but she had already left. He later met Natalie Shackleton in the car park of the neurologist and she told him that CC was "okay".
At 2 pm, CC met with Professor Sturm, a neurologist she had been seeing about her headaches since April 2015. She reported frustration with daily headaches, poor sleep and low mood. He suggested she try Mirtazapine, an antidepressant with a slightly sedating effect, and Lyrica which is used for neuropathic pain. He asked her to cease taking the Endone as it can cause rebound headaches. He agreed with the following passage from his statement: "I do not recall making any particular observation of her right hand, nor did I record anything about her right hand in my notes. She didn't complain of any problem with her right hand and she did not appear septic, ie, didn't appear systemically unwell, flushed or sweaty."
Professor Sturm further noted that he had not recorded conducting a physical examination of CC and it is likely that he did not.
At some point after seeing Professor Sturm and before 4 pm, CC went to a pharmacy and dispensed the Lyrica script. It can be inferred from PBS records, referred to below, that she also filled an antibiotic prescription on that day.
At about 4 pm, CC and Natalie Shackleton arrived back at Natalie's house after the appointment. CC "napped" on the lounge. When she woke up, she did not seem her normal self; she seemed confused, her speech was very slurred, and she was not making much sense. Natalie thought it was exhaustion.
At 6.20 pm and again at 6.25 pm, CC's mother telephoned CC, but she did not answer. CC called her back at 6.30 pm. Her mother was immediately worried because she sounded like she was "off with the fairies". Her voice sounded a lot younger than usual, like she was 11 or 12 years old, and quite high. CC asked her mother how her day was. This shocked her mother as she had attended a funeral of a very dear friend that day, with whom CC was also good friends. CC replied, "oh Mum, I'm sorry, oh I forgot about it" and "what's wrong with me". Her mother explained in her evidence, "that was very, very worrying to me because she knew we were going to Sydney for [the] funeral" and "she wasn't herself". When her mother said she was worried and would come over, CC said, "no mum, it's okay, look, I'm sorry, I haven't slept for three days, my hand is really, really sore" and "I've got a terrible migraine, I'm about to put [her daughter] to bed in about 30 minutes and then I'm going to bed myself".
At 6.33 pm, CC phoned the Appellant about the infection in her hand. MA was with the Appellant when CC called. She gave evidence that CC "was really concerned about how bad it was". CC said, "I think I've got a really bad infection". MA observed that she sounded "so groggy" and she could tell CC was worried. MA gave evidence that the Appellant used the same line he used to tell everybody: "it's not infected, it's just irritated". He told CC to come and see him the next day and he would "fix it up". MA said that CC was really worried and kept talking about it but the Appellant "had this way of sort of shutting you down kind of thing, and even she was sort of apologetic for worrying about it, and then she - he was like, "honestly it's fine, just come and see me tomorrow"" and "I'll fix it up".
During this conversation the Appellant told CC to "just take some Advil and it will be fine and come see me in the morning". CC queried whether she should take her new medication for her migraines and the Appellant said, "yeah, just take that, rest up, [CC] like I know what I'm doing." This was an upsetting conversation for MA as she could tell that CC was in "heaps of pain" and there was "something really wrong". The Appellant tried to tell MA that "she [CC] was probably just high or something".
After calling her mother, CC had dinner at the Shackleton's house. Wayne Shackleton saw her hand and said that it looked quite infected. He described it in this way, "[s]o it was like a hole sort of in her hand. It was like, a big scab sort of over it… [it was] a bit darker… quite red" and "quite scabby". Mr Shackleton recalled that she was going to have it looked at again the next day. The family went to roll newspapers, but CC said she was tired and went home at 7.30 pm.
Emily Shackleton observed that CC's hand did not get better after the Appellant tried to fix it, and that it "continued to be swollen, infected, very painful". She encouraged CC to get medical help. Emily recalled that the last time CC was able to roll newspapers was before the implant was inserted.
At some point that day, Mr O'Neill and CC spoke, potentially over text. CC said she felt terrible and was struggling. They spoke about her migraines and how the "infection was running through her body". Mr O'Neill encouraged her to go to the hospital or to see a doctor.

Wednesday 12 April 2017

At about 1 am on 12 April, CC went out onto the "back deck" of her home and spoke to Natalie Shackleton for approximately ten minutes. Their back decks were about 1.5 to 2 metres apart and they often communicated like this. Natalie Shackleton observed the following: "...she'd had a sleep. She felt a little better. She didn't sound as slurred, so I just took that as she was feeling better, but when she held her hand up, and I noticed that it was just very swollen. More swollen than I'd ever seen it before."
When CC held up her hand and showed it to Natalie she said "it was just so painful, and she just couldn't wait until 9 o'clock the next morning", when she had an appointment with the Appellant. Natalie offered to take her to the hospital because she was very worried about the size of her hand. She described it as being, "probably three times bigger than the other hand, swollen". But CC did not want to wake her daughter up and "cause a fuss". She said she could not drive because her hand was too sore (and Natalie could not drive either). CC said she would have a "couple of painkillers and go to bed".
In cross-examination the following portion of Natalie's statement was put to her about this last time she saw CC: "[CC] was okay. She was actually very clear in her speech, and it looked like she had no ill effects with her health. I had no reason to think that there was anything wrong with her".
It was suggested to her that the effect of her evidence was that she had no reason to think there was anything wrong with CC that last time she saw her. Natalie replied that her statement to police that CC had "no ill health effects" related to the fact that her speech had improved, and she was no longer slurring but she had major concerns about CC's hand, which seemed worse.
CC died sometime between 1.30 am and 6 am on 12 April.
At around 6 am on 12 April, CC's eight year old daughter found CC in the loungeroom. She was unable to wake her. She alerted Natalie, who investigated with Emily and contacted triple-0 at 6.24 am. Natalie said that CC "looked dead" and her face was black. Emily saw CC lying on the ground with her arm over her face. She said, "she was lifeless, she was gone". There was vomit on the ground next to her.
At about 6.14 am, Natalie called CC's mother and told her that CC was dead. CC's mother and her husband drove to the house and saw Natalie performing CPR on CC. CC's mother and her husband both took over and then the ambulance arrived. Her mother observed that CC's left ear was blue, her lips were blue, and her right hand and fingers were dark grey, nearly black.
Daniel Strong, a paramedic, arrived at 6.39 am and the paramedics took over CPR. CC was confirmed deceased at 7.10 am.
A bundle of photographs from the scene where CC's body was found show four unopened and two opened foil wrapped tablets of amoxicillin, which is an antibiotic. These were found on or near CC's body. PBS records and GP prescribing records indicated that CC had been prescribed antibiotics some time in January 2017 but collected the medication from the pharmacy the day before her death.
Four blister packets of Lyrica (pregabalin) were also found at CC's home. 11 tablets were missing from these packs. An information sheet for Lyrica was found on or near CC's body.
That morning, Emily Shackleton contacted people who needed to know about CC's death, including the Appellant. She said that the Appellant was disbelieving, and she had to tell him multiple times that CC had passed away. After telling him several times he continued not to believe her, so she hung up.
That day, the Appellant, MA and Mr Olteanu discussed CC's death at Transition. Mr Olteanu gave evidence that the Appellant said that he received "numerous" phone calls from CC the night before and they spoke on numerous occasions. She said that she felt ill, and her hand was sore. The Appellant said she sounded "wasted" and "off her face". He said that he did not know if she was on something and that she must have died of a drug overdose. He said that he told her to make sure her hand was clean and to take painkillers.

Events after 12 April 2017

MA said that she discussed CC's death with the Appellant a fair bit. He was really worried and "panicked". He asked, "what if it comes out that it's something I did[?]".
On 18 April 2017, Dr Brian Beer conducted an autopsy on CC. Urine and femoral blood samples collected during the autopsy were later analysed by Thi Yen Tran.
Mr O'Neill spoke to the Appellant in the car on the way to CC's funeral. MA was also in the car. The Appellant told him that her neighbours had given CC drugs for her migraines and possibly pain and that she had an overdose.

Tendency evidence

As stated above, some of the witnesses gave evidence of the Appellant's practices generally which the Crown relied upon as tendency evidence.
Mr Olteanu gave evidence that one of his clients, Isabel, had a bad interaction with the Appellant. The Appellant had convinced her to get a tattoo that she wanted removed cut out of her leg instead of being removed by laser. Isabel told Mr Olteanu that the Appellant injected her with local anaesthetic (asking her after he had injected it if she was allergic) and cut the tattoo out with a scalpel. Mr Olteanu emailed the Health Department and the owner of the premises where Transition operated (Lendlease), to inform them what the Appellant was doing but did not hear back.
MA gave evidence that she had concerns about the procedures the Appellant was doing. She said he would Google procedures and try to learn how to do it. She also said he would "muck around doing procedures" and make everything funny, including mid procedure, and "make inappropriate jokes about things". MA and others in the shop would talk clients out of procedures the Appellant had suggested and would say things to him like "you can't just learn how to do something like that [referring to online research]" or "you can't do that because of infection and sterilisation". The Appellant was doing procedures that were "too full on" such as cutting off people's fingers.
MA also gave evidence that the studio had a consent form for traditional ear piercings, tattoos and laser, however the Appellant specifically told MA and the staff not to have body modification clients fill it out as "he knew it was a grey area and he said, "You don't want to trace that"." She never heard the Appellant go over the risks of infection with body modification clients, he would just say "keep it clean".
Mr O'Neill also gave evidence of his concerns about the procedures the Appellant was doing. He said the biggest concern that he "put his foot down" on was when the Appellant was going to withdraw teeth from a young girl's mouth. He gave evidence that often young girls who had had a piercing would come back when it would "be on the edge of infection" or infected and the Appellant would tell them to do "his own version" of after care. The Appellant "would not advise to go to any kind of doctor or anything, he wouldn't advise even to use real piercing after care". He would not advise to go to a doctor or hospital because there were not many people trained in body modification and "it's a grey area of… legal stuff".
Mr O'Neill also described the Appellant's "spiel… about it not being infected it's just irritated… and then he would tell them his aftercare routine of if it is infected to do saline solutions might work."

Relationship of trust between CC and the Appellant

Several witnesses gave evidence about the relationship of trust between CC and the Appellant and the high regard that CC held him in.
Mr Olteanu described that there was "a large contingent of like, [the Appellant's] fans that used to hang out after hours" and CC was one of them.
MA gave evidence that CC wanted to "hang around" the Appellant a lot and observe his procedures because she was trying to get a job at Transition. The Appellant had told her she "need[ed] to earn it".
MA described the Appellant as having "all these little groupies that would do anything for him, like, any procedure he wanted, he - they would do. And he'd like, he'd be like sexual with them… so that they had a crush on him and… so they'd do whatever he wanted". CC was one of those "groupies" and MA observed him say sexualised things to her.
CC's mother also gave evidence that CC trusted the Appellant and said, "[t]o me, [the Appellant]'s a god" and "[h]e's the only one that I would ever let do anything like this to me". Her mother recounted that CC told her that the Appellant was to tattoo love hearts on her nipples. CC told her mother that the Appellant explained to her "[i]t's never been done in the world before, if you let me do it for you, I'll do it for you at a cheaper rate" and CC agreed.
Dr Willemse, CC's GP, also gave evidence of conversations he had with CC about her body modification as outlined below.

CC's medical history

CC regularly saw her local GP, Dr Willemse. He had been her treating doctor from 2012. She suffered from persistent daily migraines and associated anxiety. The trial judge summarised the medication he had prescribed CC over the years and his comments about this medication at PJ [452] as follows: "(1) Clomipranine hydrochloride 25 ml tablets and tricyclic antidepressants (TCA.). He commented that this is used for the treatment of obsessive compulsive disorder, panic disorder, major depressive disorder and chronic pain. In CC's case it was used for OCD as well as an adjunct for pain. (2) Endone 5 ml tablets. It is an opioid analgesic used for pain. CC was insistent that this was the only one of the medications to effectively manage her severe headaches reported Dr Willemse. (3) Imigran 20 mls nasal spray. The nasal spray was used for acute migraine attacks. (4) Imovane 7.5 ml tablets. Dr Willemse commented that these are a sedative hypnotic to aid with sleep disturbance and/or to improve sleep quality. (5) Norspan 20, 20 ml transdermal patch which was prescribed weekly. This was an opioid pain patch used to manage chronic pain. Dr Willemse observed that in CC's case this was used as a drastic measure to alleviate severe headaches. (6) Symbicort Rapihaler, a 200/6 metered dose inhaler was used as an asthma preventer. (7) Verapamil hydrochloride tablets. These were used as blood pressure medication used as prophylaxis for cluster headaches."
Dr Willemse was aware of CC's interest in body art as she had shown her body modifications to him and spoken about it. He was not aware of any previous or current infection. CC mentioned on a number of occasions that the person who did the procedures was "world class" and that she held him in the highest esteem. He gave this evidence on 21 September 2021 (in a passage extracted by the trial judge in her Honour's reasons): "I did express concern. I felt it was a fine line between judging her choices and expressing concerns on medical grounds and there were discussions about hygiene and safety mostly, but she always maintained that hygiene was very well maintained and the procedures were very safe."
Dr Willemse stated that CC was aware of the risks and "well aware" of signs of infection but she always maintained that hygiene (of the person conducting the procedures) was "very safe". He did not recall ever having a discussion with CC about alerting a medical professional to signs of infection and went on to state that "not alerting a medical professional to signs of infection would have been a deliberate decision". When asked to explain what he meant by this Dr Willemse explained that in his opinion CC would have been "well aware of signs of infection and if she had made the decision to not act on signs of an infection, that would have been a deliberate choice … an act of protecting the artist".
He gave this evidence as to how CC viewed the Appellant: "She spoke of him in glowing terms and I believe she would have done what she could do to protect his reputation and protect him from any harm resulting in anything that had happened to her."

Dr Ron Bezic

Dr Bezic gave evidence relevant to all three counts. He reviewed a number of documents, including photographs and videos, to provide a report in relation to CC. His evidence was relevant to whether the Appellant breached his duty of care to CC. The trial judge considered Dr Bezic's evidence in some detail at PJ [473]-[481]. It can be briefly summarised as follows.
Dr Bezic opined that the photos and videos of the second procedure on 10 April 2017 "clearly show a swollen and erythematous [red] hand". He observed that the Appellant opened the old incision and expressed a large amount of haemopurulent fluid (blood-stained pus), blood and pus from the wound. Haemopurulent fluid is indicative of infection, which would most likely have been caused by the implant. He maintained in cross-examination that the blood looked old which indicated a longer term infection.
He explained: "… beyond breaching the duty of care, the [Appellant] displayed a gross negligence on multiple levels. When [the Appellant] saw the deceased on 10 April at his shop, [CC] had obvious signs of acute infection, red swollen hands, a large amount of pus was drained from her incision site and [CC] experienced severe pain during and after the procedure. [The Appellant] should have referred the deceased to hospital immediately… there was an obvious infection and yet the [Appellant] was still persisting in almost in a denial saying, this is not an infection, it's just an irritation and meanwhile the victim's condition was getting worse."
Dr Bezic observed that there is an expectation by the patient of expertise with a practitioner and an element of trust. He noted that if the patient's condition was worsening but the patient had trust in the practitioner who was saying it would be "okay", that would cause her not to seek other advice.
He gave evidence that implant surgery is a much riskier proposition (than piercings) because inserting the implant into an enclosed space creates the chance for the bacteria to multiply in the one space, develop an abscess and then lead on to septicaemia. He observed that "if you're conducting implant surgery in the setting that this occurred in, eventually someone will develop the complications that [CC] did and [will] die from them". The risks of these procedures include infection, bleeding, allergic reactions, implant displacement, granuloma formulation, scarring and long term pain. A localised infection could become systemic if the bacteria multiply and begin to invade the bloodstream. They can infect the heart, kidney, liver and lungs and lead to organ damage and failure, septic shock and death.
Dr Bezic explained that in order to perform an implant procedure safely, the patient should be given local or general anaesthetic, prophylactic antibiotics and there should be antiseptic skin preparation, an enclosed sterile barrier around the surgical field, methods to stop bleeding and an antibiotic wash. The implant should be approved by the Therapeutic Goods Administration and come in sterile packaging and have an associated code which would be placed on the record. After the pocket is closed and the dressing is applied, the patient should be advised what to look out for, provided an emergency contact number and a follow-up visit should be arranged. There should be written records provided to the patient in case they later experience problems.
Dr Bezic was of the view that the Appellant likely worsened CC's condition by the procedure performed on 10 April 2017. His evidence was that by opening the pocket, expressing the fluid, blood and pus, and closing it again without attempting to wash it out and remove the implant, "that would encourage the bugs to spread invading the surrounding tissue which could cause - it would make it more likely for them to enter the blood stream." The direct manipulation of lifting the pocket and moving the implant would encourage the spread of "bugs" in the area and bloodstream. He also said that injecting local anaesthetic in an inflamed and infected area would have little anaesthetic effect which is why CC felt the injection to be painful.
Dr Bezic expressed the view that a surgeon in the situation of the Appellant on 10 April would normally remove the implant, wash the pocket out, start antibiotic treatment and take a sample of the pus to see what "bugs" were growing.
Dr Bezic opined that the Appellant's gross negligence was compounded when he sent CC home on 10 April 2017 and reassured her that nothing was wrong when she had come to see him twice that day. In his opinion, dealing with the situation was beyond the Appellant's competence and CC needed medical care. He opined that it would "ring alarm bells" for most medical practitioners and "at least trigger them to encourage the victim to seek medical intervention". Dr Bezic also noted that the Appellant had many opportunities where he could have altered what happened to CC in the numerous exchanges between them since the original procedure. Had CC received medical attention after the call to the Appellant the night before her death, Dr Bezic believed "she would have had a reasonable chance of being successfully treated". He agreed in cross-examination that it is hard to predict when medical intervention would have become futile but that the belief set out represented his opinion based on the evidence.

The trial judge's findings

The trial judge's reasons in relation to Count 3 can be found at PJ [345]-[687]. We have briefly summarised her Honour's findings in relation to the elements of the offence of manslaughter by criminal negligence.

Duty of care

Her Honour's findings regarding the Appellant's duty of care are at PJ [473]-[500]. The Appellant accepted at trial that he owed CC a duty of care; the only dispute was as to whether, as the Crown contended, it was similar to that owed by a medical doctor to a patient. The Appellant did not accept that it rose to that level. Her Honour had regard to the expert evidence of Dr Bezic who concluded that CC had a "de facto doctor/patient relationship" with the Appellant and concluded (at PJ [490]) that: "While the duty of care owed, is not exactly a doctor/patient relationship duty, it is very close to it. In offering the procedures that he did, he held himself out as being competent to perform those procedures. Exhibit H, as I have just referred, is evidence that he held out to the general public that he was fully qualified in those areas which are all important areas for hygiene, medical considerations and quality control." (Exhibit H was eight accreditation documents that hung in Transition.)
Her Honour went on to summarise her findings as to the Appellant's duty of care to CC at PJ [500] as follows: "In summary, therefore, the duty of care arose out of: (1) Approximately a two year relationship between the two, during which time a large number of procedures and implants were performed by the accused on the deceased. (2) The deceased trusted the accused regarding her bodyworks and aftercare, (evidence of XC, Shackleton and Gardner). (3) The procedure which occurred on 20 March 2017 was an inherently dangerous procedure, (Dr Bezic.) (4) The assumption by the accused of treatment of the apparent infection resulting from the original procedure. (5) The commercial arrangement between the deceased and the accused relating to payments for services rendered, (the deceased bank statement exhibit 47)."

Breach of duty of care

The trial judge summarised her Honour's findings as to the breach of the Appellant's duty of care to CC at PJ [516] as follows: "All of the actions of the accused from 20 March 2017 to CC's death represent a sequence of breaches of duty of care that he owed to her. In summary, those breaches were significant and ongoing and they are: (1) the procedure which occurred on 20 March 2017 was an inherently dangerous procedure; (2) the lack of care of the accused in treating the apparent infection when advised of same on 10 April 2017; (3) the events on 10 April 2017 when the wound was reopened injected with anaesthetic and repositioned, a further procedure occurred on that day which is a further breach; (4) the failure to refer the deceased to medical attention notwithstanding significant evidence of infection on 10 April 2017; and (5) the failure of the accused to refer the deceased to a doctor later on 11 April 2017 and the advice at that time to take her migraine medication."

Causation

The trial judge found that a significant or substantial cause of CC's death was sepsis. Her Honour found that the opinions of some forensic pathologists, that the cause of death was unascertained, did not detract from the opinions of Professor Ellis, Professor Duflou and Dr Goeman which her Honour accepted. Her Honour noted that Dr Goeman's evidence in particular was "supported by significant study, research and reasoning" and was "entirely acceptable." Her Honour found 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." On that basis, her Honour found that the factual evidence supported the expert opinion that CC's infection was likely extending beyond her hand within that time frame. The trial judge found that CC's hand infection developed into a "generalised blood infection resulting in death." Her Honour found that it was unnecessary to determine the time frame within which that generalised blood infection developed. Her Honour concluded, on the basis of the expert evidence, that sepsis was an operative "mechanism" of death and was in effect a substantial cause of death. Drug toxicity may have been a contributing factor, contributing to the speed of CC's demise. The trial judge explained that her Honour had: "… 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."
Largely by reason of those findings, the trial judge found that the grossly negligent acts and omissions of the Appellant "operated singularly or together as a substantial cause of harm suffered by the victim, ultimately her death." Ultimately, the trial judge found that a significant or substantial cause of CC's death was the hand infection which developed into septicaemia. The trial judge also found that drug toxicity, contributing to the speed of CC's demise, may have been a contributing cause of death.

Degree of negligence

Her Honour concluded that the Appellant's breach of his duty of care was so significant as to be considered gross and deserving of "a criminal response" (at PJ [684]) based on his conduct summarised at PJ [683] as follows: "(1) To insert the implant under the deceased's skin on or about 20 March 2017. (2) To do so in such circumstances that it was likely that the proper care was not taken to avoid future infection. (3) When advised that the hand was presenting as infected he did not refer the victim for proper medical attention. (4) 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. (5) 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. (6) 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."

Challenges to factual findings

Under grounds 3, 4, 8 and 9, the Appellant challenged a number of the factual findings made by the trial judge. As the High Court confirmed in Dansie at [7], it is not our task to determine whether there was error in the trial judge's factual findings; our task is to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the Appellant is guilty on Count 3. Given the complaints made under this ground, that inquiry necessarily includes a consideration of whether we are satisfied that the elements of the offence have been established beyond reasonable doubt; in particular causation. Although we do not propose to consider whether it was open to her Honour to make each of these disputed factual findings, we do propose to address the Appellant's submission that it was not open to her Honour to find (at PJ [680]) 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."
We have summarised the evidence going to this issue in some detail above. We are satisfied that it supports a finding that CC was visibly unwell in the days leading up to her death. The observations of friends and family do not support a finding that CC had sepsis at the time, but they do clearly establish that she was in a great deal of pain with an infected hand. The pain was contributing to her sleep deprivation and she was very worried about her hand.
The Appellant placed particular reliance on the evidence of CC's friend Ms Bergan that, when she saw her on 10 April 2017, she was "presenting at [sic] her normal happy self". But Ms Bergan's evidence was also that CC complained of pain and that her implant was not "feeling right". Further, Ms Bergan saw the bandage on her hand which had blood seeping through it. In the context of the other evidence given by Ms Bergan, her description of CC as being "her normal happy self" is not such as to reduce the force of the observations of the other witnesses.
The only other evidence inconsistent with a conclusion that CC was ill and in pain from her infected hand came from Professor Sturm and Dr Van Der Welt. Both medical practitioners saw CC on 11 April 2017 and did not see any evidence to suggest she was suffering from either a severe infection or sepsis such as fever, sweating or confusion. We will consider this evidence further below.
Although CC discussed pain management with both of those medical practitioners, her stated reason for doing so was in connection with her migraines rather than her hand. Given all of the evidence about her adoration of the Appellant, including from Dr Willemse (who she did not see that day), it could be expected that CC was still trying to protect the Appellant and would not have complained about her hand to them. Further, although neither medical practitioner described CC as sweating or with a temperature on 10 April 2017, neither did anybody else. There is no inconsistency necessarily in these accounts. The lay witnesses described her as being in pain and exhausted. The gravamen of the evidence of these doctors is that, as professionals, they would be more likely to detect sepsis than lay witnesses. We discuss the evidence as to the timing of the onset of sepsis further below.
Having examined this lay evidence closely we have arrived at the same conclusion as her Honour did. We are satisfied that the evidence establishes that CC was unwell and in pain with an infected hand in the days before her death and that on 11-12 April 2017 her presentation, in particular the exhaustion and other aspects noted by her friends and family, was consistent with her being very sick with an infection that was becoming uncontrolled. That is not to say that her presentation was only consistent with that cause. Rather, it is to conclude that her presentation was such that an infection that was becoming uncontrolled may have been causing her exhaustion and the other matters noted by those who spoke with or saw her.

Causation

As part of the ground contending that the manslaughter verdict is unreasonable, the Appellant placed particular emphasis on the expert evidence as to the cause of CC's death and the doubts said to be apparent in their language on this issue. It was contended that it was not open to her Honour to be satisfied beyond reasonable doubt that sepsis was a substantial or significant cause of CC's death.
On the evidence before the trial judge here, there were potentially four ways in which CC's death might have been caused. 1. By sepsis, and ultimately septic shock, which arose from the infection in CC's hand which, in turn, flowed from the Appellant's insertion of a silicon implant in the shape of a snowflake under the skin of CC's right hand on or around 20 March 2017 and/or from the repositioning of that implant by the Appellant on 10 April 2017 and/or from various omissions by the Appellant to provide necessary care in the circumstances. Dr Goeman explained that: "… sepsis is a well-recognised cause of sudden and unexpected death and that the entry of bacteria and/or their cell wall components, toxins or by-products into the bloodstream after penetration of what I'm calling there the tissue barrier, which in this case would potentially be the wall of the abscess in the hand is leading to profound and dysregulated host immune response producing shock and potentially death is a sudden event which can occur at an unpredictable time in the course of a localised infection." Her evidence was that 15 to 30% of hospitalised people with sepsis without septic shock will die despite intensive care and appropriate antibiotic treatment. Dr Goeman in oral evidence agreed with a definition of septic shock as a subset of sepsis in which underlying circulatory and cellular/metabolic abnormalities are profound enough to substantially increase mortality and that it involves a drop in blood pressure to a point that it is incompatible with life. 1. By reason of multi-drug toxicity, including CC's ingestion on the night of 11 April 2017 or the morning of 12 April 2017 of 11 Lyrica (pregabalin) tablets that were found missing from the blister pack prescribed to CC by Professor Sturm on 11 April 2017. There was evidence at trial that at the time it was not possible to test for the level of pregabalin in CC's blood. As to other drugs, toxicology evidence demonstrates that there were a variety of drugs present in CC's body at the time of her death, including clomipramine, oxymorphone, 7-aminoclonazepam (a metabolite of clonazepam), mirtazapine, oxycodone and zopiclone. 2. By reason of the combined effect of sepsis and multi-drug toxicity. 3. From an unascertained cause.
The analysis of cause of death here was complicated by the fact that the autopsy was not performed until 18 April 2017, six days after CC died, and post-mortem blood sampling was delayed by six days. There was thus a possibility, addressed in the expert evidence, that delay and refrigeration could have impacted upon the reliability of blood cultures, markers of inflammation, and toxicology findings.
In light of the Appellant's grounds of appeal, it is necessary to consider the evidence going to each of these potential causes of CC's death in some detail.

Whether CC had sepsis or septic shock

The evidence as to whether CC had sepsis came from Dr Goeman and Professor Paterson, consultant infectious diseases physicians instructed by the Crown and the Appellant respectively (infectious diseases experts), and from forensic pathologists, Dr Beer (who performed the autopsy for the coroner), Professor Duflou, Dr Brouwer, Professor Ellis, all instructed by the Crown, and Dr Collins, instructed by the Appellant (forensic pathologists). Both the infectious diseases experts and the forensic pathologists had the necessary expertise to provide expert evidence on the question of whether CC had sepsis in the period leading up to her death. The infectious diseases experts necessarily had greater expertise in observing the development and signs of sepsis ante-mortem. They therefore had particular expertise on the question of whether sepsis could develop to the point of septic shock, or be fatal, within a short time frame and whether or not the particular findings here were or were not consistent with a diagnosis of sepsis, albeit that they did not have the same expertise as the forensic pathologists in interpreting findings made post-mortem and the issue of cause of death.
As the trial judge identified, for the purposes of his report Professor Paterson had been given limited primary information. This means that his evidence must be considered with some caution to the extent that it is based upon what was or was not observed by Dr Van Der Walt and Professor Sturm on 11 April 2017 and not upon the evidence as to the observations of all who saw and spoke to CC in the period leading up to her death. Some of the primary evidence as to this was put to him in cross-examination and did not cause him to change his "perception of things". Notwithstanding this his evidence has to be assessed in the context of our finding, set out above, that CC's presentation on 11-12 April 2017 was consistent with her having an infection that was becoming uncontrolled. Professor Paterson's opinion also has to be considered in the context of his evidence that, whilst he had seen cases of hand infection leading to sepsis, the only case of hand infection leading to death had involved a hand infection which spread and then involved necrotising fasciitis. His evidence that overwhelming sepsis developing in a short period of time is "not a situation that I observe in people who have hand infections" has to be seen in that context, namely that he had no clinical experience of seeing a hand infection develop (without necrotising fasciitis) into fatal sepsis or septic shock at all. It also colours his significant reliance upon what he thought was a "very unlikely circumstance that a person was walking and talking one day and dead from sepsis the next".
Further, with both Dr Goeman and Professor Paterson, it is necessary when considering their evidence to bear in mind that their experience is with the living not the dead. This means that their evidence has to be considered together with that of the forensic pathologists when considering whether the evidence as a whole supported a conclusion that sepsis was a substantial or significant cause of death.
As to Dr Collins, the trial judge found that his experience in recent years of examining autopsy findings had been more limited than that of Professor Duflou or Professor Ellis. Dr Collins' evidence was that he only performed about half a dozen autopsies a year, and that these were private autopsies usually performed at the request of an individual in relation to a coronial investigation. The large amount of his experience undertaking autopsies was gained in the period up to the early 1980s. Dr Collins could not recall being involved in any diagnosis of a sepsis related death since 2016. As the primary judge found, this was a relevant period as in 2016 there was a new definition of sepsis.
There was no real dispute that CC had a substantial localised hand infection at the time of her death. In support of this conclusion Dr Goeman relied on: 1. Witness statements reporting pain, swelling, redness and discharge of pus in the days prior to death; 2. Ulceration with surrounding erythema, swelling and golden ooze/crust overlying the snowflake implant seen in two ante-mortem photographs (one photograph was captured on 8 April 2017 and it is unclear when the other photograph was captured though both show the implant site), crime scene photographs and autopsy photographs; and 3. The autopsy findings of Dr Beer of red induration consistent with infection on the back of the hand, the fascia surrounding the implant and soft tissues showing moderate pus and abscess formation and the presence of extensive neutrophilic inflammation with abscess formation in the soft tissues of the back of the hand on microscopic examination.
Whilst Dr Goeman acknowledged that the presence of localised infection is neither a necessary nor a sufficient condition for the presence of sepsis, she identified that sepsis is a well-recognised and not uncommon complication of localised bacterial infections. In her report dated 11 August 2021 Dr Goeman set out her opinion that: "… it is reasonably probable, but by no means certain, that the deceased had sepsis at the time of death on the basis of: the presence of risk factors for sepsis and sepsis-related death; the presence of a significant infection in the back of her hand (with the retained implant acting as a nidus for the persistence of the infection despite antibiotics); the presence of systemic inflammation evidenced by the neutrophils in the small vessels of the heart and lungs (included in the SIRS criteria [systemic inflammatory response syndrome criteria, being increased heart rate, raised white cell count in the peripheral blood, which includes neutrophilia, increased respiratory rate and fever]), the raised CRP [C-reactive protein] and the raised procalcitonin (which were likely present at significantly higher levels at the time of death, given the long elapsed time between death and the performance of the autopsy and collection of samples); and the plausibility of rapid demise from sepsis from an abscess on her hand, over a period of up to 5 hours, even without obvious warning symptoms or necrotising infection. In reaching this conclusion I acknowledge the following factors are against the presence of sepsis…the lack of features of sepsis reported to and noticed by two medical practitioners in the day before death (and the difference between the witness accounts of these two doctors and those of [CC's] mother, neighbour and brother); the lack of necrotising infection; the negative post mortem blood and spleen cultures collected 6 days before post mortem; the apparent lack of fever and the SOFA criteria [sequential (sepsis-related) organ failure assessment, including respiration, platelet count, liver function, cardiovascular status, central nervous system function and renal function] until at least 5 hours before death; and the lack of ischaemic necrosis of the liver and kidneys on microscopy."
Dr Goeman explained that her use of the word "probable" in setting out her conclusion reflected the three tiers of probability considered in medicine, namely possible, probable and confirmed. If she had seen CC before she died and she had the full spectrum of SOFA criteria or if there was a positive blood culture, that would have tipped her "into the confirmed category or at least to be able to use a phrase like "extremely likely" or "confirmed"." Her use of the term "reasonably probable" reflected: "I guess, the strength in [her] view of the factors in favour of the presence of sepsis in the deceased at the time of death."
She said that it is usual but not invariable that a person would have a prodrome (symptom indicating onset) prior to severe septic deterioration but that she more commonly sees "surprising or fulminant sepsis that we weren't suspecting" in younger people as they can physiologically hold their own until suddenly they crash. There were also anti-pyretic agents (meaning drugs to lower temperature) found at the crime scene which may have blunted CC's febrile response such that she may not have felt feverish or it may not have been obvious. Her opinion as to whether CC had septic shock was that: "… there is a significant likelihood that septic shock supervened in those hours between 1.30 and 6am where [sic] her body was discovered."
Dr Goeman's evidence was that sepsis is a well-recognised cause of sudden and unexpected death. In oral evidence she explained that: "… the timing of the onset of sepsis relative to a localised infection can be very unpredictable because it reflects a moment in time when the bacteria or their products enter the blood stream and when the cascades of the body's immune response begin, can be very sudden, unpredictable and can occur very quickly."
Dr Collins' evidence was also that death by sepsis can occur very rapidly and that all the histological findings that are commonly looked at under the microscope take some hours to develop.
Dr Goeman explained that none of the factors she had identified were determinative and that there is no validated gold standard for the diagnosis of sepsis, either ante-mortem or post-mortem. Even ante-mortem a clinical diagnosis of sepsis is difficult because clinical signs of sepsis often overlap with other non-infectious causes of systemic inflammation. A number of the signs of sepsis are not directly measurable post-mortem. Dr Beer's evidence, to similar effect, was that: "From a post-mortem viewpoint we actually have not a lot in the way that we can actually use because many of the criteria for diagnosing sepsis are clinical; you need a living patient to work out whether they're breathing, what sort of heart rate they've got et cetera."
As to the matters weighing against the presence of sepsis, Dr Goeman said that one would not necessarily expect to find ischaemic changes on microscopic examination of organs such as the liver or kidneys with a very short time interval between the onset of septic shock and death. This is because ischaemic changes are consequent upon lack of blood flow to the critical organs, which is dependent upon the period of low blood pressure associated with septic shock. Nor was it necessary for necrotising fasciitis to be present to have sepsis from a skin and soft tissue infection. Professor Ellis' evidence was also that generalised ischemia will not cause visible changes in the liver and kidneys in the short time frame of this particular case. Dr Collins similarly agreed that it takes time for blood pressure related observations to be evident.
As for the negative blood and spleen cultures, in Dr Goeman's opinion these are not particularly significant in terms of ruling out sepsis. The negative blood culture could have been contributed to by the antibiotics that CC was taking at the time. In addition, only 3 millilitres (mL) of blood were cultured and the recommendation for patients in a hospital setting is for two sets of blood cultures of 60 mL of blood. The period of six days between CC's death and the collection of blood taken at autopsy, and the fact that her body was refrigerated, would also "significantly impact the likelihood of us yielding the causative organism from a blood culture collected from her." That opinion was supported by Dr Beer. His evidence was that organisms become less viable with time so that the period between death and the autopsy was the more relevant factor explaining the lack of any positive blood culture. Refrigeration also "doesn't help matters". Professor Ellis also said in his report that a negative blood culture is a fairly common observation and "almost certainly" relates to the poor viability of bacteria in post-mortem blood especially where the body has been refrigerated for some period prior to autopsy examination (as occurred in this case). Dr Collins agreed that a negative blood culture is not essential in the diagnosis of sepsis and that antibiotics and the delay in harvesting the blood sample could have contributed to the negative blood culture in this case. Professor Paterson said that the absence of a positive blood culture six days post death did not rule out sepsis, having regard to the volume of blood, the prior antibiotics and possibly also the duration. He accepted that the period of delay before the blood was taken "possibly … would have an additional effect" but he didn't know "for certain about that". He said that he would defer to the opinion of a microbiologist who works closely with a forensic laboratory as to the impact of refrigeration.
As to the matters weighing in favour of a diagnosis of sepsis, Dr Goeman's evidence was that the level of procalcitonin detected in CC's blood about 135 hours after her death was 2.35 nanograms per millilitre (ng/mL), and the likelihood is that it would have been considerably higher than that at the time of death. A cut-off of 2.0 ng/mL in living patients has been recommended to discriminate patients with sepsis from other inflammatory conditions. That cut-off has also been proposed for use as guidance in a post-mortem setting. This cut-off is not definitive, but Dr Goeman's evidence was that: "… a level of greater than 1.5 is generally not considered to be likely to be due to localised infection alone."
Dr Beer also gave evidence that localised infection "may" account for the procalcitonin, but "you start to get a bit suspicious because it's just getting a bit too high." Dr Brouwer noted that there was some evidence that procalcitonin levels were stable post-mortem but that there was always individual variability. She agreed that if the procalcitonin level were to vary over time, it would go down which would make the procalcitonin observations more certain as a marker of sepsis. Professor Ellis gave evidence that it is not known what happens to procalcitonin levels after death.
Dr Goeman's view was that C-reactive protein (CRP), which was found at a level of 33 mg/L, was raised and was likely at a higher level at the time of death. Raised CRP is a non-specific marker for immune system activation (Dr Brouwer also gave evidence that there is a definite decrease in the value of CRP post-mortem). It is an indicator of sepsis. However, it is also consistent with other infective or inflammatory processes. Dr Beer's opinion was that the raised CRP could be consequent upon localised infection.
Like Dr Goeman, Professor Paterson did not offer any "absolute opinion" as to cause of death given that he is not a forensic pathologist. He considered that there was no doubt that there was infection at the site of the insertion of the snowflake. However, he said that he was unable to state "conclusively" that CC had sepsis. His evidence was that: "… this situation is really quite different from what I've observed frequently. And, that sort of, again, is what's sort of making me think, well, is this a lay down mesire [sic] that this person died from sepsis, or is it that there's doubt? And, you know, I have to conclude that I have doubt. She may have died of sepsis; I'm certainly not denying that. But, I think it's a cloudy situation with a lot of grey."
Professor Paterson relied heavily in this regard upon the failure of Professor Sturm or Dr Van Der Walt to identify fever, rigor, hypothermia, new onset confusion, decreased consciousness or pain during CC's attendances on them on 11 April 2017. This led Professor Paterson to conclude that it was "highly unlikely" that sepsis was present at that time. He considered that a reasonable person in those attendances would have talked about "other significant symptoms" in the context of talking about their headaches and would have said they were feeling "hot and bothered" if they had a fever. Professor Paterson thought it very unlikely that CC had a fever that was not identified by one of those doctors as it was highly likely that she would have told one of them that she had a fever. He did not think that paracetamol or anti-inflammatory medication would completely knock the fever away if CC had sepsis, even though it may mask a fever. He said that a reasonable doctor would have recognised that someone is looking really sick.
As set out above, when Professor Paterson prepared his reports, and when he gave his oral evidence in chief, he was not aware of the evidence of Natalie Shackleton, CC's mother or brother. He was taken to limited aspects of that evidence in cross-examination, but was not taken to, for example, the evidence of CC's mother that she sounded like she was "away with the fairies" and spoke in a childlike voice at around 6.30 pm on 11 April 2017. Although he was told that during the phone call between CC and the Appellant at 6.33 pm on 11 April 2017 that CC sounded "very groggy" and complained that she thought she had a really bad infection, Professor Paterson was not taken to MA's evidence during the call that she could tell that CC was in heaps of pain and there was something really wrong. Professor Paterson may have dismissed this evidence as being of no consequence to his opinion, but the fact that he did not have regard to this evidence in reaching his conclusions means that those conclusions have to be treated with some caution. His opinion also rested heavily upon assumptions as to what CC would have said to Dr Van Der Walt and Professor Sturm if she had been significantly unwell or in significant pain from her hand, and upon what those doctors would have noticed during the course of the consultations. The fallibility of those assumptions, particularly in the context of Dr Willemse's evidence that he believed that CC would have done what she could to protect the Appellant from any harm resulting from anything that had happened to her, again requires that Professor Paterson's conclusions are treated with some caution.
When asked about the possibility of rapid onset of a dysregulated host response in the period between when CC saw the two doctors on 11 April 2017 and her death early on 12 April 2017, Professor Paterson gave evidence that: "That - I mean, that's sort of the crucial point here that, you know, is it reasonable to expect that from walking and talking on the 11th to having died on the morning of the 12th, you know, was there such overwhelming sepsis in that short period of time? And, in my opinion, and with my experience with hand infections, that's very, very unlikely to have occurred. Now, I'm not saying it's impossible, but it's - in my mind, it's not a situation that I observe in people who have hand infections."
His view was that it was "quite unlikely" that a person dies of sepsis when "things have been going on" only for three or four hours. That evidence has to be considered in the context of Professor Paterson's limited experience of death consequential upon sepsis developing from a hand infection.
Professor Paterson also relied upon the lack of ischaemic changes in the liver and kidneys which would be expected if there were a prolonged period of low blood pressure. As to this, however, he said that he would defer to Dr Beer, forensic pathologist, as to whether or not histological (ischaemic) changes would be expected if sepsis came on during the early hours of 12 April 2017. As to this, Dr Beer's evidence was that this depended upon how quickly the septic shock came on, and he would defer to the clinicians to make an assessment of how quickly hypotension and hypertensive shock can come on and cause death with sepsis. Professor Paterson also placed some reliance upon there being no positive blood culture which was not decisive but weighed against a conclusion that CC died of sepsis. He also identified pointers for a diagnosis of sepsis, including the local infection, neutrophils in the small vessels of the heart and elevated procalcitonin, albeit that the neutrophils could have been contributed to by the infection in CC's hand and what he considered was infection in her lungs. In his opinion none of these factors for or against the diagnosis of sepsis are, by themselves, conclusive. Overall, he said: "I think there's a lot of different things into this equation and there are things for and things against."
As for the forensic pathologists, Professor Ellis agreed that raised CRP and procalcitonin and the presence of neutrophils in significant quantities was evidence to strongly suggest that CC's infection had spread beyond the hand. Professor Ellis accepted that there was a level of uncertainty associated with a diagnosis of sepsis given that the observations "tend to be inferential rather than probative." In this context he added: "So, you know, I think it's reasonable to say, yeah, well, there is some doubt then it's not unreasonable to have that doubt."
He later said that he could not absolutely exclude that sepsis played no contribution to death, but he thinks it was most likely that there was sepsis.
Professor Duflou also considered that it was very likely that CC had sepsis at the time of death, although he accepted that it was a possibility that there was uncertainty around that diagnosis.
Dr Beer was somewhat equivocal as to whether CC had sepsis at the time of her death. He said that based upon the levels of procalcitonin this was "definitely … a possibility/slight probability … All I'm saying is that it is in the middle in terms of its level of certainty."
Dr Collins' evidence was that: "In the absence of clinical findings, it is difficult to be definitive in this regard. But I think, having regard to the inflammatory markers which have been identified, there is a reasonable possibility that at or about the time of this woman's death she was suffering from an episode of sepsis or septicaemia, but I am in no way inclined that this is at the upper end of the spectrum; in other words, I don't think one can say that it was septic shock."
As is apparent from the summary of the voluminous expert evidence set out above, there were a range of views expressed, and the various experts expressed themselves with different levels of certainty. It is clear from this evidence, however, that the different expressions used by the experts to convey their opinions as to whether CC had sepsis or septic shock at the time of her death were, to some extent, dependent upon their own characterisation of levels of probability in the context of their professional experience, upon the clinical difficulty in diagnosing sepsis and septic shock, particularly when ante-mortem clinical observations are not available, and upon the extent of their clinical experience. The task for this Court, is to consider whether, having regard to the evidence as a whole, it was open to conclude that CC had sepsis or septic shock at the time of her death. The fact that the experts were not themselves comfortable reaching a conclusion at that threshold does not preclude the Court being so satisfied. Consideration of such a standard is not something which would be encountered within the role of a medical professional. It is thus readily explicable why medical experts would, as in this case, cavil with expressing such a conclusion.
As to the potential for sepsis to be fatal, Dr Goeman's evidence was that sepsis without shock in a hospitalised person, and despite intensive care and appropriate antibiotic treatment, has mortality rates that are variable but somewhere between 15 and 30%. The mechanism of death is that in trying to fight off infection the body's immune system damages its own organs and tissues. Once one gets into the realm of septic shock, there is a precipitous and quick drop in blood pressure to the point that it is incompatible with life. Dr Goeman's evidence was that there is a significant increase in mortality with every hour of delay between onset of septic shock and the administration of critical care, and that sepsis can be "rapidly fatal". Professor Duflou also gave evidence that sepsis "can be expected to cause death in the absence of expert medical treatment". Professor Ellis described "the known serious and sometimes fatal consequences of this condition [sepsis]."
Professor Paterson agreed that septic shock had a mortality rate of greater than 30% for hospitalised patients as a general proposition.

Was sepsis a cause of death?

Dr Goeman did not directly address cause of death. However, her evidence supports a conclusion that sepsis and septic shock was a cause of death to the extent that she considered that there was a significant likelihood that CC was in a state of septic shock between 1.30 am and 6 am. That evidence, combined with her evidence as to the likelihood of septic shock being fatal in the absence of any medical intervention, supports a conclusion that sepsis was a cause of CC's death.
As to cause of death, Professor Paterson said: "So, putting all of this together, you know, if I we know that in clinical medicine, and particularly in this circumstance where an autopsy was performed six days after a person died, you know, we could not be 100% categorical. And, you know, if I had thought this person had died of sepsis, I would sort of have put that in, at least in my mind, more than 90% probability that they died of sepsis. However, looking at the evidence, in my mind, its more in a 50/50 sort of split. She could well have died of sepsis, but equally, she may have from other things. And, I don't believe that the evidence in support of sepsis as a cause of death is so overwhelming that I'm in that sort of, in my mind, a 90% likelihood of it being the cause of death. I'm much more equivocal as to whether that was the case."
For the reasons set out above, that conclusion has to be considered with some caution as it was based upon his own assumptions as to how CC was presenting in the period leading up to her death, as to what a reasonable person would have said during the medical attendances on 11 April 2017, and as to what the doctors would have identified during those attendances.
The forensic pathologists addressed the issue of whether sepsis was a cause of CC's death: 1. Dr Beer gave evidence that there were features suggestive of sepsis as the cause of death based on probability grounds but these "do not meet the beyond reasonable doubt standards required of a criminal trial." For that reason, he altered his previous cause of death from sepsis to "unascertained." He said in oral evidence that a septic mechanism of death is "a possibility/probable mechanism of death but by no means certain." It was "in the middle in terms of its level of certainty." 2. Professor Duflou's opinion was that the most probable cause of death was sepsis as a result of an infected site of body art implant. 3. Dr Brouwer's evidence was that it was reasonably possible that CC may have died of sepsis. However, given the difficulty in making a post-mortem diagnosis of sepsis, one cannot with certainty say that there's sufficient post-mortem evidence of sepsis. This was because all of the post-mortem findings could, in her view, be explained by an immune response to a localised infection in the hand. Thus, whilst it was reasonably possible that CC died of sepsis, it was not a diagnosis of certainty. Her doubt arose from the observations of the doctors, the lack of a gold standard for post-mortem diagnosis of sepsis and the potential contribution of multi-drug toxicity. Dr Brouwer had relied in part upon the absence of observations of symptoms by Dr Van Der Walt and Professor Sturm, but in her oral evidence she acknowledged that it may be unnecessary to consider those observations if, as Dr Goeman said, sepsis could have occurred within a five hour period prior to CC's demise. 4. Professor Ellis' evidence was that the principal cause of death was sepsis. He could not exclude drugs from contributing to the negative effects of what he believed to be sepsis. He could not quantitate which of sepsis or multi-drug toxicity was "more causative of death" but he believed that the infection was the primary cause of death. He had earlier characterised sepsis as the "main cause of death" on the basis of his view as to the strength of the evidence that CC had sepsis. 5. Dr Collins' opinion was that because of the considerable difficulties associated with interpretation of the autopsy findings the most appropriate cause of death was "undetermined" because he was not able to say what the sole, direct cause of death was as between sepsis and multi-drug toxicity. He was unable to say whether or not sepsis was a "substantial and significant" cause of CC's death. Whilst Dr Collins here referred to a "substantial and significant" cause and not a "substantial or significant" cause, we would infer that his evidence would have been the same if he had been addressing the language derived from Swan. That there were features in the autopsy which were diagnostic of sepsis, that did not mean to say that this progressed to septic shock. Dr Collins did not exclude a diagnosis of life-threatening sepsis but on the materials he had he was not prepared to say that it was the most likely cause of death.
It is thus apparent that, of the five forensic pathologists, four considered that there was some probability of sepsis being a cause of death, but they differed as to the probability that they would assign to that cause. Dr Beer said it was in the middle in terms of its certainty, Professor Duflou said it was the most probable cause, Dr Brouwer said it was reasonably possible but was not a diagnosis of certainty and Professor Ellis said it was the principal or primary cause of death. Dr Collins, by contrast, did not exclude it as the cause of death but was not prepared to say it was the most likely cause of death. That evidence had to be considered in the context of the evidence of Dr Goeman as to the speed with which septic shock can develop and the likelihood of death if this occurred.

Drug toxicity as a cause of death

Two Certificates of Analysis and one Supplementary Certificate were provided by Thi Yen Tran pursuant to s 177 of the Evidence Act 1995 (NSW). The results of the quantitative tests for the preserved blood samples were as follows: "7-Aminoclonazepam 0.07 mg/L Alcohol Not detected Clomipramine 0.64 mg/L Codeine (Free) 0.11 mg/L Codeine-6-glucuronide 0.14 mg/L Hydrocodone ˂0.005 mg/L Mirtazapine 0.35 mg/L Morphine (free) 0.009 mg/L Morphine-3-glucuronide 0.02 mg/L Oxycodone 0.17 mg/L Oxymorphone 0.02 mg/L Verapamil 0.08 mg/L Zopiclone 0.08 mg/L".
The results of screening tests were as follows: "Amphetamines (DL: 002 mg/L) ND Benzodiazepines (DL: 0.005 mg/L) Detected Cannabinoids (DL: 0.01 mg/L) ND Cocaine metabolite (DL: 0.05 mg/L) ND Iburpofen Detected LC QTOF MS SCREEN Detected Opiates (DL: 0.02 mg/L) Detected Paracetamol Detected 6-Acetylcodeine (DL: 0.002 mg/L) ND 6-Monoacetylmorphine (DL: 0.002 mg/L) ND Burpenorphine (DL: 0.005 mg/L) ND".
Results of quantitative tests in the Supplementary Certificate were as follows: "Ibuprofen 22mg/L Paracetamol 24 mg/L".
The relevance of these toxicological findings was addressed by Dr Fu and Mr Farrar and also by the forensic pathologists. The trial judge found that Mr Farrar was not qualified to address cause of death and that his report suffered from a lack of rigour. Her Honour also found that he was belligerent and unpersuasive in his evidence, especially when challenged in relation to the substance of his findings. Ultimately, the trial judge concluded that his evidence was of little use to the Court and "cannot be accepted". Notwithstanding the trial judge's conclusion, we have nonetheless considered Mr Farrar's opinions to the extent that they fall within his expertise as a pharmacologist. As was conceded by Mr Tedeschi, Mr Farrar did not have the expertise to comment upon cause of death, albeit that he did have the expertise to comment upon what is or is not a fatal dose of a drug or combination of drugs. We consider that in this case we are in as good a position as the trial judge to assess what was or was not beyond Mr Farrar's expertise and the extent to which his opinions persuade. We have thus weighed Mr Farrar's evidence as to matters properly within the expertise of a pharmacologist in the balance in considering the grounds of appeal.
Dr Fu's evidence was that there was possible post-mortem redistribution of drugs. This refers to a mechanism whereby drugs which were present within the tissues of a living person, after death, move to the "blood compartment". This leads to those drugs appearing in post-mortem blood toxicology reports at a higher level than had that analysis been performed whilst the person was alive. Dr Fu's evidence was that post-mortem distribution gives rise to increased levels reported on toxicological analysis in "maybe about 70 to 80%" of cases and in a minor proportion of cases, "20 to 30%", post-mortem redistribution decreases those levels, Dr Fu's evidence was that in this case it was likely that post-mortem redistribution was "not that significant." Mr Farrar's evidence was that a blood sample taken post-mortem, several days after a person has died, is probably not going to precisely reflect the concentration of drugs in a person's circulation ante-mortem.
Dr Fu's evidence was that the level of 7-aminoclonazepam detected in CC's blood, 0.07 mg/L, was within the therapeutic range. 7-aminoclonazepam is a metabolite of clonazepam. This indicated that CC had administered an unknown amount of clonazepam, prescribed in the treatment of anxiety disorders and epilepsy. These metabolites have some sedating effect indicating that at the time of her death CC may have been slightly sedated by 7-aminoclonazepam. The effect would have depended upon her tolerance. Mirtazapine, an antidepressant also identified in the toxicology report, would likely have been moderately sedating and zopiclone, which was reported on toxicology at a level slightly greater than the reported therapeutic level, would have made CC "well sedated", both depending upon her experience with these drugs. There was also a low level of morphine (present as a metabolite of codeine), ibuprofen and paracetamol reported on toxicology. These are all pain killers and morphine also has a strong sedating effect. Codeine-6-glucuronide, the major active metabolite of codeine and which was also identified in the toxicology report, has a mild sedating effect. As to the zopiclone, Mr Farrar considered that it would have been present at higher concentrations than was reported in the toxicology report.
Dr Fu said that the codeine, morphine, oxycodone and oxymorphone would have had a cumulative effect because they work on the same opioid receptors. The zopiclone had a different mechanism and Dr Fu did not know whether or not it would have a cumulative effect. Mr Farrar's evidence was that in combination, the respiratory depressant effect of the opiates and opioids add to "quite a significant degree of activity" and the 7-aminoclonazepam increases the respiratory depressant effects of those drugs.
The level of clomipramine, 0.64 mg/L, was at the high end of the toxic range and at the lower end of the fatal range for this particular drug. Clomipramine is prescribed for major depression, obsessive compulsive disorder, phobias in adults and cataplexy associated with narcolepsy. Dr Fu gave evidence that she was aware of one case in the literature of a fatality where the level of clomipramine was 0.54 mg/L. Her evidence was that at this level CC would have been "significantly sedated" by clomipramine at the time of death and that clomipramine would have impaired her significantly. CC had been prescribed clomipramine on seven occasions since 1 October 2015, with a starting dose of 25 mg progressing to 100 mg at the time of her death. Having regard to this evidence, Dr Fu said that there was a possibility that this caused CC's death but it was unlikely because she had such high tolerance. Mr Farrar's evidence was that there is a metabolite of clomipramine which is also toxic and which has a significantly longer half-life than clomipramine itself and is thus usually present in significantly higher concentrations than the parent drug. This was not tested for in this case. Thus, it could not be known whether or not this was present at high levels in CC's blood at the time of death. Both clomipramine and its metabolite can cause cardiac arrhythmias, and both are respiratory depressant drugs.
The level of oxycodone reported on toxicology, 0.17 mg/L, was approximately two times the reported therapeutic level and slightly less than the reported toxic level. Dr Fu's evidence was that this would have "significantly reduced pain sensation", and depending upon CC's tolerance, may have moderately to significantly affected CC at the time of her death. CC had been prescribed Endone (oxycodone) since 27 January 2016, which would give some tolerance. Mr Farrar's evidence was that oxycodone on its own was not a concern.
The level of oxymorphone, 0.02 mg/L, was at the lower end of reported oxymorphone levels in fatalities and in most cases of fatality some other drug was also present. In one text, the lethal range was put at 0.03 to 0.08 mg/L. Oxymorphone is a very strong pain killer and would have significantly reduced CC's pain sensation. Dr Fu considered that the oxymorphone detected in CC's blood was likely a metabolite of the oxycodone, thus if CC had tolerance to oxycodone that would apply also to the oxymorphone. The oxymorphone would be expected to have had a "slightly sedating" effect. She said it was "most unlikely this drug caused her death."
No testing was available for Lyrica (pregabalin). CC appears to have taken 11 tablets containing 75 mg of pregabalin on 11-12 April 2017. Pregabalin has some sedative effect according to Dr Fu's evidence. She said that, on the assumption that CC took all the 11 tablets at once, the level of pregabalin in CC's blood would be in the lower end of the toxic range but not in the lethal range. In his oral evidence, Mr Farrar stated that if CC had consumed 11 pregabalin tablets this would have been substantial, and in combination with other substances consumed, Mr Farrar identified that it would not be surprising if that caused a "terrible degree of respiratory-depressant activity."
Dr Fu's opinion was that: "… the potentially lethal levels of clomipramine and oxymorphone (which have been reported in fatalities), in addition to the sedative effects of 7-aminoclonazepam, mirtazapine, oxycodone, oxymorphone and zoplicone, may have been a contributory factor to [CC's] death, and the level of these drugs' contribution to [CC's] death is depending on her experience with these drugs."
As to the mechanism by which that contribution could happen, Dr Fu's evidence was that: "I would believe she was probably sedated significantly at the time, so she probably sleep or there was - so that's she didn't notice heart or something wrong, so that mean this contributing for her death."
Dr Fu's evidence was that it was also possible that there was "combination toxicity" but she did not know.
Mr Farrar's opinion, excluding his opinion as to cause of death in this case, was that there was insufficient information to make a toxicological analysis of the effect of the drugs but that the combination of drugs consumed would lead to very substantial respiratory depressant activity.
Dr Beer's evidence was that clomipramine has the possibility of causing a cardiac arrhythmia. He could not completely exclude the possibility of a cardiac arrhythmia, but he considered the risk of that to be very low and not a probable mechanism of death. He felt that the levels identified in the toxicology report were likely due to post-mortem redistribution from tissues into the blood compartment. Dr Beer's opinion was that if there was an arrhythmia, that would have been a sole cause of death as it would not have operated as a contributing cause.
Dr Beer's opinion was that drug toxicity either by sedation causing reduced respiratory drive or by cardiac arrhythmia was not a sole cause of death. He could not exclude the possibility that cardiac arrhythmia secondary to clomipramine was the cause of death but said that he considered that was unlikely. He said he could not exclude multi-drug toxicity as a primary cause of death "with absolute [100%] certainty" but would "certainly put that proposition down towards the very low end in terms of what has possibly gone on in terms of primary cause of death." In his report dated 7 July 2021 he stated that it was not possible to exclude multi-drug toxicity in a "multifactorial mechanism of death". He was asked about this in cross-examination: "Q. All right, so putting clomipramine to one side, or the arrhythmia to one side, it's entirely possible is it not, in your view, that mixed drug toxicity, the sedative effects of that, made a contribution to death in this case? A. It may have done, but that's what I've stated in my report. Q. Is it correct to say that you cannot proffer any opinion as to the extent of that contribution? A. If it had a contribution I'd think it would be a more minor one. I honestly don't - as a practising pathologist if I was - for argument's sake, if I was just given this, put aside the question of the hand, the infected hand, it would have gone out as "unascertained". I do not think that the level of drugs that we're seeing is sufficient to account for the death."
Professor Ellis agreed that multi-drug toxicity was not the sole cause of death.
Professor Duflou's evidence was that there was no reasonable or rational possibility that CC's prescription drug use was the cause of death. This was because there was a strong competing cause of death, and it would be a difficult to elevate the drugs as present to a cause of death. His evidence was that: "Although a variety of psychoactive drugs were present and when taken in the absence of septicaemia the levels of these drugs and their potential interactions may on occasion result in death, in this case there was a clear cause of death in the form of septicaemia and it is my view that mixed drug toxicity is a most unlikely sole cause of death in this case." (Emphasis in original.)
He said that if CC had been found with the relevant substances in her blood and no other competing cause he would probably, in the end, have said that "yes, she may very well have died of the combined effects of those medications and other substances." In this regard, in his report dated 13 June 2018 he noted that the multiple drugs present in CC's blood could result in drowsiness, respiratory depression and on occasion, death and that Lyrica (pregabalin) and topiramate, found at the scene, are known to relatively rarely cause fatal overdose.
Dr Brouwer did not agree that multi-drug toxicity was "a sole cause of death." Her opinion was that "it is not a reasonable or rational possibility that [CC's] prescription drug use was the sole cause of her death."
Dr Collins' evidence was that multi-drug toxicity could not be excluded as a possible cause of death but that it was not a reasonably possible cause of death because of the absence of "hard evidence."
Professor Ellis, in his oral evidence, stated that the prescription drugs detected in CC's blood were not at a toxic level such that it could be said this was the cause of death, although he did agree in cross-examination that central nervous system depressants are capable of causing death if ingested in sufficient quantities.
It is thus apparent that none of the forensic pathologists suggested that it was likely that drug toxicity was the operative, sole cause of CC's death.

Sepsis together with multi-drug toxicity as a cause of CC's death

There was considerable evidence before the trial judge that supported a conclusion that both sepsis and multi-drug toxicity may have contributed to the death of CC.
Dr Goeman, in her oral evidence, said that if she had been asked to make an assessment of CC at some time between 1.30 am and 6 am on 12 April 2017, based on the evidence that she had seen: "I would say that she likely was critically ill as a result of sepsis from a localised infection in the hand, but that, of course, I would be telephoning my toxicology colleagues to ask for their interpretation as to the possible contribution of those drug levels in the bloodstream to her critically ill state."
Professor Paterson's opinion was that, whilst he was not an expert in that area, the toxicology report of Dr Fu of 21 July 2018 raised the possibility that drug toxicity could have been "contributory to" CC's death as, in his clinical experience, "multiple processes could be simultaneously occurring in any given patient." Later, when asked whether there was any indirect cause of death that should be considered in relation to sepsis, he said that: "… there are many people who die who have multiple things going on at the same time that are affecting their physiology, affecting the function of their body … There's a lot of cloudiness around the edges."
Dr Beer said that he could not exclude multi-drug toxicity contribution "in a multifactorial mechanism of death", that is, as a component in addition with other factors. He explained that as follows: "I agree there are sedative effects, there are other things that are going on. You mix that with something else that's going on and that may well be what has occurred in this case."
He agreed with the characterisation of this as "entirely possible". As to the extent of the contribution, his evidence was: "If it had a contribution I'd think it would be a more minor one. I honestly don't…I do not think that the level of drugs that we're seeing is sufficient to account for the death."
Professor Duflou also considered that the presence of drugs in CC's blood was a possible contributor to death, but the level of contribution could not be quantified in any way. His evidence was that they were not likely to have contributed "significantly" to death. He said it was fair to characterise his evidence as being that sepsis is "a more important contributor to death". When asked whether multi-drug toxicity was a major contributing factor he said: "If by major you refer to would she have died if she didn't have the hand infection, I think it's unlikely."
Dr Brouwer's evidence, with which Professor Duflou agreed, was that: "… the systemic effects [of sepsis] thereof may have made her more susceptible to the toxic effect of the combination of drugs and medication detected, and that the medication may have contributed [to] or hastened her death."
Dr Brouwer explained that: "The systemic effects of the possible septicaemia that she had at the time, you know, would have made her more susceptible to the effects of, for example, you know, respiratory depression or cardiac toxic effects of some of the drugs that were detected."
She could not, however, give an opinion as to the extent of the contribution of multi-drug toxicity to death if it was operating in combination with sepsis.
In oral evidence Professor Ellis said that the situation in this case was that the sepsis was "likely to be more causative" but that it was quite possible that the drugs contributed to CC's death. The effect of drugs may have "tipped the balance". The sedative or depressive effect of one or more drugs may have contributed to the effects of sepsis by a worsening of the depressive effect. Professor Ellis identified that you just cannot give definitive quantification to the respective contributions and cannot say that without the presence of the various drugs she wouldn't have died. As to the contribution of the drugs, Professor Ellis said he "couldn't tell you whether it's 10%, 20%, 50%, 60%." He acknowledged that multi-drug toxicity may have been a "significant contributing factor" to CC's death but that that did not change his conclusion that, whilst he could not "quantitate" which one was more causative of death, in his opinion it was more likely that the primary or principal cause of death was sepsis.
Dr Fu's evidence as to the contribution which drugs may have made to CC's death is set out above at [309].

Undetermined/unascertained cause of death

As set out above, Dr Beer ultimately concluded that the cause of CC's death was "unascertained" in his report dated 7 July 2021, noting that this differed from the cause of death identified in his original autopsy report prepared for the coroner (which identified the cause of death to be "septicaemia"). In oral evidence he explained that conclusion as follows: "Q. Is there a desire within forensic pathology to arrive at a cause of death? A. No, we will call something unascertained if need be, if we feel that we can't get to a justifiable cause of death. Q. Is that what you have meant in fairness to you in due course you have said, I'm putting this as unascertained because you can't arrive at a certain mechanism of death, is that fair to say? A. That's correct, yes."
Dr Collins' opinion was that the most appropriate cause of death was "undetermined". He explained this in the following exchange in cross-examination: "Q. Is this the case, that it's on the basis and on your experience that, given the question as to the potential causes of death being potentially sepsis related and potentially drug related, you're unable to say in your opinion as to what the sole, direct cause of death is? Is that fair to say? A. Yes, that's quite reasonable. Q. And it's in those circumstances that you have rendered the word "undetermined" to be used. Is that fair to say? A. Yes, I think so. I think that yeah, I think that's a reasonable comment."
When asked whether there was any other possible cause of CC's death, he said: "No, no, apart from unexpected natural disease processes there is nothing else."
Professor Ellis' evidence was that whilst characterising the cause of death as undetermined was a "quite reasonable" approach, it would not be his approach in this particular case. Dr Brouwer accepted in her oral evidence that a finding that the cause of death was unascertained was a legitimate finding to make in the circumstances of a case such as this.

Did the trial judge consider whether multi-drug toxicity was a sole or contributing cause of death?

The trial judge gave detailed consideration to the evidence of all experts and found, as was the case, that none of the experts "with appropriate qualifications" suggested "a cause of death that was anything other than sepsis": PJ [676]. As we have set out above, none of the experts (other than Mr Farrar who was not qualified to express an opinion as to cause of death) suggested that multi-drug toxicity was the sole cause of death. Her Honour thus did not err in not finding that it was.
Her Honour accepted that multi-drug toxicity may have been a contributing cause of death as it may have contributed to the speed of CC's demise.
In these circumstances, we do not consider that this first criticism of the trial judge's approach can be sustained.

Should the trial judge have weighed the relative contribution of sepsis and multi-drug toxicity before concluding that sepsis was a significant or substantial cause of death?

As necessarily follows from our analysis of the case law, the trial judge was not required to conduct any weighing of the relative causative potency of the competing causes of death. Rather, what is necessary is that the question whether one of a number of competing causes is a significant or substantial cause of death must be considered having regard to the evidence as a whole, including the evidence as to other competing causes. Here, whilst the trial judge's reasoning in support of her Honour's ultimate conclusion is not detailed, it is clear that the trial judge reached her conclusion as to this having undertaken a detailed assessment of all of the expert evidence, in the context of the evidence as to observations of CC in the period leading up to her death. The trial judge was plainly satisfied that CC's presentation in the days before her death "was that of a very sick individual consistent with an infection that was becoming uncontrolled." Having regard to that conclusion, with which we agree, her Honour found that sepsis was a substantial or significant cause of death. Her Honour did not err in taking that approach to the evidence.

Was it open to the trial judge to find that septicaemia was a substantial or significant cause of death?

Having carefully considered all of the evidence for ourselves, we are satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that CC had sepsis, and not merely a localised infection, at the time of her death. This is so notwithstanding that none of the experts expressed their opinions at this level of certainty. The expert evidence identified a number of factors which supported a conclusion that CC had sepsis at the time of her death, and also identified the factors which potentially weighed against that conclusion.
Ultimately, none of the clinical findings themselves were inconsistent with a conclusion that CC had sepsis at the time of her death. Rather, the doubt associated with the diagnosis arose from three things: 1. The lack of concrete, unassailable findings of sepsis in the post-mortem context; 2. The apparent speed of onset; and 3. The failure of either Dr Van Der Walt or Professor Sturm to identify anything suggesting sepsis, such as fever, exhaustion or pain.
As to the first matter, this means that the post-mortem findings alone cannot support a conclusion beyond reasonable doubt that CC had sepsis when she died. However, the evidence discloses that there are real difficulties associated with the post-mortem diagnosis of sepsis given that many of the signs and symptoms are dependent upon ante-mortem observations. In this case, there is the further difficulty of the delay in undertaking the post-mortem examination, including collecting autopsy samples, and in sending blood for analysis, and the use by CC of antibiotics which may have made a positive blood culture less likely.
As to the second matter, the evidence discloses that sepsis and septic shock can have sudden onset, albeit that that might be unusual. Professor Paterson clearly had only limited professional experience of fatal sepsis arising from a hand infection. Dr Goeman was clear in her opinion that the likelihood here was a sudden onset of septic shock between 1.30 am and 6 am on 12 April 2017 and that once septic shock occurs, death would have occurred fairly rapidly outside of a hospital setting. As set out above, Dr Goeman's evidence was that sepsis is a well-recognised cause of sudden and unexpected death which can occur at an unpredictable time in the course of a localised infection. Moreover, as set out above, her evidence was that younger people may not display overt symptoms of sepsis until suddenly they "crash". In the light of this evidence, it was open to the trial judge to be satisfied that CC suffered from sepsis at the time of her death.
This is supported by the evidence of CC's condition in the period from 10 April 2017 up until the last observation of her at 1.30 am on 12 April 2017. This evidence summarised at [179]-[208] above is consistent with a significant worsening of her condition. We place particular weight on the evidence of CC's telephone call with the Appellant in the evening of 11 April 2017. That suggested that by 6.33 pm on 11 April 2017 CC presented as very groggy. MA said: "… you could tell that she was really worried about it and like she was in heaps of pain and you could just tell there was something really wrong."
As to the third matter, being the failure of Dr Van Der Walt or Professor Sturm to identify any symptoms of sepsis, we consider that the significance of this evidence is doubtful given that Dr Goeman's opinion did not depend upon any such finding but was instead predicated upon signs of sepsis occurring after CC was last seen. Thus, the lack of observations consistent with sepsis by Dr Van Der Walt and Professor Sturm is not inconsistent with a conclusion that CC had sepsis and septic shock when she died.
In any event, we would not assume that CC would have disclosed symptoms to those doctors, bearing in mind that Professor Paterson's evidence was based, to a significant extent, upon his opinion that the doctors would have identified, or CC would have disclosed, symptoms of sepsis if she was suffering from any at the time when she saw these two doctors. It is clear that CC was willing to tell some people of her symptoms but did not make such disclosures to others. She was selective in her disclosures. The evidence discloses also that CC was loyal to the Appellant and would not have wished to do or say anything that would or could harm the Appellant. Further, Dr Van Der Walt was not CC's regular GP and she was seeing him for the specific purpose of obtaining a repeat prescription for pain relief medication for chronic severe headaches. She had seen Professor Sturm on five occasions prior to 11 April 2017 on account of her headaches but there is no suggestion in the evidence that she had discussed other medical problems with him. Professor Sturm had a 15 minute consultation with CC. Dr Van Der Walt agreed his consultation with CC was approximately 10-15 minutes.
In the circumstances, the evidence which we have summarised above is such that we are satisfied beyond reasonable doubt that CC had sepsis at the time of her death. The matters relied upon by the various experts in support of their opinions as to this are supportive of a conclusion that CC did in fact have sepsis at the time of her death. These matters include the extent of the infection in her hand, the presence of risk factors for sepsis and sepsis-related death, CC's youth noting that surprising or fulminant sepsis is more commonly seen in younger people, the fact that sepsis is a well-recognised cause of sudden and unexpected death, the presence of neutrophils in the small vessels of the heart and lungs, the raised CRP and procalcitonin and the plausibility of a rapid deterioration and death from sepsis consequent upon a hand infection. The reasons for doubting that conclusion, considered above, do not stand against that conclusion. The evidence as to CC's deteriorating condition, as reflected in the observations made by those who saw or spoke to her in the period shortly before her death, are also consistent with that conclusion.
We are also satisfied beyond reasonable doubt that sepsis was a substantial or significant cause of death. The evidence set out above clearly discloses that sepsis can be fatal, particularly outside a hospital setting and without treatment. Death can occur within a short space of time. The potential effect of multi-drug toxicity here does not stand against that conclusion. None of the forensic pathologists suggested that multi-drug toxicity was a sole cause of death. Thus, the toxicology findings and the evidence of CC's drug consumption prior to death does not preclude a finding beyond reasonable doubt that sepsis was a cause of death. No other cause of death, other than a faint reference to unexpected and unidentified illness, was suggested by the experts.
This is so notwithstanding the uncertainty identified, in particular by Mr Farrar, arising from the fact that some metabolites were not the subject of toxicological testing. As we have pointed out, no forensic pathologist suggested that multi-drug toxicity was a sole cause of death, or that any other cause of death was reasonably likely. In those circumstances, the uncertainty identified by Mr Farrar does not stand against a conclusion, beyond reasonable doubt, that sepsis was a cause of death.
We are not satisfied, however, that the evidence supports a conclusion beyond reasonable doubt that sepsis was the sole operative cause. Rather, the only proper conclusion on the evidence is that multi-drug toxicity was also a contributory cause of death. That conclusion necessarily follows from the expert evidence, and in particular the evidence of all of the forensic pathologists as set out above. No one excluded the possibility of multi-drug toxicity playing such a role.
As to the respective roles of sepsis and multi-drug toxicity, Dr Beer characterised the contribution of drugs as likely to be a "more minor one." Professor Duflou said that the drugs were not likely to have contributed "significantly" to death and that sepsis was the more important contributor to death. Professor Ellis could not quantitate which of sepsis or multi-drug toxicity was more causative of death, on the assumption both were operative causes, but did not suggest that the contribution of sepsis was minor. Professor Ellis said that he could not say whether the contribution of drugs was "10%, 20%, 50% or 60%", but did not suggest it was higher than that. Dr Brouwer could not give an opinion as to the extent of the contribution of each cause, if both were acting.
The question thus arises as to whether sepsis was a substantial or significant cause of death, bearing in mind the potential contribution of multi-drug toxicity. Ultimately, notwithstanding the complexity of the medical science underlying the expert evidence before the Court, the question whether sepsis can be characterised as a substantial or significant cause requires a determination whether it is "sufficiently substantial [a cause] to enable responsibility for the crime to be attributed to the accused": as set out by Deane and Dawson JJ in Royall at 412. Such a characterisation is not dependent upon an expert assigning numeric probabilities or percentage values to the extent of the contribution. Otherwise, such conclusions would be dependent upon the willingness of medical practitioners to engage in quantification in that manner. As set out above, it is not a characterisation that requires any relative significance to be attributed to the various operative causal factors, here sepsis and multi-drug toxicity.
The task of determining beyond reasonable doubt that sepsis was a substantial or significant cause in this case is assisted by consideration of the potential causative mechanisms by which multi-drug toxicity and sepsis may have combined to cause death, to the extent that that was identified by the experts. Three such mechanisms were identified. First, that the effect of the drugs precluded CC realising the extent of her deterioration by reason of her sedated state. Second, that CC's sepsis made her more vulnerable to the respiratory depressive or cardiac toxic effects of the drugs. Third, that one or more of the drugs worsened the depressive effect of the sepsis.
On either of those three mechanisms, we are satisfied beyond reasonable doubt that the role played by sepsis should be characterised as substantial or significant. The evidence clearly establishes how significantly sepsis impacts the human body, particularly where it is not treated. Dr Goeman's evidence was clear as to this. There was no suggestion in the evidence that the effect of sepsis on CC, if it occurred, was or would have been anything other than significant. To the contrary, having regard to the evidence set out above, it is clear that sepsis would have had a dramatic effect on CC, compromising the ability of her organs to function effectively and diminishing her ability to withstand the effects upon her of the drugs she had consumed. Sepsis was characterised by all experts as a dangerous, life-threatening condition.
On the evidence, we are satisfied beyond reasonable doubt that the effect of sepsis on CC, and the contribution that sepsis made to her death, was sufficiently substantial for responsibility to be attributed to the Appellant for her death. In these circumstances, and having carefully reviewed all of the evidence, we are satisfied that the evidence is sufficient in nature and quality to eliminate any reasonable doubt as to whether sepsis was a substantial or significant cause of death.

Ground 4: Negligence (a particular of ground 3)

The Appellant further contended that the trial judge erred in finding that he was criminally negligent in respect of his treatment of CC in that it was not open to the trial judge to be satisfied of this element beyond reasonable doubt. As stated above, the trial judge concluded at PJ [683] that her Honour was satisfied that the Appellant was criminally negligent based on a number of acts. They are all disputed by the Appellant.

Insertion of implant

The first act found by the trial judge as constituting criminal negligence was the insertion of the implant in the first place.
Her Honour was satisfied that the Appellant inserted the silicon implant into CC's hand without reasonable knowledge, skill, care and caution. Her Honour had regard to the evidence of Dr Bezic that this was an inherently dangerous and high risk procedure and that the Appellant had substandard infection control and hygiene procedures. It was common ground that the hand became infected.
The Appellant contended that this act was not criminally negligent. He primarily relied upon the fact that CC had previously had a number of implants inserted by him without incident. It was submitted that there was no evidence that the procedure the subject of Count 3 was any different in character or in terms of risk to any of those previous procedures. On this basis, it was submitted that there was insufficient evidence to find that the procedure carried a high risk of death or grievous bodily harm. Further, it was submitted that the procedure was lawful and regulated as a skin penetration procedure under the Public Health Act. It was submitted that neither the manner nor location of the procedure was of itself an act which involved such a high risk of death or grievous bodily harm that the doing of it merits criminal punishment.
We do not accept the Appellant's submission that this act was not an inherently dangerous and high risk procedure based on the expert evidence of Dr Bezic summarised above. Further, the tendency evidence as to the Appellant's practices supports the finding that the Appellant had substandard infection control and hygiene procedures. We have also viewed Exhibit 14. Based on the evidence, we are satisfied that the evidence is capable of establishing that the act was inherently dangerous and a high risk procedure.
A further basis for contending that it was not open to find that the insertion of the implant caused the infection is the lack of evidence about whether CC could have introduced the infection into her hand somehow over the 21 days after the implant was inserted and before her death. An example was suggested that she may have manipulated the snowflake herself in such a way as to allow the infection to enter.
Although there was some evidence from CC's friends that she was seen to be distracted by the implant and touching it, those observations were made on 11 April 2017 after the hand became infected. Given the tendency evidence, the evidence of Dr Bezic and the evidence of the Appellant's subsequent interactions with CC, we are satisfied that there is no reasonable doubt that the infection was caused by the initial procedure rather than being the fault of CC.

Failure to refer CC for medical treatment on 10 and 11 April

A further act of the Appellant supporting a finding of criminal negligence was his failure on two separate occasions to refer CC for medical treatment. We have already summarised the evidence of her visit to Transition on 10 April 2017 above.
The Appellant relied upon Dr Goeman's evidence that there can be a rapid demise from sepsis from an abscess on the hand over a period of up to five hours, even without obvious early warning symptoms or necrotising infection. Given that the Appellant saw CC on 10 April 2017 (which was the day before the two doctors saw her and failed to observe signs of sepsis), it was submitted that there was insufficient evidence capable of establishing beyond reasonable doubt that CC was suffering from severe sepsis when the Appellant saw her on 10 April 2017. This was said to be highly relevant on the question of whether he was criminally negligent in failing to ensure that she obtained urgent medical assistance; if CC only became seriously ill in her final six hours, then she would have only developed symptoms after she last saw the Appellant. If that was the case, it was submitted, he could not have been criminally negligent in failing to refer CC for medical treatment.
The Appellant submitted that the trial judge failed to appreciate the significance of the evidence about the sudden onset of sepsis to the question of what he should have done on 10 April 2017; on the one hand her Honour found that CC was obviously seriously ill when the Appellant saw her on 10 April 2017 but she also found (at PJ [681]) that: "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."
We do not accept the premise of this submission. The Crown was not required to establish that CC was already suffering from sepsis when she saw the Appellant on 10 April 2017; it would be sufficient if she was appearing unwell with an infected hand at that time for him to be criminally negligent for failing to refer her for medical treatment. We have already found that there was ample evidence that CC was unwell as at 10 April 2017, including, inter alia, from the Shackletons, Exhibit 14 and Dr Bezic (having examined Exhibit 14). The evidence was that her hand was red and swollen, the infection site was green and/or yellow, there was pus and/or haemopurulent fluid coming from the wound, she was in pain and described herself as feeling "terrible" to Mr O'Neill.
We are satisfied that CC presented to the Appellant on 10 April 2017 in a manner which meant he was in breach of his duty of care in not referring her for medical attention that day. Although it is to be accepted that the two medical practitioners who she saw the following day did not do so either, she was not consulting them in relation to her hand. The practitioners did not have the knowledge of what the Appellant did or what procedure she had had, how long ago, and what she had complained of to him.
The second occasion the Appellant failed to refer CC for medical attention was during the telephone conversation they had at about 6.30 pm on 11 April 2017. That conversation was overheard by MA and we have summarised her evidence above. CC expressed concern about possible infection, sounded groggy and appeared concerned. In response, she was told by the Appellant that her hand was not infected but "merely irritated". He said to her, "[h]onestly it's fine" and, "like I know what I'm doing". He then encouraged CC when she suggested she should take a new migraine medication and instructed her to take Advil, rest up and return to see him in the morning. This is consistent with what CC told Natalie Shackleton at 1.30 am the following morning, namely, that she would be seeing the Appellant at 9 am for assistance.
The expert evidence at trial establishes that the Appellant's advice to CC during that conversation that her hand was not infected was incorrect; her hand was infected at that time. Instead of advising her to seek medical treatment, the Appellant encouraged her to take pain medication and rest and see him the following day. We are similarly satisfied that the Appellant was in breach of his duty of care in not referring CC for medical attention during this telephone conversation.
The Appellant further contended that CC's decision not to seek medical attention for her hand or raise any concerns about the wound with the two medical practitioners on 11 April 2017 cannot be used against the him. In fact, it was submitted, this breaks the chain of causation. Reliance was placed on the evidence of Dr Willemse, summarised above, to the effect that CC had obtained medication for infections in the past and was not someone who would be deterred from seeking medical attention. It was submitted that this evidence established that CC was aware of infection control and prevention measures and had previous experience of looking after herself following body modifications on her by the Appellant. The Appellant was critical of the trial judge for not having considered this in her Honour's finding.
The fact that CC did not seek medical attention has to be considered in the context of the relationship of trust between them. The evidence establishes that the Appellant told CC twice that she did not have an infection and encouraged her to come and see him to rectify any problems. Dr Bezic's expert evidence was that this was an act of gross negligence and we accept that evidence.
The Appellant also complains of her Honour's finding (at PJ [423] and [432]) that, having regard to the evidence of Mr Olteanu, the Appellant deterred CC from seeking medical treatment. It was submitted that it was not open to find that the Appellant deterred CC from seeking medical attention based on the evidence of Mr Olteanu.
Mr Olteanu's evidence was that the Appellant told CC "[i]f it gets worse you may need to see a doctor and get some antibiotics but don't tell them who did this". It was submitted that this evidence demonstrates that the Appellant deterred CC from revealing his identity as having conducted the procedure on her rather than deterred her from seeking medical attention per se. We have summarised Mr Olteanu's evidence above but, significantly, the Appellant told CC that she would be "fine". After telling her that if it gets worse she may need to see a doctor and get antibiotics, he added, "if you really need antibiotics…get some, but painkillers should be enough". In addition to this evidence of what he heard the Appellant tell CC on 10 April 2017, Mr Olteanu also gave evidence that it was the Appellant's practice to tell his clients to return to him before they saw a doctor. This was admissible tendency evidence on this issue.
The trial judge observed (at PJ [431]) that Mr Olteanu's evidence that the deceased was reluctant to visit a doctor because of a "perceived exaltation from [sic] the accused" was supported by the evidence of CC's mother and Dr Willemse (as well as MA). In the context of the evidence that CC idolised the Appellant, she would have perceived that he was telling her not to seek medical assistance. Her Honour went on to conclude the following at PJ [432]: "I accept that the accused told the victim not to tell a doctor and if she had to see one not to tell who did the procedure, thus, indirectly, I find, deterring her from seeking medical attention. Other tendency evidence further supports this finding." (Emphasis added.)
We do not accept the Appellant's submission that Mr Olteanu's evidence supports a finding that the Appellant actually encouraged CC to see a doctor on 10 April 2017. When Mr Olteanu's evidence is considered along with MA's evidence that the Appellant would tell patients their wounds were "irritated" rather than infected; that that is exactly what the Appellant did tell CC on the evening of 11 April 2017; and the fact that the Appellant did not remove the implant on 10 April 2017, we are satisfied that the Appellant indirectly deterred CC from seeking medical attention. If he had told her that her hand was infected, she would have been more likely to have sought medical help. Thus, although we do not accept that the words attributed to the Appellant by Mr Olteanu amount to an express directive not to seek medical help, his failure to tell her that her hand was infected had that indirect effect.

Manipulating the implant on 10 April 2017

A further act relied upon to establish criminal negligence was that on 10 April 2017 the Appellant anaesthetised CC and manipulated the silicon implant when there were signs of extreme infection in the hand. It was common ground that he did not remove the implant at this time. Rather, he inserted another implant into CC's thumb on the same hand.
We have already rejected the Appellant's submission that there was no evidence that when the Appellant last saw CC on 10 April 2017 she appeared unwell. Although the Appellant relied on the fact that CC sought the insertion of an additional implant that day as being inconsistent with her being very unwell, as stated above, there is no evidence to support the submission that it was CC who sought the additional implant that day.
The Appellant did not give evidence at trial nor participate in an electronically recorded interview with police. Although Mr Olteanu was present for some of the conversation between CC and the Appellant at Transition on 10 April 2017, he did not hear any conversation as to why a second implant was inserted that day.

Conclusion: Criminal negligence

The Appellant's primary submission on negligence was that it was necessary for the Crown to rely on a combination of acts to establish criminal negligence. It was not submitted that if one of these acts cannot be proved then the Crown's case of criminal negligence fails. Rather, it was contended that most of them could not be proved such that it was not open for the trial judge to be satisfied that the Appellant was criminally negligent.
We are satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the Appellant was criminally negligent. After the Appellant conducted a surgical procedure on CC in unhygienic conditions without the requisite skill and expertise, he exposed her to a high risk of injury resulting from infection. When she presented with an infected hand on 10 April 2017, he further manipulated the implant which increased the risk of sepsis. In addition, he failed to advise her to seek medical treatment and, by wrongly telling her it was not infected, indirectly deterred her from seeking such help. The breach of duty occurred over a matter of days and weeks and does not rely solely on the critical hours prior to her death.
We are unable to make any finding as to why the Appellant failed to tell CC her hand was infected on 10 April 2017. Two competing inferences are available on the evidence. Either the Appellant did not have the expertise to recognise the infection, or, he did recognise the infection and still failed to refer CC to medical treatment. Instead, he undertook acts which were likely to make it worse. Both inferences establish a gross breach of his duty of care.

Conclusion: Unreasonable verdict (grounds 3, 4, 8 and 9)

Our assessment of the totality of the evidence does not leave us with any reasonable doubt of the Appellant's guilt of manslaughter by criminal negligence. Her Honour made some limited credit findings, including about the expert witness Mr Farrar. Further, her Honour observed at PJ [681] that the evidence of the lay witnesses concerning their observations of CC leading up to her death was "very convincing". But otherwise, this was not a case in which the trial judge had any significant advantage over this Court. In these circumstances, we have performed our own independent assessment of all of the evidence. We are left with no reasonable doubt that the Appellant was guilty of manslaughter by criminal negligence.
As for the question of causation, which was the subject of most of the challenges to the manslaughter verdict, it is to be accepted that CC's blood was not tested to detect the presence of pregabalin (no such test being available at the time). When this is considered together with the toxicology results, it certainly raises the question of whether CC's respiratory system had been depressed at the time of her death. But none of the forensic pathologists suggested that it was likely that multi-drug toxicity was the sole cause of CC's death.
Given the expert evidence, including that of the pharmacologists Dr Fu and Mr Farrar, we are satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable possibility that drug toxicity alone was the cause of CC's death. That left either sepsis alone or sepsis and multi-drug toxicity as the only possibilities. Her Honour was ultimately satisfied beyond reasonable doubt that sepsis was the substantial or significant cause of death. In doing so, she accepted that multi-drug toxicity may have been a contributing cause of death in that it may have contributed to the speed of her demise. Having made our own independent assessment of all the evidence, including as to the contribution that multi-drug toxicity may have made to CC's death, we do not entertain any reasonable doubt that sepsis was a substantial or significant cause of death. For these reasons, we would dismiss the appeal against conviction on Count 3.

The appeal against sentence

The trial judge imposed an aggregate sentence for Counts 1, 2 and 3 under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). By each of grounds 10-14 of the Notice of Appeal the Appellant alleges that the aggregate sentence was manifestly excessive. Given that we would quash the Appellant's conviction on Count 1, it is necessary to re-sentence the Appellant on Counts 2 and 3 in any event. In those circumstances, it is not necessary to consider whether the aggregate sentence imposed on the Appellant was manifestly excessive.
In the absence of any challenge to a trial judge's findings of fact, it is not open to an intermediate appellate court to discard factual findings made by the trial judge: Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [24]. As the High Court observed in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]: "As explained in Kentwell v The Queen, the Court of Criminal Appeal exercises an independent sentencing discretion in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error infected the sentence imposed below. Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct." (Footnotes omitted.) (Emphasis added.)
An appellant is permitted to seek different factual findings on re-sentence if that approach is consistent with the case put to the trial judge. All of the complaints made under grounds 11-14 challenge findings made by the trial judge which implicitly rejected submissions put to her Honour by the Appellant on sentence, including factual findings relevant to the assessments of objective seriousness. It is necessary for this Court to resolve these factual challenges for the purposes of re-sentencing. There is no need to address the factual challenges made under ground 10, which alleges error in sentencing in respect of Count 1.
In resolving the factual disputes for the purposes of re-sentencing, we may not make factual findings adverse to the Appellant's interests unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to him are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Before turning to consider the disputed factual findings, we will first set out the respective cases on sentence before the trial judge and her Honour's significant findings on sentence which are challenged in this Court.

The proceedings on sentence

The Appellant was found guilty by the trial judge on 15 November 2021 but not sentenced until 4 July 2022. The proceedings on sentence were delayed until 1 June 2022 for the Appellant to obtain psychological reports, although none were ultimately tendered.

Crown exhibits

The Crown bundle on sentence comprised the Appellant's criminal history, custodial history and the victim impact statements of AA, BB and CC's mother.
In her victim impact statement dated 11 May 2022, BB described being traumatised by her ordeal. She explained that her corrective scarring is a constant physical reminder of what she went through and her emotional scars are always present. She expressed the wish to turn back time so that her path did not cross with the Appellant and she would not have put her trust and faith in him as a "so called" professional and friend.
In the statement of CC's mother dated 11 May 2022, she described missing her daughter with every breath and her inability to express the pain that CC's family feels every day. She also explained that CC's daughter has to live with the loss of her mother every day. She wrote, "every time she mentions [CC]'s name that heartache & sadness is in her eyes, it has been 5 years now & the older she gets her memories are fading & that breaks my heart even more." She expressed the hope that the awareness of the consequences of the Appellant's actions will "make a change".

Defence exhibits

The defence bundle comprised the Health Care Complaints Commission decision in relation to the Appellant (permanently prohibiting him from providing any health services to any member of the public, in a paid or voluntary capacity) the bail summary, a labiaplasty website printout, an affidavit of Maria Russell, the Appellant's wife, dated 21 May 2022, a reference letter of Maria Russell dated 30 May 2022 and a reference letter of Anthony Kozis, the Appellant's former employer, dated 22 May 2022.
Ms Russell's affidavit described the Appellant's strict compliance with his bail conditions, including the house arrest condition when it was in place. In her reference letter, Ms Russell wrote (incorrectly) that the Appellant was in custody for 10 weeks following his arrest for Count 2. She explained that since 2018 the Appellant had been severely depressed and anxious over his future but had always showed concern and consideration for CC's family. She described the Appellant as a clever, knowledgeable and sensitive person, a family man and brilliant father. He was passionate and particular about his work, caring to every client and would never have anticipated that this could happen. He had shown strength throughout these challenging years and continued to work hard, including in the family pizza business they opened in 2020.
The Appellant worked at Tony's Haircuts as a barber between July 2019 and November 2021. Anthony Kozis, his employer and close friend, wrote that the Appellant was kind, trustworthy, responsible, reliable and respectful to clients.

Submissions before the sentencing judge

The Appellant's submissions on sentence focussed on whether the victims' consent reduced the objective seriousness and the "moral culpability" of the offending. As will be discussed below, these separate concepts were conflated at times in submissions before her Honour. It was submitted that the victims' consent to the procedures was highly relevant on sentence for all three counts. The victims knew that the Appellant was not a medical practitioner and the failure to inform the victims of possible consequences does not detract from the fact that consent was given. The Court was urged not to conflate civil liability for damages for medical conduct with criminal liability for an offence.
In relation to Count 3, it was submitted that the Court should not consider the actual performance of the procedure, which was not unlawful, but the manner in which it was performed and the lack of after care. Further, reliance was placed on the fact that CC was not in a moribund condition when she last saw the Appellant and only systematically deteriorated in the hours before her death. Reliance was placed on the fact that the Appellant had previously performed numerous procedures on CC without unfortunate consequences. It was also submitted that the Court should have found that sepsis was not the sole cause of death because there was a reasonable possibility that the drugs exacerbated the death.
It was ultimately submitted on behalf of the Appellant that the objective seriousness was at the bottom of the range and the moral culpability was very low. It was also contended that the gravamen of Counts 2 and 3 was that the Appellant lacked the skill and knowledge of a medical practitioner in performing these procedures.
The Crown conceded that some allowance may be made for consent and relied on the observations by the Court of Appeal of England and Wales in McCarthy at [56] that "genuine consent will have an impact on the appropriate sentence but not such as to lead to penalties entirely divorced from cases of the ordinary sort" and that "it is more likely that real consent will affect the evaluation of "culpability" and lead to a reduction in the sentence that would be appropriate in the ordinary course". However, it was submitted that BB did not give real and genuine consent in any event in reliance on the primary judgment at [289].
In relation to Count 3, the Crown agreed that the gravamen of the offending was the breach of duty. It was submitted that the Court does not need to consider whether the placing of the implant was a "lawful act" as the Crown case was that the way the act was done made it inherently dangerous. Emphasis was placed on the ongoing and significant breaches of duty. Reliance was placed on the trial judge's finding that the lack of observation by the medical practitioners of CC being unwell the day before her death does not mean that CC was not suffering from infection when she saw them (at PJ [466]) based on the observations of family and friends (at PJ [629]). Finally, the Crown submitted that there was no reliable evidence that drug toxicity would have caused CC's death absent the sepsis and she was taking the pain killers for the pain in her hand caused by the gross criminal negligence of the Appellant.
The Crown submitted that the overall objective seriousness for each offence was the upper end of the middle range.

The Sentencing Reasons

Her Honour addressed a central submission made on behalf of the Appellant early in her Sentencing Reasons and rejected it; namely, that the gravamen of the Appellant's criminality was the performance of the procedure without the "knowledge, skill or qualifications of a medical practitioner thereby leading to unintended consequences". Her Honour went on to deal with objective considerations relevant to the objective seriousness of all three offences and said this: "Firstly moral culpability generally. The offender, through his counsel submits that as a result of each victim consenting to the procedure undertaken, trust issues aside, his moral culpability is thereby reduced. There is no reasoning suggested as to how or why moral culpability of the offender would be reduced in circumstances such as this. It is not suggested that the offender suffered from any form of mental or cognitive condition or any inherent lack of foresight as to the consequences of inserting a scalpel into the body of another in such a way as his moral culpability is reduced for the acts he took. In this regard I am not referring to the consequences of the lack of provision of aftercare which is a different issue. In charges 2 and 3 it was the offender who told each victim that he was capable of performing the procedures undertaken safely. Consent was given in that circumstance. It is not logical to suggest that the offender's moral [sic] is reduced in that circumstance."
Her Honour then went on to consider the question of the breach of trust as follows: "Next consideration is breach of trust. At least counts 2 and 3 involve the offender breaching the trust the victims had in him which trust was encouraged by the offender holding himself out to have "full extensive surgical background of training" and this is in the agreed facts. It is acknowledged that the social media post on a restricted site was not accessible to the general public. However, the subject of count 3 was referred to in [MA]'s evidence as a member of a group of enthusiastic body modification recipients known as the mod squad, a group who spent much time at the studio and were competitive in the body modification requests, all of which were carried out by this offender. There is no evidence otherwise, therefore it is fair to draw an inference that the victim of count 3, who I have referred to as CC, as a member of the apparent inner circle as referred to by [MA], was aware of this restricted post. Procedures undertaken by the offender on her, that is on CC, were posted on the site by [MA]. In addition CC referred to the offender as a god and told others of his skill and this is the evidence of CZ. I further note the character reference recently provided by the offender's wife referred to the deceased as a close friend of this offender." (Emphasis added.)
Her Honour went on to find that the breach of trust was an aggravating consideration in the assessment of the objective seriousness of Counts 2 and 3 before stating this: "The level of trust and breach is limited by the fact that each of the victims was an adult and each of the victims was aware that the offender was not a qualified medical practitioner. However, for these two offences he convinced each complainant that he was sufficiently skilled to perform the procedures safely. That he was not is beyond doubt."
Her Honour then made general observations as to the issue of consent including the following: "The next issue is consent. It is evident from the above discussion that the issue of moral culpability is not enlivened by the fact of consent. If counsel means that the fact of consent reduces the objective seriousness of the offending, this is a separate consideration which I will now address. It is in the context of the above trust considerations that the complainants in counts 2 and 3 consented to the offender performing the procedures. He held himself out to each of them that he was capable and safe in performing those operations. His hubris drove the trust which led to the consent, therefore the fact of consent cannot be assessed without the countervailing force of the breach of trust. It is obvious that consent for the procedures in counts 2 and 3 would not have been given without there being a significant trust relationship between each victim and the offender. Consent in this context is, I acknowledge, a different creature to the concept of informed consent as referred to in my decision and the medical profession in general. The Court understands the difference between the issue of consent, as referred to in this case, and the concept of informed consent as referred to in a medical sense and in a civil case. Counsel urged the Court not to confuse the concepts of civil and criminal liability and I do not." (Emphasis added.)
As to Count 2, her Honour noted again that consent is "closely related to" the issue of trust. She accepted that Count 2 would be more serious if there was no consent.
Her Honour found that there was "ample evidence to conclude that the breach of the abdominal wall for BB was caused by the Appellant showing off mid procedure by implanting the scalpel into the adnominal wound". She also referred to her findings as to his lack of hygiene which contributed to BB's later infection. BB was sent home after the procedure, the wound bled badly, and she was in significant pain. The wound continued to cause difficulty, but the Appellant did not attempt to check on her progress. She was unable to leave the house unassisted. Finally, three weeks later, after advice from doctors and nurses, she went to hospital and had remedial surgery.
Her Honour found that the trust BB had in the Appellant led to her not seeking medical attention sooner and that decision could not be entirely blamed on the Appellant. After referring to some other reported decisions, her Honour found that the degree of grievous bodily harm was "at the lower to midrange for the offence charged". She referred to the case of M(B) (discussed further below) but found it to be of little assistance.
Her Honour ultimately assessed the objective seriousness of Count 2 to be "below but not substantially below midrange".
Her Honour then turned to consider the objective seriousness of Count 3. She repeated that she was satisfied of all the acts relied upon by the Crown to establish criminal negligence and listed them. Her Honour noted the Appellant's submission that CC was not presenting as ill and observed the following: "The submission that the deceased was presenting as her normal happy self - para 60 of defence submissions - at her meeting with the offender is supported by no evidence and is contradicted by a great deal of it - at least Mr Altenao's [sic] evidence. There is no suggestion from anyone who saw her at the tattoo studio that day to suggest that she was her usual or normal happy self. The offender did not give evidence. She may have presented as normal to those from whom she was trying to hide the infection in her hand but the offender was not one of those. She attended on his studio twice to have what she believed was an infection attended to. The performance of another procedure on the day she attended for this purpose compounded the risk of spread of the infection throughout the body. There is absolutely no evidence that she presented well at this time. There is evidence otherwise, largely the fact that she attended on his studio for him to address the pain and infection in her hand. The observation of Dr Bezic of the video taken of this process, and this exhibit 14, is clearly that the site in the hand was infected and that at that time she ought to have been urgently referred to hospital. I found that the death of CC was initially as a result of an infection to the hand which developed into septicaemia and that was a significant or substantial cause of death."
Her Honour then said this about the contributing factor of multi-drug toxicity: "Counsel submissions on the sentence, and I refer now to para 75 and 75 [sic] of the outline of submissions, that the Court should or could make a finding that the cause of death was not solely septicaemia seems to ignore what I had hoped was a thorough discussion of all of the medical evidence. The evidence of Dr Beer, paras 5, 33 and onwards - Professor Ellis, paras 5, 42 and onwards - Dr Brouwer, paras 5, 57 and onwards - all commented on the lack of likelihood of what counsel refers to as a cocktail of prescription drugs as contributory to the deceased's death. The so-called cocktail comprised low levels of painkillers, none at toxic levels for this particular subject. Any evidence otherwise has been discussed and rejected in my judgment. Many doctors commented that the deceased's high tolerance to prescription painkillers countered against a conclusion that drug toxicity contributed to her death. In any event, the last phone call the offender had with the deceased contained advice from him to her to take the migraine medication. If there was any contribution to her death from that medication, this advice is further evidence of lack of care by the offender."
Her Honour went on to observe, "[f]rankly, there is no cogent evidence of any contribution from any event or causes" and then stated this: "Again on the issue of lack of medical qualification as it is submitted in relation to this matter the offender's counsel has submitted that the gravamen of this offence as well is his lack of medical qualifications. The evidence of both Dr Ellis and Professor Duflou was that teaching at medical school emphasised that hand surgery is fraught with danger and complications. If the offender had medical qualifications he may have learned this and not undertaken the procedure at all. His lack of medical skill and basic hygiene was certainly a problem. No doubt if he had medical qualifications he would have taken issues of hygiene more seriously as he should if he used the Autoclave correctly, utilised sterile gloves and a mask during procedures, and again I am referring to the tendency evidence, not conducted procedures in the tattoo studio and provided antibiotic washes. [sic] prophylactic antibiotics and understood the potential for sepsis to kill a person quickly. So while the fact that he was not a medical practitioner is obvious it is not the gravamen of the offending."
Her Honour then dealt with the question of consent and made the following finding: "The trusting relationship between the offender and the victim underscored the acts that then occurred and the process resulting in her death. Therefore her consent to the procedure must be understood in this light. It is not a mitigating circumstance. The breach of trust between the offender and the deceased and the lack of proper care and basic hygiene in performing the procedures are features inherent in the finding of guilt made and the breach of duty of care. They are not, however, aggravating features for the purpose of sentence." (Emphasis added.)
Her Honour went on to refer to the decisions of R v HA [2008] NSWSC 1368 and R v Gary Gow [2006] NSWDC 78 and ultimately found the objective seriousness of the manslaughter offence to be below mid-range "but not significantly".
Under the heading "General Mitigation Matters", her Honour noted that the Appellant had expressed no remorse nor accepted any responsibility, that he has a supportive wife and two young children, and that he was upset by CC's death. Her Honour also noted that other than the fact that the Appellant's wife supported him, she had no other information on which to base a finding as to the prospects of the Appellant's rehabilitation. She noted that the Appellant's incarceration will provide hardship for his family, and that it was not suggested that "the hardship for the family is at such a level as to be a consideration on sentence but I acknowledge it". She went on to note that the Appellant was entitled to leniency given that he had no prior criminal history. Her Honour noted the submission relating to the onerous bail conditions the Appellant was on and reduced the sentence by 28 days on that account and a further 29 days for his time in custody on remand. She was not satisfied special circumstances existed.

Challenged findings for Count 2

Two factual disputes relevant to objective seriousness were raised under ground 11 in relation to Count 2: 1. The trial judge erred in failing to "mitigate" the sentence on the basis that BB had consented to the procedure; and 2. The trial judge erred in failing to "mitigate" the sentence on the basis that BB knew that the Appellant was not a medical practitioner.
The Appellant's submission to the trial judge was that these factors reduced the Appellant's moral culpability. The Appellant accepted during the hearing of this appeal that the factors of BB's consent and knowledge could only reduce the objective seriousness of the offence. The nub of the complaints under ground 11 is that her Honour should have found the objective seriousness for Count 2 to be at the lowest end of the range for an offence contrary to s 33(1)(b) of the Crimes Act.
The Appellant submitted that her Honour erred in finding that consent was not a mitigating factor and instead finding that consent would only be a mitigating factor if the victim experienced positive feelings associated with an injury. It was submitted that the feelings of the victim cannot detract from evidence of consent and that consent is relevant regardless of the victim's feelings. It was further contended that the trial judge failed to make a finding as to how consent impacted on the finding of objective seriousness when her Honour should have found that consent lowers the objective seriousness. It was submitted that the evidence clearly established that BB knew that the Appellant was not a registered medical practitioner, nor medically trained. Thus, her consent was provided knowing this and knowing the procedure would take place in a tattoo parlour rather than a licensed medical practice. She understood the difference as she was a student nurse.
The Crown submitted that the trial judge found that the Appellant held himself out to BB as having some surgical training which was reasonably open on all the evidence. It was also submitted that her Honour was correct to find that BB's consent was inherently connected with her trust in the relationship and so it did not operate to reduce the Appellant's moral culpability. It was submitted that the Court cannot accept the Appellant's submission that the objective seriousness was at the lowest end of the range.

Factual findings for Count 2

We find no error in her Honour's approach to the significance of the victim's consent to the assessment of objective seriousness. On the facts in this case, it could not be assessed without the countervailing force of the breach of trust.
Her Honour rejected a submission going to all three offences that the Appellant's moral culpability was reduced on account of each of the victims' consent to the procedure undertaken. As stated above, no error is alleged in respect to that finding as the Appellant accepted in this Court that the reference to moral culpability in the submissions before her Honour should have been a reference to objective seriousness.
In DS v R; DM v R [2022] NSWCCA 156, this Court (Beech-Jones CJ at CL, N Adams J and Cavanagh J) rejected an argument that an assessment of an offender's moral culpability forms part of the determination of the objective seriousness of their offending. In doing so, it was made clear that the "objective seriousness" of an offence and the "moral culpability" of the offender are separate but related concepts. Whereas "objective seriousness" involves an objective assessment of the seriousness of the crime, including matters causally related to it, "moral culpability" is concerned with an offender's moral blameworthiness for an offence. Factors which may reduce an offender's moral blameworthiness for an offence include a mental illness (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194) or a childhood of profound deprivation (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). The question of consent could not reduce the Appellant's moral blameworthiness, but it is a matter capable of reducing the objective seriousness of any offence, depending on the facts in each given case.
The Appellant had relied before the primary judge on the decision of M(B). That case concerned consensual body modification surgery. An appeal against that sentence was dismissed: McCarthy. Both decisions were brought to her Honour's attention. Her Honour considered the decision in McCarthy in the context of assessing the objective seriousness of the offending but stated that it was of little assistance. She did not otherwise expressly refer to the principles derived from either decision.
One of the grounds of appeal in McCarthy was, as here, that insufficient weight was attached to the fact that each of the victims had consented to the procedures. The Court held that consent may be relevant to sentencing in such a case in two ways. First, a serious injury which has been received freely following consent may well import fewer adverse consequences than usually associated with an injury of the same sort. Second, an attack resulting in serious injury is more culpable than the infliction of the same injury with the genuine consent of the victim. The Court, at [56], held that: "Given the underlying policy imperative which dictates that consent does not provide a defence to serious assaults of this nature, genuine consent will have an impact on the appropriate sentence but not such as to lead to penalties entirely divorced from cases of the ordinary sort. It is possible that the category of 'harm' will be reduced; but it is more likely that real consent will affect the evaluation of 'culpability' and lead to a reduction in the sentence that would be appropriate in the ordinary course."
Although the Court held in McCarthy that consent may be relevant if there were positive feelings associated with the injury, there was no evidence of that here. Further, the Court held in McCarthy (at [55]), that "if a victim were vulnerable, suffering from mental health problems or the consent given were not genuine when its quality is investigated, that would aggravate rather than mitigate the offending". (Emphasis added.)
The trial judge found that the breach of trust on the Appellant's part was relevant to the question of consent with regard to both Counts 2 and 3. Although her Honour expressly rejected the notion that consent was a mitigating factor in relation to Count 3, she did not make the same express finding in relation to Count 2. Rather, she accepted that Count 2 would be more serious if there was no consent and otherwise considered the notion of consent was "closely related to" the issue of the breach of trust in this case.
We do not read McCarthy as requiring a different conclusion. It is plain that the Court in that case considered that the relevance of consent to culpability must depend upon the "real nature" of the consent and the circumstances in which it was given. Whilst her Honour did not consider this aspect of the judgment in McCarthy, her conclusion that the breach of trust here precluded the victims' consent from mitigating the objective seriousness of the offending is consistent with the analysis in that case.
Her Honour was plainly influenced by the fact that consent was itself consequential upon the trust that BB had in the Appellant, someone who she considered to be a member of the family to the extent that "mates' rates" were offered for the procedure.
A significant aspect to her Honour's findings as to the relevance of consent was the relationship of trust between the Appellant and BB (and CC). We are satisfied that it was open to her Honour to find such a relationship existed having regard to, inter alia, what he told BB about his skill (the second complaint under ground 11).
Her Honour referred to BB having given direct evidence of what she said the Appellant told her of his skill when he showed her some photographs on his phone of a similar procedure he had performed on a woman in New Zealand. BB's evidence was that: "[W]e went in there for my boys to get a haircut, and I was just messing around, and I've always thought of getting some skin removed off my stomach after the birth of my boys and I voiced it out loud and the [Appellant] had said that he's done that before. And he showed me a picture, or a couple of pictures of a girl in, from New Zealand that had had the same thing as what I wanted to have done, and he said that he could do it for me."
BB's evidence was that the Appellant had said that he had: "[Q]uite a good reputation with his, the way he administers his local anaesthetic. He has said, he said either a surgeon that he knows that's in the industry had said to him that the way he applies his local, like a fanning procedure or something, was amazing and I wouldn't have anything to worry about."
BB also gave evidence that she was a student nurse and was aware that the Appellant was neither a plastic surgeon nor a cosmetic surgeon, but she was "not overly aware of things that could be done by someone that's not a plastic surgeon". She said that she was "quite impressed" with what he told her. She gave the following evidence in cross-examination: "Q. Then there was also this conversation on this very same day, you said to Mr Russell "How did you get into it", and he provided you a long answer where he said that he trained with one of the world's top body modification artists by the name of Howie from America, that he did ten years of training under Howie, and he paid US$15,000 for that training, what do you say about that conversation? A. I don't remember anything about that a conversation like that. Q. Do you remember any conversation with Mr Russell, on that occasion, about his training or experience? A. There were just little things that, from memory, that I had asked, things like why didn't he go - the way that - whatever he was telling me at the time I was, I was quite impressed with what he was telling me and I did state to him "why didn't you go further with your studies and get right into the whole surgery side of things". Q. And I suggest to you that when you asked him why he didn't go further his response was "because I'm more interested in body piercing and the modern primitive movements", do you agree with that? A. No."
BB was asked about what risks were disclosed to her. She said she was told there would be a scar, there was a possibility of keloid scarring and that she should rest and not be active after the procedure. She denied that she was warned of the risk of internal pain, internal bleeding, or the risk of infection. She stated the Appellant said nothing about infection. Nor was she told of the possibility that (other than the risk of keloid scarring) the scarring could turn out poorly in appearance. She said: "I left there not thinking anything was going to go wrong. There was nothing put into my head that something could go wrong."
When asked whether she thought of the possibility of complications, she said: "No, I didn't. I just felt so confident, he made me feel so confident … I was more thinking of having a local anaesthetic put in my belly more than anything else, just my fear of needles that's all."
BB later said: "I can't remember word-for-word but whatever the [Appellant] was saying back then and the pictures that he was showing me he was just so confidant [sic] and he was very convincing. And I just felt like, I looked at him like family and I felt like I was in really good hands and he knew what he was doing, I would have no issues."
The Appellant complains that it was not open to her Honour to find that the Appellant told BB that he had "some surgical training". BB did not give evidence in those terms but, as can be gleaned from her evidence extracted above, it is clear that the Appellant told her things about his training and experience that impressed her. Further, she said that she asked why he did not go further with his studies and get right into "the whole surgery side of things".
Although we are not satisfied that it was open to her Honour to find that the Appellant told BB that he had surgical training, we are satisfied that he told her that he had "done that before" and that the picture or pictures he showed her were of a girl that "had had the same thing as what I wanted to have done" and that he "could do it for me."
We propose to re-sentence the Appellant on Count 2 on the basis that although he did not tell BB that he had surgical training, he told her that he had experience in terms which impressed her, and which added to the feeling of trust he fostered.
The trial judge also found that the Appellant told BB (and CC) that he was "capable of performing the procedures safely". Again, although he did not use those particular words, we are satisfied beyond reasonable doubt, as her Honour found, that the Appellant convinced BB (and CC) that he was sufficiently skilled to perform the procedures safely. This finding was made in the context of her Honour's observation that in doing so he created a degree of trust between himself and BB. In the light of the evidence set out above, that finding was open to her Honour and we propose to re-sentence on Count 2 on the same basis.
In these circumstances, we are not satisfied that her Honour erred in these factual findings.
Finally, as to the assessment of objective seriousness, we would not depart from the finding of the trial judge. We are not satisfied that it falls at the lowest end of the range as the Appellant contends. BB endured a high order of pain and suffered from the injury for ten days until she sought medical assistance. To the extent that the trial judge found the objective seriousness to be "below but not substantially below midrange", we note the recent decisions of this Court regarding such statements including Towse v R [2022] NSWCCA 252 at [12] and Kapua v R [2023] NSWCCA 14 at [121]-[123]. These decisions were recently referred to by Leeming JA in R v Walker [2023] NSWCCA 219 in which his Honour observed that, without meaning any criticism of the trial judge, distinctions such as "above the mid-range", "within mid-range" and "below the mid-range, but not appreciably so" are "inherently vague and poorly defined": at [2]-[3]. Despite this, his Honour went on to observe the following at [3]: "The self-evidently qualitative, rather than quantitative, descriptions by reference to a range, for all their limitations and imprecision, facilitate a measure of transparency, and thus assist in exposing the basis upon which a sentencing judge exercises a discretion. They may also permit a measure of agreement between the Crown and the offender at a sentencing hearing, or in the absence of agreement, they may assist to sharpen the parties' submissions on objective seriousness."
We propose to re-sentence the Appellant on the same finding of objective seriousness as her Honour did.

Challenged findings for Count 3

Ground 12 is a challenge to the finding of objective seriousness for Count 3 and ground 13 is a factual challenge to the finding regarding CC's knowledge of the Fetlife site. The Appellant's position was that the objective seriousness for Count 3 was at the bottom of the range. The following four findings of the trial judge are challenged under these grounds: 1. The factor of consent should have reduced the objective seriousness (ground 12). 2. The fact that CC only became seriously ill after her last appointment with the Appellant should have reduced the objective seriousness (ground 12). 3. There was a reasonable possibility that the intake of drugs by CC played a significant role in her sudden death and her failure to obtain medical treatment and this should have reduced the objective seriousness (ground 12). 4. It was not open to find beyond reasonable doubt that CC was aware of the representations in the Fetlife website (ground 13).
We shall consider these questions in turn.

The victim's consent should have reduced the objective seriousness of Count 3 (ground 12)

As with Count 2, the Appellant submitted that the trial judge erred in failing to adequately take into account the fact that the deceased had consented to the procedure. Her Honour's finding on Count 3 differed slightly from her finding for Count 2. With respect to Count 3, her Honour expressly found that consent was not a mitigating circumstance. The Appellant's submissions in relation to the relevance of CC's consent on the assessment of the seriousness of Count 3 were the same as those made in relation to Count 2.
The Crown advanced the same arguments in relation to the relevance of CC's consent on the assessment of the objective seriousness for Count 3 as well and submitted that CC's consent for the implant could not be considered real or genuine in the manner considered by McCarthy. This is because the evidence established a relationship of trust between the Appellant and CC, the Appellant held himself out to be competent to perform the procedure and he had no process for obtaining consent for body modification works: PJ [190] and [519]. It was submitted that there was ample evidence at the trial about the relationship between the Appellant and CC, the high regard she held him in, her interest in his body modification and the trust she placed in him for her body modification.
We have reached a similar conclusion about the relevance of consent as we did for Count 2, whilst accepting that the elements of the offences were different. CC's consent made the offending less serious than if she had not consented, but it was not a mitigating factor given the relationship of trust the Appellant built with CC. We are satisfied this is consistent with the principles derived from McCarthy.

The fact that CC only became seriously ill after her last appointment with the Appellant should have reduced the objective seriousness (ground 12)

The Appellant repeated the submissions on this issue that were made in relation to the conviction appeal, namely, that CC only became seriously ill after he saw her for the last time. He also challenged the trial judge's finding that she was gravely ill when she last presented to him.
The Crown disputed that the trial judge found that CC presented to the Appellant as being "gravely ill" on 10 April 2017. Rather, her Honour merely rejected the submission that CC was her "normal, happy self": Sentencing Reasons at [22].
We have already addressed the evidence of how CC was presenting to her friends and family in the days before her death under the grounds contending the conviction on Count 3 was unreasonable. The same conclusion applies here, namely, she was presenting as concerned, in pain and exhausted to her friends and family. She must have suspected by at least 11 April 2017 that her hand was infected as she filled a prescription for antibiotics that day. But when she expressed this suspicion to the Appellant during her telephone conversation with him later that day, he told her that her hand was not infected; only irritated. We are not satisfied that the objective seriousness for Count 3 is reduced by this factor.

There was a reasonable possibility that the intake of drugs by the deceased played a significant role in her sudden death and her failure to obtain medical treatment, and this should have reduced the objective seriousness (ground 12)

Her Honour found at PJ [674] that "[d]rug toxicity may have been a contributing factor." We have extracted her findings on this issue above at [412]. Her Honour found for the purposes of sentencing the Appellant that septicaemia was the sole cause of death, observing that "[m]any doctors commented that the deceased's high tolerance to prescription painkillers countered against a conclusion that drug toxicity contributed to her death."
We have found for the purposes of the conviction appeal that the contributing factor of multi-drug toxicity could not be excluded. Although we would re-sentence on this basis, the question is whether such a finding reduces the objective seriousness of the offence.
We are not satisfied that any contributing factor of multi-drug toxicity reduces the objective seriousness of the offending. The substantial or significant cause of death was sepsis. As her Honour found, one reason why the multi-drug toxicity did not reduce the objective seriousness was that the Appellant advised CC to take her migraine medication (which we know to be Lyrica) in their last phone call.

It was not open to find beyond reasonable doubt that CC was aware of the representations in the Fetlife website (ground 13)

The Appellant submitted that a material finding of fact which informed her Honour's assessment of the objective seriousness of Count 3 was that the Appellant held himself out to CC as having "full extensive surgical background or training" by virtue of a social media post on the Fetlife site which was a restricted site that was not accessible to the general public. It was submitted that the evidence did not permit such a finding to be made beyond reasonable doubt and that this factual error infected the sentencing exercise to a significant degree. It was submitted that the finding affected, at least in part, the trial judge's finding that a breach of trust was committed, which was an aggravating factor.
The agreed facts before the trial judge included that the Appellant maintained a Fetlife profile which was visible only to registered members of the Fetlife website. Fetlife is an adult social networking website. The "About Me" section of the Appellant's Fetlife profile states: "I am a Body Modifier/Piercer … with full extensive surgical background of training."
Her Honour found that it was fair to draw an inference that CC was aware of this restricted post. This was on the basis that she was a member of the "apparent inner circle as referred to by [MA]", that procedures undertaken on CC were posted on this site by MA, that CC referred to the Appellant as a god and told others of his skill, and that the evidence of the Appellant's wife was that CC was a close friend of the Appellant.
We have already found that CC trusted the Appellant and held him in very high regard. The finding that she would have been aware of the Fetlife post must be considered in the context of the evidence including that summarised at [226]-[235] above. Although it is to be accepted that there was no direct evidence of CC's knowledge of the Fetlife website, we are satisfied, given the weight of the evidence we have already referred to of CC's close support for the Appellant, that it was open to her Honour to make this finding beyond reasonable doubt.

Finding of objective seriousness: Count 3

Her Honour's finding of objective seriousness for Count 3 was "below mid-range but not significantly". Given the broad range of offending contemplated by the crime of manslaughter, it has been held that it is unhelpful to locate the objective seriousness on some metaphorical range. In Paterson v R [2021] NSWCCA 273, Beech-Jones CJ at CL (with whom R A Hulme and N Adams JJ agreed) observed the following in this regard at [32]-[33]: "Further, in relation to the assessment of objective gravity of an offence, where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania at [110] per Johnson J) and even more so with offences that do not carry standard non-parole periods. There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided."
Noting these remarks, and accepting the limitation on placing an act of manslaughter on a range of objective seriousness, we are not satisfied that the objective seriousness for Count 3 is at the "bottom of the range" as the Appellant contends. We propose to re-sentence the Appellant on the same finding of objective seriousness as her Honour did.

Re-Sentence

We would re-sentence the Appellant on the facts and factual findings set out above. The Appellant did not have a strong subjective case and very little was put before the trial judge by way of his background. While he had no criminal history, he did not suffer from a mental condition that would reduce his moral culpability, he had not expressed remorse or shown responsibility for his actions and her Honour was unable to assess his prospects of rehabilitation. We find ourselves in the same position.
In relation to Count 2, BB endured a high order of pain and suffered from the injury for ten days until she sought medical assistance. In relation to Count 3, the Appellant conducted an inherently dangerous procedure on CC without surgical training or skill. He did not have proper regard for hygiene or infection control, he failed to refer CC for medical attention when her hand became infected, he re-opened the wound, inserted a further implant, and did not provide proper treatment or after care.
The comparative cases relied on by the Appellant do not assist; they primarily concern matters where the offender failed to take action to seek medical treatment, whereas in the present matter the Appellant failed to refer CC for medical attention having performed the original procedure himself and having conducted an additional procedure on CC's hand near the infected site.
The Appellant relied on a number of decisions in support of his contention of manifest excess that assist on re-sentence to some extent, but they are very different cases. For example, in R v Eriksson [2001] NSWSC 781 the offender received a combined discount of 50% for her guilty plea and assistance to authorities such that her undiscounted sentence would have been 7 years. Similarly, in R v O'Brien [2003] NSWCCA 121 the offender received a discount of 33% such that his undiscounted sentence would have been 7 years and 6 months.
We have had regard to the two additional cases relied upon by the Crown. In Dowling v R [2020] NSWCCA 290, the offender assumed a duty of care by removing the deceased (who had been consuming drugs) from the possibility of others providing help, and then failed to obtain medical attention for him and he died of a drug overdose. The offender had a stronger subjective case than the Appellant. A sentence of 7 years imprisonment with a non-parole period of 4 years and 9 months was imposed. In R v Dominico Peter Turchino; R v HMF [2005] NSWSC 1214, the offender scalded her eight month old daughter in the bath and failed to obtain medical assistance. There was no intent to cause harm. The sentencing judge found that the offender's judgment was impaired by a drug induced psychosis and she was genuinely remorseful. A sentence of 5 years imprisonment with a non-parole period of 3 years and 9 months was imposed after discount for an early plea of guilty.
We have found these cases to be of assistance with respect to relevant sentencing principles, but it was common ground that there are no truly comparable cases in this matter.
The trial judge did not find special circumstances within the meaning of s 44(2A) of the Sentencing Act. That finding was not challenged in this Court. There was very little subjective material put before her Honour and the Crown did not support such a finding, submitting that there was no material that would justify it. No submission was put on behalf of the Appellant that we would find special circumstances on re-sentence. We propose to take the same approach as the trial judge on this issue.
We propose to impose an aggregate sentence in this matter. The indicative sentences are as follows: 1. Count 2: 2 years and 3 months, with a non-parole period of 20 months. 2. Count 3: 6 years and 6 months.
We note that the offences of manslaughter and inflicting grievous bodily harm with intent are "serious violence offence[s]" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW) and pursuant to s 25C of that Act the applicant is advised of the existence of that legislation and its application to Counts 2 and 3.
The orders of the Court are as follows: 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.

Amendments 20 November 2023 - Minor amendment to paragraph 1 of headnote. Changed "NSWSC" to "NSWDC". 22 April 2024 - Minor clerical errors at paragraphs [9], [20], [23], [45]-[48], [56], [57], [59], [63], [66], [77], [79], [87]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2024

Crimes Amendment (Female Genital Mutilation) Act 2014(NSW)

Crimes (Female Genital Mutilation) Amendment Act 1994(NSW)

Private Health Facilities Regulation 2010(NSW)

Private Health Facilities Regulation 2017(NSW)

Crimes Act 1900(NSW)ss 4, 18(1)(b), 33(1)(b), 43A(1), 45, 60DF, 61AA(6), 66EB(1), 91FA, 93AC(1)

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