Russell v R

1. [1]

   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. (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. (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. (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.

2. [2]

   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. (1)

      Count 1: 3 years and 6 months.

   2. (2)

      Count 2: 2 years and 6 months, with a non-parole period of 1 year and 10 months.

   3. (3)

      Count 3: 7 years.

3. [3]

   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.

4. [4]

   It was an agreed fact at trial that “body modification” means:

5. [5]

   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:

Notice of Appeal

1. [6]

   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:

2. [7]

   The Appellant also sought leave to appeal from his sentence on the following grounds:

Ground 1

1. [8]

   The first ground of appeal related to Count 1 on the indictment.

2. [9]

   The facts were not in dispute and were agreed as follows:

3. [10]

   Section 45 of the Crimes Act provides:

4. [11]

   The trial judge held that:

5. [12]

   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.

6. [13]

   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.

7. [14]

   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.

8. [15]

   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].

9. [16]

   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].

10. [17]

    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:

11. [18]

    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:

12. [19]

    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:

13. [20]

    Similarly, Edelman J referred to:

14. [21]

    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.

15. [22]

    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.

16. [23]

    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].

17. [24]

    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.

18. [25]

    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.

19. [26]

    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:

20. [27]

    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. (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. (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. (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:

    4. (4)

       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;

    5. (5)

       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”;

    6. (6)

       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;

    7. (7)

       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.

21. [28]

    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.

22. [29]

    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.

23. [30]

    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.

24. [31]

    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.

25. [32]

    We consider that authority dictates that it should.

26. [33]

    Section 33 of the Interpretation Act, upon which heavy reliance is placed, provides:

27. [34]

    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:

28. [35]

    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.”

29. [36]

    Bell P continued (at [34]-[39]) that:

30. [37]

    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].

31. [38]

    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

1. [39]

   The second ground of appeal related to Count 2 on the indictment.

2. [40]

   The agreed facts in respect of Count 2 were as follows:

3. [41]

   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”.

4. [42]

   At PJ [258]-[259], the trial judge found the following with respect to the procedure conducted by the Appellant on BB:

5. [43]

   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].

6. [44]

   With respect to intent, the trial judge at PJ [278] found the following:

7. [45]

   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:

8. [46]

   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:

9. [47]

   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].

10. [48]

    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.”

11. [49]

    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).

12. [50]

    At a less philosophical level, the submission was that:

13. [51]

    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.

14. [52]

    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.

15. [53]

    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.

16. [54]

    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.

17. [55]

    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:

18. [56]

    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:

19. [57]

    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):

20. [58]

    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).

21. [59]

    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):

22. [60]

    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):

23. [61]

    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):

24. [62]

    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).

25. [63]

    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:

26. [64]

    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.

27. [65]

    In so concluding, his Honour reasoned (at 765-766) that:

28. [66]

    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):

29. [67]

    Brennan J (at 267) citing Pallante, expressly stated that:

30. [68]

    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):

31. [69]

    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).

32. [70]

    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.

33. [71]

    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.

34. [72]

    Forming part of the majority, Lord Templeman held at 231:

35. [73]

    Lord Jauncey, who also formed part of the majority in Brown, reasoned (at 244-245) that:

36. [74]

    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.

37. [75]

    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.

38. [76]

    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:

39. [77]

    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:

40. [78]

    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:

41. [79]

    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”.

42. [80]

    In delivering the judgment of the Court, Glazebrook J said that:

43. [81]

    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.

44. [82]

    Although in Lee, the Court said (at [261]) that:

45. [83]

    While Lee ultimately eschewed a line-drawing approach, there is considerable force in our opinion in what the Court of Appeal said at [301]:

46. [84]

    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:

47. [85]

    Kellam JA went on to consider the ex tempore decision of McIntosh:

48. [86]

    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:

49. [87]

    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.

50. [88]

    In holding that body modification procedures should not be placed in the special category of exemptions from the general rule, his Lordship reasoned that:

51. [89]

    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.

52. [90]

    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:

53. [91]

    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.

54. [92]

    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).

55. [93]

    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].

56. [94]

    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.

57. [95]

    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.

58. [96]

    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.

59. [97]

    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.

60. [98]

    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.

61. [99]

    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

1. [100]

   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:

2. [101]

   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.”

3. [102]

   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:

4. [103]

   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.

5. [104]

   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.

6. [105]

   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).

7. [106]

   The advocate appearing for the Appellant at trial made an application for a Shepherd direction during his closing address in this way:

8. [107]

   He then went on to submit the following:

9. [108]

   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:

10. [109]

    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.

11. [110]

    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):

12. [111]

    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].

13. [112]

    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]:

14. [113]

    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]:

15. [114]

    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):

16. [115]

    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]:

17. [116]

    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):

18. [117]

    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.

19. [118]

    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.

20. [119]

    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:

21. [120]

    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].

22. [121]

    At PJ [672], which immediately follows the heading “Causation” her Honour again correctly stated the relevant standard of proof as follows:

23. [122]

    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]:

24. [123]

    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.

25. [124]

    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:

26. [125]

    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):

The applicable principles

1. [126]

   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):

2. [127]

   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]:

3. [128]

   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.

4. [129]

   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):

5. [130]

   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].

6. [131]

   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]:

7. [132]

   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.

8. [133]

   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.

9. [134]

   In Royall, Deane and Dawson JJ held (at 411) that what amounts to a substantial or significant cause depends upon the jury determining:

10. [135]

    Their Honours held (at 412), that:

11. [136]

    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.

12. [137]

    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.

13. [138]

    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.

14. [139]

    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.

15. [140]

    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.

16. [141]

    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.

17. [142]

    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.

18. [143]

    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.

19. [144]

    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:

20. [145]

    Her Honour (at [89]) then excluded the other possible causes on the basis that they:

21. [146]

    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

1. [147]

   Grounds 3, 8 and 9 of the Appellant’s grounds of appeal focus attention upon the issue of causation of CC’s death.

2. [148]

   In oral submissions, the Appellant’s contentions as to causation raised three issues.

3. [149]

   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.

4. [150]

   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.

5. [151]

   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.

6. [152]

   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.

7. [153]

   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.

8. [154]

   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.

9. [155]

   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.

10. [156]

    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.

11. [157]

    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.

12. [158]

    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.

13. [159]

    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. (1)

       MA was the Appellant’s business and intimate partner at the time of the procedure performed on, inter alia, CC.

    2. (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. (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. (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. (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. (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. (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. (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. (9)

       Wayne Shackleton is married to Natalie and is Emily’s father. He saw CC for dinner the night she died.

14. [160]

    The evidence of the following three medical practitioners was of some significance at the trial:

    1. (1)

       Dr Quinten Willemse was CC’s regular general practitioner (GP).

    2. (2)

       Dr Leon Van der Walt was a relief GP who saw CC on the day before she died.

    3. (3)

       Professor Jonathan Sturm was CC’s treating neurologist who also saw her on the day before she died.

15. [161]

    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.

16. [162]

    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.

17. [163]

    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.

18. [164]

    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.

19. [165]

    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.

20. [166]

    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].

21. [167]

    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.

22. [168]

    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.

23. [169]

    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.

24. [170]

    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).

25. [171]

    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”.

26. [172]

    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”.

27. [173]

    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.

28. [174]

    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”.

29. [175]

    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.

30. [176]

    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:

31. [177]

    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.

32. [178]

    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.

33. [179]

    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.

34. [180]

    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”.

35. [181]

    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:

36. [182]

    When asked what happened next Ms Bergan gave this answer:

37. [183]

    Ms Bergan looked after CC’s daughter whilst she went to visit Transition for the second time that day.

38. [184]

    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”.

39. [185]

    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.

40. [186]

    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.

41. [187]

    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.

42. [188]

    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.

43. [189]

    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.

44. [190]

    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.

45. [191]

    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”.

46. [192]

    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.

47. [193]

    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.

48. [194]

    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”.

49. [195]

    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:

50. [196]

    Professor Sturm further noted that he had not recorded conducting a physical examination of CC and it is likely that he did not.

51. [197]

    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.

52. [198]

    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.

53. [199]

    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”.

54. [200]

    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”.

55. [201]

    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”.

56. [202]

    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.

57. [203]

    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.

58. [204]

    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.

59. [205]

    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:

60. [206]

    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”.

61. [207]

    In cross-examination the following portion of Natalie’s statement was put to her about this last time she saw CC:

62. [208]

    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.

63. [209]

    CC died sometime between 1.30 am and 6 am on 12 April.

64. [210]

    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.

65. [211]

    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.

66. [212]

    Daniel Strong, a paramedic, arrived at 6.39 am and the paramedics took over CPR. CC was confirmed deceased at 7.10 am.

67. [213]

    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.

68. [214]

    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.

69. [215]

    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.

70. [216]

    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.

71. [217]

    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[?]”.

72. [218]

    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.

73. [219]

    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.

74. [220]

    As stated above, some of the witnesses gave evidence of the Appellant’s practices generally which the Crown relied upon as tendency evidence.

75. [221]

    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.

76. [222]

    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.

77. [223]

    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”.

78. [224]

    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”.

79. [225]

    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.”

80. [226]

    Several witnesses gave evidence about the relationship of trust between CC and the Appellant and the high regard that CC held him in.

81. [227]

    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.

82. [228]

    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”.

83. [229]

    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.

84. [230]

    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.

85. [231]

    Dr Willemse, CC’s GP, also gave evidence of conversations he had with CC about her body modification as outlined below.

86. [232]

    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:

87. [233]

    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):

88. [234]

    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”.

89. [235]

    He gave this evidence as to how CC viewed the Appellant:

90. [236]

    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.

91. [237]

    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.

92. [238]

    He explained:

93. [239]

    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.

94. [240]

    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.

95. [241]

    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.

96. [242]

    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.

97. [243]

    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.

98. [244]

    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

1. [245]

   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.

2. [246]

   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:

3. [247]

   Her Honour went on to summarise her findings as to the Appellant’s duty of care to CC at PJ [500] as follows:

4. [248]

   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:

5. [249]

   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:

6. [250]

   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.

7. [251]

   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:

Challenges to factual findings

1. [252]

   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.”

2. [253]

   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.

3. [254]

   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.

4. [255]

   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.

5. [256]

   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.

6. [257]

   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

1. [258]

   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.

2. [259]

   On the evidence before the trial judge here, there were potentially four ways in which CC’s death might have been caused.

   1. (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:

   2. (2)

      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.

   3. (3)

      By reason of the combined effect of sepsis and multi-drug toxicity.

   4. (4)

      From an unascertained cause.

3. [260]

   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.

4. [261]

   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.

5. [262]

   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.

6. [263]

   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”.

7. [264]

   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.

8. [265]

   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.

9. [266]

   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. (1)

      Witness statements reporting pain, swelling, redness and discharge of pus in the days prior to death;

   2. (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. (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.

10. [267]

    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:

11. [268]

    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:

12. [269]

    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:

13. [270]

    Dr Goeman’s evidence was that sepsis is a well-recognised cause of sudden and unexpected death. In oral evidence she explained that:

14. [271]

    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.

15. [272]

    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:

16. [273]

    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.

17. [274]

    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.

18. [275]

    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:

19. [276]

    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.

20. [277]

    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.

21. [278]

    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:

22. [279]

    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.

23. [280]

    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.

24. [281]

    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:

25. [282]

    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.

26. [283]

    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:

27. [284]

    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:

28. [285]

    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.

29. [286]

    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.

30. [287]

    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.”

31. [288]

    Dr Collins’ evidence was that:

32. [289]

    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.

33. [290]

    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].”

34. [291]

    Professor Paterson agreed that septic shock had a mortality rate of greater than 30% for hospitalised patients as a general proposition.

35. [292]

    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.

36. [293]

    As to cause of death, Professor Paterson said:

37. [294]

    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.

38. [295]

    The forensic pathologists addressed the issue of whether sepsis was a cause of CC’s death:

    1. (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. (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. (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. (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. (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.

39. [296]

    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.

40. [297]

    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:

41. [298]

    The results of screening tests were as follows:

42. [299]

    Results of quantitative tests in the Supplementary Certificate were as follows:

43. [300]

    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.

44. [301]

    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.

45. [302]

    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.

46. [303]

    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.

47. [304]

    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.

48. [305]

    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.

49. [306]

    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.”

50. [307]

    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.”

51. [308]

    Dr Fu’s opinion was that:

52. [309]

    As to the mechanism by which that contribution could happen, Dr Fu’s evidence was that:

53. [310]

    Dr Fu’s evidence was that it was also possible that there was “combination toxicity” but she did not know.

54. [311]

    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.

55. [312]

    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.

56. [313]

    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:

57. [314]

    Professor Ellis agreed that multi-drug toxicity was not the sole cause of death.

58. [315]

    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:

59. [316]

    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.

60. [317]

    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.”

61. [318]

    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.”

62. [319]

    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.

63. [320]

    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.

64. [321]

    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.

65. [322]

    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:

66. [323]

    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:

67. [324]

    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:

68. [325]

    He agreed with the characterisation of this as “entirely possible”. As to the extent of the contribution, his evidence was:

69. [326]

    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:

70. [327]

    Dr Brouwer’s evidence, with which Professor Duflou agreed, was that:

71. [328]

    Dr Brouwer explained that:

72. [329]

    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.

73. [330]

    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.

74. [331]

    Dr Fu’s evidence as to the contribution which drugs may have made to CC’s death is set out above at [309].

75. [332]

    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:

76. [333]

    Dr Collins’ opinion was that the most appropriate cause of death was “undetermined”. He explained this in the following exchange in cross-examination:

77. [334]

    When asked whether there was any other possible cause of CC’s death, he said:

78. [335]

    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.

79. [336]

    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.

80. [337]

    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.

81. [338]

    In these circumstances, we do not consider that this first criticism of the trial judge’s approach can be sustained.

82. [339]

    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.

83. [340]

    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.

84. [341]

    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. (1)

       The lack of concrete, unassailable findings of sepsis in the post-mortem context;

    2. (2)

       The apparent speed of onset; and

    3. (3)

       The failure of either Dr Van Der Walt or Professor Sturm to identify anything suggesting sepsis, such as fever, exhaustion or pain.

85. [342]

    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.

86. [343]

    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.

87. [344]

    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:

88. [345]

    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.

89. [346]

    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.

90. [347]

    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.

91. [348]

    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.

92. [349]

    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.

93. [350]

    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.

94. [351]

    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.

95. [352]

    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.

96. [353]

    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.

97. [354]

    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.

98. [355]

    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)

1. [356]

   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.

2. [357]

   The first act found by the trial judge as constituting criminal negligence was the insertion of the implant in the first place.

3. [358]

   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.

4. [359]

   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.

5. [360]

   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.

6. [361]

   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.

7. [362]

   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.

8. [363]

   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.

9. [364]

   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.

10. [365]

    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:

11. [366]

    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.

12. [367]

    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.

13. [368]

    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.

14. [369]

    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.

15. [370]

    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.

16. [371]

    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.

17. [372]

    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.

18. [373]

    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.

19. [374]

    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]:

20. [375]

    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.

21. [376]

    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.

22. [377]

    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.

23. [378]

    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.

24. [379]

    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.

25. [380]

    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.

26. [381]

    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)

1. [382]

   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.

2. [383]

   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.

3. [384]

   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

1. [385]

   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.

2. [386]

   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]:

3. [387]

   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.

4. [388]

   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).

5. [389]

   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

1. [390]

   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.

2. [391]

   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.

3. [392]

   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.

4. [393]

   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”.

5. [394]

   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.

6. [395]

   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.

7. [396]

   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.

8. [397]

   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.

9. [398]

   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.

10. [399]

    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.

11. [400]

    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].

12. [401]

    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.

13. [402]

    The Crown submitted that the overall objective seriousness for each offence was the upper end of the middle range.

The Sentencing Reasons

1. [403]

   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:

2. [404]

   Her Honour then went on to consider the question of the breach of trust as follows:

3. [405]

   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:

4. [406]

   Her Honour then made general observations as to the issue of consent including the following:

5. [407]

   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.

6. [408]

   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.

7. [409]

   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.

8. [410]

   Her Honour ultimately assessed the objective seriousness of Count 2 to be “below but not substantially below midrange”.

9. [411]

   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:

10. [412]

    Her Honour then said this about the contributing factor of multi-drug toxicity:

11. [413]

    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:

12. [414]

    Her Honour then dealt with the question of consent and made the following finding:

13. [415]

    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”.

14. [416]

    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

1. [417]

   Two factual disputes relevant to objective seriousness were raised under ground 11 in relation to Count 2:

   1. (1)

      The trial judge erred in failing to “mitigate” the sentence on the basis that BB had consented to the procedure; and

   2. (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.

2. [418]

   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.

3. [419]

   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.

4. [420]

   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.

5. [421]

   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.

6. [422]

   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.

7. [423]

   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.

8. [424]

   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.

9. [425]

   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:

10. [426]

    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.)

11. [427]

    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.

12. [428]

    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.

13. [429]

    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.

14. [430]

    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).

15. [431]

    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:

16. [432]

    BB’s evidence was that the Appellant had said that he had:

17. [433]

    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:

18. [434]

    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:

19. [435]

    When asked whether she thought of the possibility of complications, she said:

20. [436]

    BB later said:

21. [437]

    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”.

22. [438]

    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.”

23. [439]

    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.

24. [440]

    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.

25. [441]

    In these circumstances, we are not satisfied that her Honour erred in these factual findings.

26. [442]

    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]:

27. [443]

    We propose to re-sentence the Appellant on the same finding of objective seriousness as her Honour did.

Challenged findings for Count 3

1. [444]

   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. (1)

      The factor of consent should have reduced the objective seriousness (ground 12).

   2. (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. (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. (4)

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

2. [445]

   We shall consider these questions in turn.

3. [446]

   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.

4. [447]

   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.

5. [448]

   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.

6. [449]

   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.

7. [450]

   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].

8. [451]

   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.

9. [452]

   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.”

10. [453]

    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.

11. [454]

    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.

12. [455]

    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.

13. [456]

    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:

14. [457]

    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.

15. [458]

    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.

16. [459]

    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]:

17. [460]

    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

1. [461]

   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.

2. [462]

   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.

3. [463]

   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.

4. [464]

   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.

5. [465]

   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.

6. [466]

   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.

7. [467]

   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.

8. [468]

   We propose to impose an aggregate sentence in this matter. The indicative sentences are as follows:

   1. (1)

      Count 2: 2 years and 3 months, with a non-parole period of 20 months.

   2. (2)

      Count 3: 6 years and 6 months.

9. [469]

   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.

10. [470]

    The orders of the Court are as follows:

    1. (1)

       In relation to Count 1 the appeal against conviction is allowed, the conviction is quashed and a verdict of acquittal is entered.

    2. (2)

       Leave is granted to appeal in relation to grounds 3, 4, 8 and 9.

    3. (3)

       The appeal against conviction in relation to Counts 2 and 3 is dismissed.

    4. (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.