Piercing the Limits: The Defence of Consent in Russell v R

Possessing an acute understanding of the distinction between lawful activity and unacceptably harmful conduct, ultimately requires thoughtful contemplation of how the value of personal autonomy ought to be weighed against the need for public safety. The formula to strike a successful balance between the two is relevant far beyond the courtroom of one case,  and will continue to generate future debate in both courts and academic discourse.

Evidence Act 1995 (NSW) (‘Evidence Act’)

Interpretation Act 1987 (NSW)

• Mr. Russell, an extreme body modification artist, was convicted of FGM, GBH and manslaughter, with the court examining the role of consent and the interpretation of s 45(1) of the Crimes Act. He argued on appeal that consent should negate GBH liability and that the FGM charge was misapplied. The Court of Criminal Appeal upheld the GBH and manslaughter convictions, ruling that consent cannot generally excuse GBH, but overturned the FGM conviction, interpreting s 45(1) as limited to ritualistic practices involving children, reducing his sentence to 7 years.

R v Brown [1993] UKHL 19

• Five men were convicted for engaging in consensual sadomasochistic acts that caused actual bodily harm, discovered during an unrelated investigation, under the Offences Against the Person Act 1861 (UK). The appellants argued that consent should be a valid defence, likening their activities to accepted practices like tattooing and piercing, but the court deliberated whether such consent absolved liability for intentional harm. The House of Lords, in a 3-2 decision, ruled that consent was not a defence for causing actual bodily harm, citing public policy concerns about moral corruption, unpredictability, and a lack of justification beyond sexual gratification.

R v Coney (1882) 8 QBD 534

• Two men engaged in a prize fight in a makeshift ring near a road, drawing a crowd that included Coney and others, who stayed to watch and were subsequently charged with assault for allegedly aiding and abetting the fight. The court held that consent to injuries in prize fights is irrelevant because such fights are injurious to public interest, involve a breach of the peace, and pose risks to life and health, rendering mutual blows unlawful assaults. Thus, Coney could be held liable for aiding and abetting an assault and the assault was not negated by the fighters’ consent.

The Queen v A2 (2019) 269 CLR 507

• The High Court examined the interpretation of s 45(1)(a) of the Crimes Act, which prohibits FGM, in a case involving charges against A2, Magennis, and Vaziri for performing a ritual called “khatna” on two young girls. The defendants argued that “mutilates” required irreparable damage and that “clitoris” did not include the clitoral hood. The High Court overturned the appellate court’s decision, ruling that “mutilates” should be interpreted broadly to include acts like cutting or nicking and that “clitoris” encompasses the hood, remitting the case for consideration of other appeal grounds.

Perre v Apand Pty Ltd (1999) 198 CLR 180

• The High Court considered whether a manufacturer of potato seeds owed a duty of care to farmers who suffered economic loss due to an infected batch of seeds that led to a trade ban in their region. The court emphasised the importance of respecting individual autonomy, particularly in commercial dealings, avoiding rigid frameworks for establishing duties of care that could overly restrict private arrangements or commercial freedom. This discussion of autonomy relates to cases involving consent to GBH by reinforcing that autonomy – whether in consenting to harm or managing private risks – must be carefully balanced against broader legal and policy concerns to prevent abuse or unjustifiable impositions.

• Mr. Russell was convicted on three counts of extreme body modification procedures in Newcastle, New South Wales, and sentenced to 10 years in prison, later reduced on appeal. One of the charges involved female genital mutilation, where he performed a labiaplasty procedure on a victim known as AA without fully obtaining her consent, resulting in partial excision of her labia minora.
• Mr. Russell also performed an abdominoplasty on a female victim named BB, resulting in adverse health outcomes and significant scarring, leading to emergency corrective surgery.
• Section 45(3) of the Crimes Act specifies the exceptions to a charge of FGM, including performing surgical operations by medical practitioners is not considered an offence, such as when necessary for the person’s health, in labour, or for medical purposes post-labour or birth, including sexual reassignment procedures. Section 45(4) specifies that only medical factors should be considered when determining if an operation is necessary for a person’s health.
• Mr. Russell’s defence team, including Mark Tedeschi, argued for the reading down of section 45(1) of the Crimes Act based on the case of A2, which focused on the protection of children. Despite the lack of explicit guidance in A2, the Court of Criminal Appeal followed its dicta to quash the FGM count against Mr. Russell.
• Mr. Russell was found to owe a duty of care to BB, the victim of the third charge in the case; manslaughter.
• In sports, such as boxing, the law takes a step back, allowing individuals to consent to assault. This is particularly the case in sanctioned, affiliated matches, as opposed to unsanctioned fights.
• Both sides in a legal case have the chance to influence the outcome by presenting arguments and evidence on behalf of their clients. This process allows for the defense to actively participate and shape the case through submissions.

• If you are a law student or junior lawyer, it is recommended that you read Judge Syme’s decision from the District Court linked below, particularly focusing on Her Honour’s handling of the grievous bodily harm charge.
• Cosmetic procedures are gaining popularity and body modification is becoming increasingly complex. Consult a medical expert to understand the necessity and potential health reasons behind such procedures. Use expert evidence in determining what is medically necessary under section 79 of the Evidence Act.
• The criminal law is rapidly evolving, specifically around domestic violence, with recent coercive control laws in New South Wales reflecting this shift. With this evolution, lawyers should take a common-sense approach when assessing cases.
• Having mentors in the legal profession is crucial, as they provide encouragement and valuable advice. As you start your career, remember to ask questions and be proactive in seeking guidance from experienced professionals.
• We love this advice from Michael: “Good luck. Roll up your sleeves. Don’t be afraid to ask questions. Hustle. Do good and fear no one.”

R v Russell [2021] NSWDC 782

Bar News, Autumn 2024 Edition

In this episode of Hearsay, we’re going to be talking about the implications of a recent New South Wales Criminal Court of Appeal decision, Russell v R. Now this landmark decision grapples with some complex legal questions about the concept of consent as a defence to different kinds of assault, including assault occasioning grievous bodily harm. As non-traditional practices that challenge conventional notions of consent become more popular, like body modification, sadomasochism, it becomes increasingly important to fine tune how consent can be offered or restricted in answer to different criminal offences.

Now, possessing an understanding of the distinction between lawful activity and unacceptably harmful conduct ultimately requires some thoughtful contemplation of how the value of personal autonomy ought to be weighed against the need for public safety – something that’s intrinsically a public policy question. The formula to strike a successful balance between the two is relevant beyond the courtroom of one case and will continue to generate some future debate in courts, policy, and academic discourse.

Joining us today to unpack all of these complexities and nuances and contemplate the potential implications of the future landscape of criminal law and other fields of law is Michael Gleeson, Crown Prosecutor at the Office of the Director of Public Prosecutions.

Michael, thank you so much for joining me on Hearsay.

TIP: Okay, so we just talked about a charge of female genital mutilation in the case of Russell v R. In examining the court’s ruling on this case, it’s helpful to understand the broader context of the offence of female genital mutilation and how it came to be a specific and discrete offence under the law. 

According to the World Health Organisation, female genital mutilation affects an estimated 200 million women and girls globally. Each year, it’s estimated that 5 million women and girls have been affected by female genital mutilation, which amounts to 8,000 people every day, or one person every three minutes. So this is a huge problem worldwide. It’s important to note that the reasons for this practice vary widely, and although it’s often associated with religious or cultural traditions, the issue of female genital mutilation is a global issue, and it’s not limited to any particular nation or faith. In fact, using figures from the 2018 Australian Census, the Australian Institute of Health and Welfare released a report in 2019 suggesting that there’s about 53,000 women and girls living in Australia who’ve been affected by female genital mutilation. 

In 1994, the Family Law Council in Australia released a report on female genital mutilation, recommending that legislation be enacted to make it a criminal offence and classify it as a form of child abuse under Australian child protection laws. Today, it’s a criminal offence under state based laws in every state and territory in Australia. In New South Wales, as we’ve just mentioned, it’s now specifically prohibited under section 45 of the NSW Crimes Act. It states that a person must not excise, infibulate or mutilate the whole or any part of the labia minora, the labia majora, or the clitoris of any person, nor aid, abet, counsel or procure another person to perform any of those acts. It’s also illegal for a person to take a girl out of NSW or arrange for someone else to do so with the intention of having female genital mutilation performed on her. Anyone found guilty of this offence can face a prison sentence of up to 21 years. 

Now, the data suggests that this is rarely reported to authorities. According to available NSW police force data, between 1998 and 2014, so a 16 year period, there have only been 3 incidents of female genital mutilation resulting in charges, totaling 10 individuals charged. There are some defences available under section 45(3), including cases where medical practitioners are performing procedures that are otherwise defined as female genital mutilation for medically necessary reasons. Notably though, there’s no definition provided on what might be considered medically necessary. As Michael says in this episode, that’s best left to expert evidence and what a medical practitioner might say is medically necessary in the circumstances.

So I think during the debate that we’re going to have to explain what arguments were put up by both sides, which I’m happy to do, but you’re quite right. So that charge of female genital mutilation is now enshrined in section 45 of the Crimes Act 1900 (NSW) but Mr. Russell faced another charge, David, and that was one count of grievous bodily harm with intent, and this concerned what’s known as an abdominoplasty, or tummy tuck procedure, and that was performed on, again, another female victim known as BB in the court case, but it involved removing skin from BB’s abdominal area. Again, conducted with BB’s consent, and that procedure, so that’s count two, the grievous bodily harm, resulted in adverse health outcomes, which required emergency corrective surgery, and it left BB with significant scarring.

TIP: Section 79 of the Evidence Act is perhaps better known as the expert evidence rule. It provides an exception to the inadmissibility of opinion evidence where that opinion is based on specialised knowledge based on the person’s training, study or experience and the opinion that they provide is based wholly or substantially on that specialised knowledge. For example, this might include a medical practitioner providing an opinion on what they believe is medically necessary under section 45 but again, that has to be based on their particular specialised knowledge, so a neurologist’s opinion on whether heart bypass surgery is necessary wouldn’t cut it. Section 79 and the scope of specialised knowledge based on training, study, or experience, was considered by the Court of Criminal Appeal in R v A2. In that case, the trial judge had originally admitted evidence of a Dr. X under section 79. This evidence was based on sociological studies of a traditional practice of a community in India, but the Court of Criminal Appeal ruled that that opinion was speculative and not actually based on any area of specialised knowledge held by the expert, and found that evidence to be inadmissible. R v A2 was appealed to the High Court, but that particular ruling was not. 

TIP: Okay, so we’ve just mentioned the case of Perre v Apand. The full citation for that one is Perre v Apand (1999) 198 CLR 180 for those playing at home. Now in that case the High Court of Australia was tasked with determining whether Apand Pty Ltd, a manufacturer of potato chips – yum – owed duty of care to potato farmers, including the Perre family, who suffered economic loss as a result of Apand’s actions. Basically Apand had sold an infected batch of potato seed to the Sparnons, a neighbouring farm to the Perres, which led to an outbreak of bacterial wilt on that neighbouring farm. 

Now, due to some Western Australian laws in place at the time, any farms within a 20 kilometre radius of an infected property were also banned from exporting potatoes from Western Australia for five years. Now, the Perres, their farm fell within this radius of neighbouring farms to the farm affected by the bacterial wilt, so they lost their ability to sell potatoes in Western Australia, which was a highly profitable market. 

Now, in determining whether a duty of care was owed, the court underscored the importance of not overly encroaching into personal and private arrangements, especially where individuals act with full knowledge and informed consent. The majority of the judges emphasised the value of individual autonomy in commercial and personal dealings, rejecting rigid frameworks or strict tests for identifying new duties of care. 

For example, Chief Justice Gleeson dismissed concepts like proximity, fairness, or reliance, as used in previous cases in England, to avoid overly restrictive approaches to establishing duties of care. Justice Gummow similarly rejected incremental tests that might unduly limit the use of flexibility in considering novel cases. Instead, the judges looked at the individual circumstances of this case, examined contextual factors like Apand’s knowledge of the risk posed to nearby farmers and the inability of the Perres to protect themselves. Justice Callinan highlighted the physical proximity of the parties, but ultimately stressed that any duty imposed on Apand should not unreasonably restrict its commercial autonomy.

So the judgements showed a nuanced use of both proximity, like geographic closeness and knowledge, and policy considerations, like concerns about indeterminate liability and commercial autonomy. Justice McHugh’s approach in the judgement illustrated an incremental analysis of relevant past cases, focusing on factors like plaintiff vulnerability and the defendant’s knowledge, while warning against imposing duties that would unreasonably hinder the defendant’s autonomy. 

The net result from all of these individual judgements was an outcome that favoured a balanced, flexible approach that respects personal and commercial autonomy and resists imposing burdensome duties, where informed private dealings between parties can adequately address risks. Hopefully that explains why Mr. Tedeschi cited a commercial equity dispute in a criminal law matter involving grievous bodily harm.

In short, it was advanced by Mr. Tedeschi that consent to the infliction of bodily harm, even of a serious kind, falling within the ambit of grievous bodily harm, should be permitted unless overridden by statute. So that was Mr. Russell’s argument. I must say, if you trawl through the historical cases, which you and I will hopefully get to discuss some of the more interesting cases in this area, which hopefully we can provide a link to, David, in due course, a link to the article that I prepared for the New South Wales Bar Association.

TIP: So we just mentioned the well known English case of R v Brown that was a 1994 UK case, and as Michael just noted, that case might be distinctly remembered by a lot of law students for the, well, peculiar detail involving the consensual nailing of penises to wooden boards. That case involved five men who participated in consensual sadomasochistic sexual activities leading to physical harm, including actual bodily harm. None of the participants complained about the acts, but they were discovered during an unrelated police investigation. Despite their consent, all of the appellants were convicted under the Offences Against the Person Act 1861, the relevant legislation in the UK, as the trial judge ruled that consent was not a valid defence to causing actual bodily harm. The appellants sought to challenge this, arguing that consent should exempt them from conviction, especially since their activities were, as they said, analogous to legally accepted practices like tattooing and body piercing. 

The question before the House of Lords was whether the prosecution had to prove a lack of consent when harm was caused during sadomasochistic encounters. In a 3-2 majority decision, so a very narrow split decision, the Lords ruled that consent would not be a defence to charges under section 20 and 47 of the 1861 Act, which cover wounding and causing actual bodily harm. 

Lord Templeman argued that society has a duty to protect itself against violence, stating that deriving pleasure from pain is evil and that such acts were unpredictable and degrading. Lord Jauncey supported this view, emphasising that bodily harm without good reason is unlawful regardless of consent. He noted that sadomasochistic acts, especially when recorded on video, posed risks of moral corruption and lacked a justifiable purpose beyond sexual gratification. Both Lords concluded that it was not in the public interest to allow such acts to be considered lawful, and Lord Lowry agreed with them, arguing that the appellants’ claim seeking exemption from legal provisions meant to prevent harm was untenable. He also dismissed the appellant’s argument relying on the European Convention on Human Rights, stating that there was no human right to engage in acts that inevitably caused bodily harm. 

Now some legal scholars have criticised this judgement that relies upon concepts like moral corruption and the dangers of sadomasochism, with some calling it paternalistic and restrictive, critics argue that the law unfairly criminalises consensual acts between adults, while other plainly harmful activities like binge drinking or smoking aren’t punished similarly. There’s clearly an inconsistency between certain acts being lawful and Lord Jauncey’s statement that bodily harm without good reason is unlawful regardless of consent. There is also some ongoing debate about whether other harmful practices, like non-therapeutic cosmetic surgery, should be treated similarly under the law. Nonetheless, the ruling in R v Brown has remained influential in shaping legal perspectives on consent and bodily harm in actual bodily harm and grievous bodily harm cases.

It’s interesting, again, and I’d encourage our listeners, David, to have a look at the cases that I’ve cited in the article that I undertook for the New South Wales Bar Association and I cover off, I think, most of the leading case law from the common law jurisdictions in the article with, as I said in the article, just quickly, the cases considered were factually illuminating, and in a very quick run through, some included consenting to bare knuckle prize fighting in England, a bar fight gone horribly wrong in Canada, and an exorcism performed in New Zealand.

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