R v Russell [2021] NSWDC 782

R v Russell [2021] NSWDC 782

Section 45(1) of the Crimes Act 1900 applies to all persons regardless of age, ritual or consent, criminalising the excision of labia minora by unqualified persons. Consent is not a defence to either female genital mutilation or causing grievous bodily harm under Australian law. The accused's conduct in excising AA's labia minora constituted an offence under s 45. The procedure performed by the accused on BB caused grievous bodily harm with intent, and subsequent removal or improvement of scarring does not negate the original disfigurement. In respect of CC, the accused owed a duty of care by virtue of a trusting and contractual relationship, breached that duty grossly, failed to manage...

Parties
Prosecution: Regina (Crown); Accused: Brendan Leigh Russell
Jurisdiction
Australia
Judgment Date
15 November 2021
Procedural Posture
Criminal / Trial, Verdict and Reasons
Outcome
guilty on counts 1, 2 and 3
Legal Topics
Female Genital Mutilation, Grievous Bodily Harm, Manslaughter, Consent, Duty of Care, Body Modification, Criminal Negligence
Criminal Law Female Genital Mutilation Grievous Bodily Harm Manslaughter Consent Duty of Care Body Modification Criminal Negligence

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Parties

Regina (Crown)

Prosecution

Brendan Leigh Russell

Accused

Procedural Posture

Criminal / Trial, Verdict and Reasons

Legal Issues

  1. 1 Whether s 45 of the Crimes Act 1900 applies to adults and/or cosmetic procedures
  2. 2 Whether consent is a defence to grievous bodily harm and female genital mutilation
  3. 3 Whether the conduct caused grievous bodily harm (Count 2)

Ratio Decidendi

Section 45(1) of the Crimes Act 1900 applies to all persons regardless of age, ritual or consent, criminalising the excision of labia minora by unqualified persons. Consent is not a defence to either female genital mutilation or causing grievous bodily harm under Australian law. The accused's conduct in excising AA's labia minora constituted an offence under s 45. The procedure performed by the accused on BB caused grievous bodily harm with intent, and subsequent removal or improvement of scarring does not negate the original disfigurement. In respect of CC, the accused owed a duty of care by virtue of a trusting and contractual relationship, breached that duty grossly, failed to manage...

Court Disposition

guilty on counts 1, 2 and 3

Orders

  • The accused is found guilty of count 1: excising part of the labia minora contrary to s 45 of the Crimes Act 1900.
  • The accused is found guilty of count 2: causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act 1900.