The limits of personal autonomy – consent no defence to grievous bodily harm*

Michael Gleeson

Russell v R [2023] NSWCCA 272

In Russell v R [2023] NSWCCA 272, the Court of Criminal Appeal (‘CCA’) considered challenges to convictions of an ‘extreme body modification artist’ for offences of female genital mutilation, grievous bodily harm, and manslaughter. Significantly, the court (Bell CJ, Stern JA, N Adams J) held that, subject to well-established exceptions, a person cannot consent to the infliction of grievous bodily harm.

The court also held that s 45(1) of the Crimes Act 1900 (NSW) (‘the Crimes Act’), which prescribes an offence of female genital mutilation, should be confined to cases in which the proscribed acts are performed on female children as a result of ritualistic practices. The approach to statutory construction which led to this result acknowledged that there is no textual support in the statute for this confinement. However, the court held that, consistent with the important role of purpose in statutory interpretation, the section should be read down by reference to its purpose as identified in ‘seriously considered dicta’ by the majority in The Queen v A2 (2019) 269 CLR 507 (‘A2’).


Mr Russell (the appellant) traded as an ‘extreme body modification artist’ at Erina Fair and as a body piercer at a tattoo studio in Newcastle. He was found guilty after a trial by judge alone of: (a) Female genital mutilation contrary to s 45(1)

(a) of the Crimes Act (count 1). This concerned a complainant who attended the Newcastle studio where the appellant, with the complainant’s consent, excised all of the right labia minora and the anterior half of the left labia minora. The appellant was not a medical practitioner or similar and so did not fall within the exceptions prescribed in s 45.

(b) Causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act (count 2) in respect of a different complainant who attended the Erina business where the appellant, at the complainant’s request, removed skin and flesh from her abdomen.

(c) Manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act (count 3). The deceased attended the Newcastle studio for procedures including scarification, implants, and reshaping nipples. She died after the appellant repositioned a silicon snowflake-shaped implant in her right hand. The substantial cause of death was, on the Crown case, sepsis, septic shock, or septicaemia.

The trial judge sentenced Mr Russell to imprisonment for 10 years with a non-parole period of 7 years and 6 months.

The CCA allowed in part Mr Russell’s appeal against conviction and sentence. The CCA dismissed the appeal in respect of counts 2 and 3 (grievous bodily harm and manslaughter), holding in respect of count 2 that a person cannot consent to the infliction of grievous bodily harm. The appeal in respect of count 1, female genital mutilation, was upheld. Mr Russell’s conviction for that count was quashed and a verdict of acquittal entered. He was re-sentenced to an aggregate sentence of seven years imprisonment with a non-parole period of five years and three months.

Section 45 of the Crimes Act (female genital mutilation)

Section 45(1) refers to mutilation of the labia majora, labia minora or clitoris ‘of another person’ or ‘on another person’ and does not refer to ‘ritualistic practices’. The appellant argued that s 45(1) only applies to children and female genital mutilation when performed as part of a ritualistic tradition. The complainant was not a child when the relevant procedure took place, nor was the ‘labiaplasty’ traditional or ritualistic.

The CCA accepted that there was no textual support for confining the operation of s 45(1) of the Crimes Act to female children: at [27]. Further, the court stated:

… but for the decision in A2, for the seven reasons advanced, 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.

The appellant’s arguments concerning the constraint on s 45(1) turned entirely on the High Court’s decision in A2. In A2, the majority referred to the purpose of s 45(1) as being for the benefit and protection of children, which the CCA observed was unsurprising given that A2 involved children between six and eight years in age. However, while the question of the scope of s 45(1) and the meaning of ‘of another person’ and ‘on another person’ formed no part of the ratio decidendi in A2, what was said in unqualified language as to the purpose of s 45 amounted to ‘seriously considered dicta’.1 This required that s 45(1) should be read down by reference to what the majority of the High Court said, culminating in count 1 being quashed.

Grievous bodily harm and consent

The conviction on count 2 concerned a botched procedure referred to as an ‘abdominoplasty’ or ‘tummy tuck’, involving removing skin from the complainant’s abdominal area. This resulted in adverse health outcomes for the complainant, and she required emergency corrective surgery, which left significant scarring on her abdomen. It was not in dispute that she consented to the procedure in the broad sense in which consent is used in the criminal law, that is, to a medical procedure as required to negate the offence of battery.

It was found at trial that Mr Russell undertook what was in effect a quasi-medical procedure in unhygienic circumstances 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.

On appeal, the question was whether consent lies as a defence to a count of infliction of grievous bodily harm.

The appellant sought to build a philosophical argument relying in part upon the observations of McHugh J in Perre v Apland (1999) 198 CLR 180: at 223. It was argued 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).2

The appellant’s 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. It was advanced that, otherwise, 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.

The Director of Public Prosecutions submitted that under the common law of Australia, Canada, and the United Kingdom, a person cannot consent to the infliction of grievous bodily harm other than in certain exceptional instances which did not apply; nor was the present case analogous to any accepted exception. The common law recognises that personal bodily autonomy is not an absolute value in the law.3

The CCA undertook a detailed analysis of leading case law from common law jurisdictions. Many of the cases were factually illuminating, including consenting bare-knuckle prize fighters in England,4 a bar fight gone horribly wrong in Canada,5 and an exorcism performed in New Zealand.6 After reviewing the key authorities (including the seminal House of Lords decision R v Brown [1994] AC 212), relevant literature, and overseas legislation,7 the CCA ruled 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.

One of the key difficulties the appellant faced is that Parliament has now signalled that abdominoplasty as a form of cosmetic surgery must not be performed at a private health facility that is not licensed. The appellant was not qualified, and the procedure did not take place at a licensed private health facility. The fact that this statutory regime was not in force until after the appellant performed the ‘surgery’ was not the point: the appellant was not charged with a breach of s 33A of the Private Health Facilities Act 2007 (NSW). Rather, that regime was consistent with the CCA’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 licensed premises. BN

* subject to well-established exceptions.
1 See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
2 McHugh J noted that complete autonomy was not possible in any organised society: Perre v Apland (1999) 198 CLR 180: at 223.
3 Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 (’Marion’s Case’) (McHugh J.).
4 R v Coney (1882) 8 QB 534.
5 R v Jobidon [1991] 2 SCR 714.
6 R v Lee [2006] CRNZ 568.
7 s 71 of the Domestic Abuse Act 2021 (UK).

Michael Gleeson

Wardell Chambers