District Court New South Wales Medium Neutral Citation: R v Russell [2021] NSWDC 782 Hearing dates: 13 September 2021 to 28 October 2021 Date of orders: Reasons on verdict and verdict given on 15 and 16 November 2021. Decision date: 15 November 2021 Jurisdiction: Criminal Before: Syme DCJ Decision: The accused is found guilty of counts 1, 2 and 3 on the indictment. Catchwords: Judge alone trial; female genital mutilation application of law to adults; whether an adult can consent to grievous bodily harm; whether removal of scar is relevant to assessment of injury; manslaughter gross criminal negligence; standard of care for non-medial practitioner; duty of care. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Private Health Facilities Act 2007 Public Health Act 2010 Cases Cited: Andrews v DPP (1937) AC 576 Burns v The Queen [2012] HCA 35 Davis v Chief of Army [2011] ADFDAT 1 Fleming v The Queen [1998] HCA 68 JW v SMB [1992] HCA 15 McCarthy v R [2019] EWCA 2202 R v A2 and Ors [2019] HCA 35 R v Andrew [2000] NSWCCA 310 R v Brown [1994] 1 AC 212 R v MB [2018] EWCA 260 R v McIntosh [1999] VSC 358 R v Stein [2007] VSCA 300 R v Toma [1999] NSWCCA 350 R v Wick [2017] NSWCCA 244 Re Robert Burton (a pseudonym) [2021] NSWCCA 87 Reeves v R [2013] HCA 57 Rogers v Whitaker [1992] HCA 58 Royall v The Queen 1991 CLR 172 Swan v R [2016] NSWCCA 79 Swan v The Queen [2020] HCA 11 Category: Principal judgment Parties: Regina (Crown) Brendan Leigh Russell (Accused) Representation: Crown: Mr C. Taylor Instructing: Mr W. Martyer/ Mr C. Mayer Mr M. Mantaj for the accused Instructing: Ms E. Sutton File Number(s): 2018/00136609 2018/00248702 Publication restriction: Non-publication order regarding names of complainants. Judgment 1. On 11 May 2021 the accused was arraigned on an amended indictment charging three counts. 1. That on or about 5 January 2015 at Newcastle in the State of New South Wales did excise part of the labia minora of AA contrary to s 45(1)(a) of the Crimes Act 1900 and 2. That on 13 November 2016 in Erina in the State of New South Wales did cause grievous bodily harm to BB with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 and, 3. That on 12 April 2017 at Toowoon Bay in the State of New South Wales did unlawfully kill CC contrary to s 18(1)(b) of the Crimes Act 1900. 1. He pleaded that he was not guilty. 2. The charges are related to three separate procedures which were undertaken by the accused in his trade as he described as an extreme body modification artist. Further information by way of background was contained in the agreed facts and referred to later. 3. The trial was conducted by a judge alone on the application of the accused. The order was made by his Honour, Hunt DCJ, after he was satisfied that legislative requirements had been complied with. Trial Procedure 1. The trial proceeded during a New South Wales-wide lockdown due to the COVID-19 pandemic. Initially counsel sought to appear personally and notwithstanding the lockdown requirement. I indicated that I was prepared to consider this request favourably with safeguards in place in an attempt to alleviate difficulties associated with the hearing of a lengthy trial in which many witnesses were expected to appear remotely. However, neither counsel eventually sought the exercise of my discretion in this way. The trial proceeded with both counsel and the accused appearing remotely. All witnesses gave evidence via AVL with counsel able to view them remotely and the witnesses having AVL access to counsel and to the Court. Evidence Rulings 1. While the evidence and submissions were adequately presented in this way there were some occasions when the technical connections were less than optimal, resulting in some delays and some repetition of questions and submissions. On occasion media or others listening remotely caused disruption. In addition, when counsel whose connection to the Court was sometimes muted to enable evidence to be better received wished to object to evidence or questions the indication of objection frequently came shortly after the evidence was given. Technical limitations made the disconnection and later reconnection of witnesses problematic. 2. As it was a judge alone trial I eventually adopted an approach of noting objections and on some occasions admitting evidence provisionally with an indication that a ruling could be made at the conclusion of a witness's evidence or the trial. This was a practical and fair solution and was accepted by counsel. At the conclusion of the trial many such objections had resolved and the remaining ones are dealt with herein. 3. If I have not referred to the objected to evidence of the witness in my summary then it has been rejected as not admissible for the reasons contained in the objection table or is otherwise not relevant and has been disregarded. This is also the case where evidence was not the subject of a s 67 notice. 4. If I have allowed evidence which was objected to and referred to it in the witness summary then I will give brief reasons for allowing the evidence in the course of discussion of that witness's evidence and provide transparency to the weight accorded to it. Otherwise evidence objected to has not been admitted and/or considered by me as being not relevant. 5. I have given great consideration to the practical difficulties presented by the trial process. Counsel were afforded as much time as they sought to consider evidence before cross-examination or submissions. An assessment of the evidence is undertaken with all of these difficulties in mind. However, I confirm that the difficulties do not alter the requirement for the Crown to prove its case and each element of the offences charged to the criminal standard. General Directions at Law 1. Pursuant to s 132 of the Criminal Procedure Act 1986 a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury to the guilt of the accused and such finding has for all purposes the same effect as a verdict of the jury. The judgment of the Court in such a case must include the principles of law that I, as the judge, apply and the findings of fact on which I rely. 2. In Fleming v The Queen [1998] HCA 68 the Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the processes and ultimately the verdict it has reached. I am required as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. 3. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. Onus and Standard of Proof 1. Having brought the charges it is the Crown who bears the onus of proving them. The high standard to which such charges must be proved is the standard of beyond reasonable doubt. In order to sustain a conviction for the offences charged the Crown bears the onus of proving beyond reasonable doubt each element of the offence. The elements will be referred to at the commencement of discussion of the evidence for each charge. 2. In addition to the fundamental principle that the Crown must prove the charges beyond reasonable doubt it is necessary to bear in mind a number of other principles. The accused is presumed by law to be innocent of the charges brought against him unless and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proven beyond reasonable doubt. If the evidence fails to satisfy the Court beyond reasonable doubt of any of the elements of a particular offence then the presumption of innocence continues and a verdict of not guilty on that count must be returned. If there is an explanation consistent with the innocence of the accused of any charge or if the Court is unable in the circumstances to determine whether a particular element has been proved then the accused must be found not guilty accordingly. 3. The evidence before the Court must be approached with an open and unbiased mind. The Court must proceed logically and rationally without acting capriciously. It is necessary to bring into account in assessing the evidence the common sense of the Court and to deliver any verdict according to the evidence. It is necessary to recall that the accused does not have the burden of producing any evidence. He does not have to disprove the Crown case. It is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be. 4. The indictment contains three separate charges with allegations spanning approximately two years and three months. While acknowledging that the charges are separate and must be treated separately there are a number of general directions at law which are relevant to all charges. I propose to note those general directions at law where they are relevant to all charges at this stage and to refer to further self-directions as they are relevant to the remaining charges at the commencement of a decision on those charges. I will then discuss the factual issues and the findings relevant to each charge separately. 5. In presenting its case the Crown relied on a number of pieces of evidence that were only relevant as either tendency or coincidence reasoning, for which appropriate notice had been given. Ultimately, there was not a great deal in dispute about this evidence and the use that it may be put to. A judgment was given separately at the commencement of the trial in relation to those issues. 6. The weight to be given to that evidence in ultimately drawing inferences will be referred to in a discussion of that evidence. 7. There are few witnesses who gave evidence during the course of the trial largely relevant to tendency or coincidence only. Most witnesses gave direct evidence to the relevant charge. 8. The Crown also contend that some of the evidence given with respect to individual charges is cross-admissible in other charges. This largely relates to sequences 2 and 3. However, the Crown also rely on some facts that they seek to prove on count 1 and 2 are relevant to prove count 3 and some facts on count 1 and 3 are relied on to prove count 2. 9. I will refer specifically to the tendency and coincidence directions that I will give myself at the conclusion of my findings on count 1. Ultimately however neither tendency nor coincidence reasoning was important in the reasoning process for the remaining counts. It was not at all relevant for the count 1 considerations. 10. Other directions I will give myself specifically in relation to counts 2 and 3 will relate to the drawing of inferences, circumstantial evidence and expert evidence. Expert evidence is relevant to all three counts on the indictment and even though the self-direction will appear at the conclusion of my reasons on Count 1, I have taken it into account for that count as well. The expert evidence in count 1 was not the subject of dispute, and it is only as a matter of convenience it is set out in full at the conclusion of reasons for that count. . 11. A direction relating to the accused not giving evidence is relevant to all three charges on the indictment and I specifically acknowledge that the accused has no obligation to give or call evidence, and the fact that he did not give evidence personally does not alter the burden of proof. Some evidence was called on his behalf, however I specifically acknowledge that the fact that the accused did not give evidence himself does not alter any obligation that the Crown has to prove its case. 12. The accused in no way bears any onus of proof in respect of any fact that is in dispute. He is presumed to be innocent until and unless I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and to make the Crown prove he is guilty to the high standard required. 13. I understand that as a matter of law his decision not to give evidence cannot be used against him in any way. That decision cannot be used as amounting to any admission to any part of the case before me. I draw no inference or conclusion based on the fact that he decided not to give evidence, it cannot be used against him in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I will not speculate about what might have been said in evidence if the accused had chosen to give evidence. The Nature of the Hearing 1. An observation I wish to place on the record at this stage is that this case is not a judgment on the complainants or victim the subject of an indictment. It is not a judgment on an individual's decision to seek the deliberate alteration of a part of the body in the same way that cosmetic procedures are designed to, nor is it investigation, except as referred to in the reasons, why a person might seek such body modification. Body modifications when performed by a properly qualified surgeon in surgical conditions, as I understand from the expert evidence received, is apparently not an uncommon procedure. 2. The decision in this case is a consideration on whether in the circumstances of this case the procedures which were either admitted or are found to have been undertaken by the accused were undertaken in such a manner and with such consequences as require the intervention of the criminal law, either because they were inherently dangerous and/or undertaken in such a way as to render them unlawful. Undisputed Facts 1. At the commencement of the trial, a document was tendered containing agreed facts. Further agreed facts will be relevant to a discussion of each individual charge, however a number of agreed facts are relevant to all charges by way of background. The agreed facts tendered pursuant to s 191 of the Evidence Act required no further evidence for those facts to be proven. Those facts are as follows. Background of the Accused 1. The accused was a self-proclaimed extreme body modification artist. The accused went by the nickname of BSLICE and Hemostat. Through advertising and social media the accused offered to perform a wide variety of body modification procedures. 2. The term "body modification" refers to the deliberate alteration of a part of the body in the same way that cosmetic procedures are designed. Body modification is a broad term and can range from the cutting or removal of body parts to the insertion of implants and scarification. 3. The term scarification refers to the process by which one's skin is cut, etched, burned or branded into a design to create an inkless tattoo like scar. 4. From some time in 2013 until March 2016 the accused worked at "Tribal Urge", a tattoo studio at 764 Hunter Street, Newcastle. He was employed as a body piercer at Tribal Urge. 5. In or about June 2016 the accused opened Transition Tattoo and Body Modification at Erina Fair, Erina, referred after in these reasons as Transition. 6. The accused maintained profiles on social networking sites where he would correspond with clientele and posted photographs and videos of body modification procedures. His social media profiles were as follows: 1. Intagram: @BSLICEDOTCOM, 2. Facebook: BSCICE and Bslice Dot Com; 3. Fetlife profile name Hemostat. 1. Fetlife is an adult social networking website that serves people interested in BDSM, fetishism and kink. The accused's Fetlife profile page was visible only to registered members of the Fetlife website. 2. The About Me section of the accused's Fetlife profile states: "I am a body modifier/piercer. I offer a wide range of my works, from piercing, tongue splitting, genital splitting and implants, scarification, branding, suspension needle play, blood play and much more and heavier, with full extensive surgical background of training. I travel worldwide offering my works. PLEASE DO NOT WASTE MY TIME. And I have much more extensive pics and vids of my things I offer. I ALSO OFFER MY WORKS TO PARTIES AND ALSO OFFER WORKSHOPS. COME BE PART OF MY MAGIC, TAKE THIS EXISTENCE WITH ME". 1. At times the accused was assisted in managing his Facebook and Instagram social media profiles by Alexandra Malloy. Russell's email address was bslice.com@gmail.com. 2. At times the accused performed penetrating body modification procedures on others using surgical and other implements and injectable local anaesthetics resulting in incisions. The procedures included eyeball tattooing, nipple removal and reshaping, insertion of subdermal implants, caesarean scar reduction, scarification, body piercing. The accused conducted those procedures described above at venues such as tattoo parlours, storefront locations and public expos. Many of those procedures involved the accused using injectable local anaesthetic. 3. The Australian Health Practitioners Regulation Agency, APRA, maintains a public register of all registered health practitioners in Australia. In order to practise as medical practitioner in Australia, you must hold a current registration with APRA. If a person's name does not appear on the National Register of Practitioners as currently registered, they are not entitled to practise as a medical or health practitioner in Australia. 1. The accused is not registered as a health or medical practitioner on the National Register of Health Practitioners maintained by APRA and has not been registered on the register since his establishment of 1 July 2010. 2. In addition to the above formally agreed facts, some other factual matters were not disputed during the course of the trial. COUNT 1 - Female Genital Mutilation 1. Again I remind everybody there is a non-publication order for the complainant's name. 2. Section 45 of the Crimes Act provides, relevantly: "Prohibition of female genital mutilation: (1): A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person; or (b) aids, abets (et cetera) a person in doing so commits an offence. (2) N/R. (3) It is not an offence against this section to perform a surgical operation if that operation: (a) is necessary for the health of the person on whom it is performed and it is performed by a medical practitioner, or (b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth by a medical practitioner or authorised professional, or (c) is a sexual reassignment procedure and is performed by a medical practitioner. (4) In determining whether an operation is necessary for the health of a person, only matters relevant to the medical welfare of the person are to be taken not account. (5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts. (6) N/R. Definitions follow in s 45. To refer only to those relevant it is noted. 1. It is not suggested that the subject of these proceedings was in labour or had just given birth, or that the procedure was a sexual reassignment procedure. 2. "authorised professional" means, to summarise, a registered midwife or a midwifery student qualitied in Australia or in a recognised jurisdiction or a medical student. 3. It is an agreed fact, agreed fact 24, that Brendan Russell was not at any time a medical practitioner, authorised professional, medical student or midwifery student as those terms are defined in s 45 of the Crimes Act. Evidence 1. The elements of s 45(1) that the Crown must prove to the required standard are: 1. that the accused on 5 January 2015 2. excised 3. part of the labia minora 4. of the person AA. 1. In relation to count 1 further agreed facts before the Court were: Agreed fact 19. The complainant in this matter is AA. The complainant's legal name is [redacted]. She was 29 years old at the relevant time. Agreed fact 20. On 5 January 2015 AA attended Tribal Urge where the accused, Brendan Russell, undertook a procedure whereby he partially excised her labia minora. The right labium minora was completely excised, the anterior half of the left labium minora was excised. A sketch annexed to the agreed facts, and will be annexed to my decision, indicates the areas excised. Agreed fact 21. The procedure was with AA's consent. Agreed fact 22. The procedure was for a non-medical cosmetic/body modification purpose. Agreed fact 23. As a result of the procedure AA experienced pain for approximately 12 months following the procedure, is unable to use tampons due to pain and experiences discomfort when wearing underwear due to sensitivity at the site of the excision. 1. The Crown case was that the procedure carried out by the accused is one defined as female genital mutilation under the Act. The procedure and the result was adequately and uncontroversially described by Dr Bezic and summarised further in these reasons. 2. The Crown contends that s 45(5) renders this consent irrelevant to the offence. There is no dispute that the elements to be proven, as noted above, are the elements that must be proven by the Crown to the required standard. 3. The Crown's position is that each of the proof elements is satisfied in effect by the agreed facts. 4. Defence advocate in his submissions, para 18, conceded that if s 45(1) is to be read literally, the Crown case "undoubtedly discloses an offence contrary to this provision". However, he submits that the section should not be read literally and ought to be construed in accordance with its purpose and the mischief Parliament intended to address by its introduction. He further submits that the section must be interpreted to apply only to children and/or only to apply to traditional or ritualistic procedures. The defence argue that the procedure was a purely cosmetic procedure undertaken on an adult with consent, therefore it is not caught by s 45(1). 5. Both the Crown and the defence have relied significantly on the case of R v A2 and Ors [2019] HCA 35 (referred to as A2). 6. It is the defence position that legislation ought be construed in accordance with the purpose sought to be achieved by the introduction of the legislation. 7. Defence submit s 33 of the Interpretation Act supports this proposition. Section 33 relevantly provides: In the interpretation of a provision of an Act or statutory rule et cetera a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or in the case of a statutory rule in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 1. Section 34 relevantly provides: (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material— (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision— (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes— (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer, (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made, (c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made, (d) any treaty or other international agreement that is referred to in the Act, (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made. The rest of that particular section is not relevant. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to— (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act … Defence Position 1. I refer to the defence position first, not to suggest there is any onus, but merely for convenience. 2. Defence advocate submits that the approach they urge on this court was most recently confirmed by the High Court in A2 where Kieful CJ and Keane J confirmed as follows, (and I shall summarise) : "A literal approach to construction which requires the Courts to obey the ordinary meaning or usage of the words … even if the result is improbable … has long been eschewed by this Court. It is now accepted that even words having an apparently clear, ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context of the provision may point to factors that tend against the ordinary usage of the words of that provision and when a literal meaning of the words of the statute does not conform to the evidence, purpose or policy of the particular provision it is entirely appropriate for Courts to depart from the literal meaning". 1. Defence advocate suggests that the appropriate interpretation for s 45 would be to read down the general words in the Act and give them a more limited application than their ordinary meaning would suggest. It does not appear to be the defence submission that a literal meaning of the words would make s 45 either manifestly absurd or unreasonable although they suggest perhaps impractical . I will address this issue below. 2. Defence contend that the context of the provision, by which I take it they mean the circumstances surrounding the passing of the legislation, points to factors that tend against the ordinary usage of the words of that provision. Therefore in the words of the High Court: "That the meaning ought be interpreted to comply with the evident purpose or policy of the provision". 1. Defence further submit that the interpretation that should be applied to s 45, to ensure that its operation is limited in scope to a manner which is consistent with its purpose, would be to interpret the provision to apply only to children and/or to ritualistic practices or procedures. 2. They submit that the repetition of the words "female children" in the Court's reasons is a clear indication that the High Court approved of the limitations of the Act to children. Defence point out that the reference to prohibit the practice of female genital mutilation on female children was repeated in paras 53 and 56 s elsewhere of the decision. 3. The Court observed: "a construction which gives a broader approach to s 45 is consistent with its wider purpose to prohibit completely female genital mutilation practices injuries to female children. That purpose is consistent with Australia's obligations under the Convention of the Rights of the Child". 1. The defence case is that the above passage makes it plain that the High Court, as they submit, conclusively decided that the purpose of s 45(1) was the protection of female children rather than adult women. I assume they mean the protection of females under the age of eighteen years are the sole target of the Act rather than all females . That is how I understand that submission. 2. Defence advocate concedes that the High Court in A2 was not dealing directly with the question of whether the scope of s 45(1) was limited to child victims. However they submit that the: "Repeated use of the phrase female children instead of the much simpler expression such as females cannot be dismissed as unintentional". 1. Defence advocate suggests that to do so would be, tantamount to impugning to the High Court an incredible naivety about its role within the curial hierarchy and the effects of its pronouncements. 2. I would hope to avoid impugning the High Court with any degree of naivety but suggest that they probably expect their pronouncements to be quoted in full context, as I will refer later. . 3. Defence further submit that Kiefel CJ and Keane J found influential in their reasoning the statement of the Minister who gave the second reading speech in the introduction to the Act in 1994 to the effect that female genital mutilation is a form of child abuse and that the bill was rooted in the protection of children. There is a concession that when the section was revisited in 2014 to increase the maximum penalty the Minister who delivered that speech took the view that s 45 applied not only to children but also to adult women however . submit that a speech some ten years after the bill was proposed does nothing to illuminate its purpose at the time it was enacted. Crown Position 1. The Crown position is that the literal and purpose of interpretation of the words in the Act are the only appropriate way of interpreting the words. The Crown submit that if an age limit was intended the insertion of a few simple words would have sufficed. The Crown's further submissions are discussed below. Consideration 1. In considering whether the Act applies only to subjects under the age of 18 years I note that the legislation does not make this distinction in its plain language. The section refers to an act being performed by a person on another person, (the first person being the one who commits the offence). I do not understand that the defence submission suggests that both persons must be children for the section to be relevant. 2. An understanding of the observations of the High Court in A2 requires a short summary of the background to that decision. The matter under consideration in A2 concerned procedures performed on children. The focus of the Court was the direction given by the trial judge in a jury trial as to the word 'mutilate' and the meaning of the word 'clitoris' in s 45. The High Court considerations in A2 arose following a Criminal Court of Appeal decision in New South Wales. The respondents who are referred to collectively as A2 were charged upon indictment with having mutilated the clitoris of two children. The Crown case was that the respondents who were members of a community group were parties to a joint criminal enterprise to perform a ceremony which involved causing injury to a young girl's clitoris by cutting or nicking it. The respondents did not dispute that there had been a procedure performed but claimed that it was merely ritualistic and did not involve any nick or cut to the clitoris. Whether it did or not was a factual issue in the trial. 3. In addition to the factual issue the respondents also argued that if there was a cut or nick it would not amount to mutilation within the meaning of s45(1). The trial judge made a pre-trial ruling concerning the meaning of the words 'otherwise mutilate' and subsequently directed the jury in accordance with that ruling. 4. The respondents were convicted as I understand on the factual issue, apparently finding there was a cut or nick, which may have been minor, performed on the childrens' clitoral area. 5. That conviction was appealed to the CCA largely on the issue of the meaning of the words 'otherwise mutilates' and ultimately the respondents' convictions were quashed and verdicts of acquittal on all counts were entered. The CCA concluded that the trial judge had mis-directed the jury as to the meaning of the words 'otherwise mutilates'. There was another issue in relation to fresh evidence. 6. Special leave to appeal to the High Court was granted on two grounds. The first, a matter of general importance regarding the operation of s 45 was he question was whether the CCA erred in construing the words 'otherwise mutilates' as it did. The second ground of appeal related to the meaning the CCA gave to the term 'clitoris'. The question of whether the Act applies in a general way or only to children and/or ritual circumstances was not argued either before the CCA or the High Court. In determining the scope of the words 'otherwise mutilates' the High Court analysed and considered the purpose of s 45 as it had been expressed in various forms of intrinsic material including the formal statements of the World Health Organisation, the report of the Family Law Council to the Attorney General in relation to the adequacy of Australian laws relating to this issue and the explanatory note and second reading speech with respect to enacting the offence in New South Wales. 7. Defence submissions refer to a number of places in the A2 decision where the majority of justices referred to the mischief to which s 45 is directed. The discussion in A2 commences at para 38 of that decision where it is noted that the term 'female genital mutilation' is noted to be a collective term to refer to ritual practices carried out on female children. That reference in that context was a reference to how the Family Law Council report referred to that particular issue. The High Court observed that the term 'female genital mutilation' was adopted in the legislation as it was meant by the Family Law Council. It observed in para 44 of the Court's decision: "The mischief to which s 45 is directed is a gap in the law concerning the practice of female genital mutilation in all its forms which are productive of injury. Its immediate purpose is to criminalise the carrying out of the practice on female children. Its wider purpose may be taken to be its cessation." 1. However, this passage clearly was in the context of their consideration as to the meaning of the word 'mutilates' in the context of female genital mutilation. The High Court did not express a limit to the wider purpose to the cessation of the practice only in children. 2. The High Court in A2 did not specifically, or even obliquely, consider the question of whether the provision was limited to offences committed against children. Rather the Court focussed on whether particular conduct the subject of the factual scenario before them fell within the intended definition of the words 'otherwise mutilates'. It is observed that the Court ultimately concluded the infliction of any damage to the genitalia of a female child fell within the scope of the term 'otherwise mutilates', thus interpreting that term widely. Apart from obliquely and largely in quoting from relevant reports they did not comment in any way that the section, or the words in it ,should be interpreted to relate only children. That was not the purpose of their consideration. 3. In considering the legislative purpose of s 45 it is noted that the Family Law Council report not only examined the issue of offences against children but also violence against women. The Council asserted it had obligations under a number of international instruments which are referred to in their report. These include the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of Discrimination against Women, the Declaration on Violence against Women and the Protocols relating to the status of refugees. It is obvious that these institutions and their bodies relate to all people, not just children. 4. The final report of the Family Law Council must be seen in that context. In the second reading speech for the legislation enacting s 45 the relevant Minister said: "The Convention on the Elimination of all forms of Discrimination against Women provides that all appropriate measures be taken to eliminate discrimination in the field of health care. The declaration on violence against women specifically includes female genital mutilation as a part of its definition of 'violence against women'". 1. It is observed that while the Attorney General noted that the procedure is usually performed on girls "on a tender age", (as was the case in A2) there was no attempt to limit the width of the offence when presented to parliament, to children. The broad ambit of the legislation was confirmed when the Attorney General stated, "A legislative proposal to make clear that female genital mutilation is a criminal offence is obviously a sensitive matter. There are a number of serious issues to be considered. These range from matters of child protection to issues concerning women's health and human rights." 1. Parliament also considered and legislated in terms of s 45(3) regarding surgical operations performed for health reasons, providing that s 45 should not apply to procedures that were performed as part of the labour or birthing process, or as part of the sexual reassignment procedure. While it might be the case that some such events may apply to children, it is a more usual that those procedures would involve adult females. An interpretation that s 45(1) applies only to children but that the exclusion section (s 45(3)) may apply to both children and adults does not make sense. 2. In the course of their judgment, the court, Kiefel CJ and Keane J did refer to the history of the legislation and the background in the 1970s and 80s of the practice of what was referred to as ritual female circumcision. Later, they observed that the Family Law Council prepared a report to the then Attorney General on that issue; that is, the issue of ritual female circumcision. 3. I have been provided with a summary of this document which notes that when the practice was inflicted on children, it amounted to child abuse. It is implicit that consideration was therefore given to legislating in such a way as to prohibit the action where perhaps only children were involved, but ultimately, s 45 was passed, prohibiting genital mutilation on females where no age limit was mandated. I am of the view that the words "any person" in the Act could not be clearer. 4. In addition, the issue of the consent of the subject was specifically referred to as a matter that could not be raised as a defence. This again presumes that the consent provision applies to a person of an appropriate age to give that consent. Marion's case, referred to by defence advocate in a different context, suggests that parental consent in these circumstances would not be sufficient. 5. This observation of the historical background to s 45 makes it abundantly clear that while consideration may have been given to the Act applying only to children, the legislation refers to any person; clearly an indication of the intention of Parliament. 6. The legislation was actively under review in 2014 as a result of the 2013 Family Law Council report, which is referred to again below. The then Attorney General of New South Wales introduced a Bill to increase to increase the maximum penalty for performing female genital mutilation from seven to 21 years' imprisonment and to create a new offence of: Remove a person from New South Wales with the intention of having that practice performed. 7. The Attorney specifically commented that the offence is not restricted to taking a child or arranging for a child to be taken from New South Wales for the purpose of female genital mutilation. He said it was drafted to apply to adults as well. He observed that the existing offence in New South Wales prohibits the female genital mutilation of women, as well as girls. It is obvious then that active consideration was given in 2014 to whether the Act did apply only to children, or should. The law was not changed, and indeed, the Minister confirmed that it applied to adults. 8. Defence submissions comment that the decision in A2 occurred some five years after this 2014 speech to Parliament and suggests that the High Court specifically and impliedly read down these comments when referring to children in the context of its decision. Taking the decision as a whole, not just using selected parts, I do not agree. Had they intended to limit the meaning of the section to apply only to children and to be read down as such, they would have, at the very least, invited submissions on same, and undoubtedly, said so directly. This particular issue was not an issue upon which leave to appeal was granted. 9. Defence do not concede that the High Court was referring to the issue only of the understanding of the term "mutilate" in the context of the wider purpose of the appeal and prefer the interpretation of the High Court, who specifically in their judgment ,read down the plain meaning of the words. As I have observed, the High Court did not say this. 10. Defence further submit that if s 45 is not read down as they suggest, according a literal meaning of the word "excise" would render any labiaplasty performed for purely cosmetic reasons a criminal act because every labiaplasty involves the excision of the part of a women's labia. This is, in effect, a submission that such a conclusion is impractical and perhaps improbable, apparently due to the fact that such operations are conducted by "cosmetic surgeons". I do not think that this is a matter that ought concern the court, but as it was raised, I will attempt to address it. 11. Dr Ron Bezic, past President of the Australian College of Cosmetic Surgery, provided an expert opinion stating that the removal of extra labia minora tissue, known as a labiaplasty, is usually performed in a licenced day surgery under general anaesthetic 12. The procedure would involve the tissue being excised by a blade or scissors and the bleeding stopped with cauterising, the surgeon mostly using the monopolar diathermy to ligate the arteries. This is a form of electrocautery where there is a pad placed on the patient. Once the surgeon is satisfied that the bleeding is controlled and the correct amount of tissue was removed, then they close the wound with sutures. 13. Dr John Flynn, a similarly qualified expert called by defence, did not dispute that this was the process involved in labiaplasty. There is no challenge that this does amount to an excision of the labia minora. 14. In relation to the reasons a medical practitioner might perform a labiaplasty in New South Wales, the report tendered as exhibit K in the defence case is instructive. In it, Dr Bezic opines, "Labiaplasty can be performed in New South Wales if a patient is concerned about the appearance of the labia minor, or for medical reasons." 1. It is noted in this regard that Dr Bezic does not purport to be giving a legal opinion in relation to the performance of labiaplasty in New South Wales. 2. He said in his report as reviewed on 2 September 2021, "Medical reasons are the most common reason, and this can also be in conjunction with cosmetic concerns. However, there is a subset of patients that requested this procedure for cosmetic reasons alone. In this case, the surgeon would need to provide proper informed consent and conduct the procedure in a safe and licenced environment." 1. He said that the use of the term "cosmetic" as it applied to this paragraph implies that a service is non‑rebatable and does not attract a Medicare benefit. 2. Such a service would not be listed on the Medicare Benefits Schedule, and therefore would attract GST. Cosmetic medical practitioners were generally classified procedures as either cosmetic or non‑cosmetic using that criteria. 3. Labiaplasty can be performed and has a Medicare number attached in circumstances where a descriptor for this service as vulvoplasty or labiaplasty. These descriptors relate to procedures for repair of female genital mutilation or an anomaly associated with a major congenital anomaly of the urogynecological tract. 4. Further, Dr Bezic said that there are other medical procedures that are performed that don't attract a Medicare benefit. The purpose of these procedures is to improve the medical or psychological well‑being of the patient. He said it is a widely accepted practise for medical practitioners operating in New South Wales to perform this type of procedure exclusively for health reasons. He included the psychological health of a patient as being a subset of general health. 5. The defence expert, Dr John Flynn, is currently engaged in fulltime cosmetic surgery practise in Queensland has been for about 30 years, and is currently managing editor and publisher of the Journal of Cosmetic Surgery and Medicine. His qualifications and experience were not challenged by the Crown. A small part of his report was tendered as evidence, in which he answered the question: Are labiaplasties which are performed for cosmetic reasons alone non‑therapeutic?" He responded, " "in a physical or in a functional sense, … would consider that labiaplasty performed for cosmetic reasons alone as being non‑therapeutic. However, there is often also a significant emotional and psychological overlay regarding how patients might assess their anatomy and hence their appearance. These elements are critical to pre‑operation discussion and a doctor would have a duty of care to explore these issues and if necessary refer appropriately…… Nevertheless, he said there will still be a subset of patients, (as Dr Bezic suggests,) who seek labiaplasty for purely cosmetic reasons, and so would be non‑therapeutic and not considered necessary for a patient's health" . 1. In commenting on Dr Bezic's report, Dr Flynn agreed that even if there was a cosmetic reason for such a procedure, then the surgeon would need require proper informed consent and conduct the procedure in a safe and antiseptic environment. He said labiaplasty complications can include infection, for which antibiotics are routinely prescribed by this doctor. 2. Other risks can include pain, which usually subsides after a few days. He said if pain was experienced for up to 12 months, that pain may result from scarring hematoma or surgical technique. He commented that one should not have pain for that amount of time unless something had gone wrong. Sensitivity at the site of the incision would very likely suggest that something had gone wrong. Such a result, he opined, would be unexpected. 3. This conclusion is relevant to expand on what the Crown says was the adverse medical outcome of the procedure performed by the accused. It seems that Dr Flynn confirms that it was. This is relevant to cross‑admissibility issues, and the suggested tendency of the accused c to conduct procedures with such an outcome. 4. Otherwise, the usefulness of the opinions of Dr Bezic and Dr Flynn as to whether labiaplasties which are performed for purely cosmetic reasons is academic. Both referred to wider possibilities of health concerns for such a request if it were ever made. 5. Both Dr Bezic and Dr Flynn indicated that some patients sought a labiaplasty procedure for cosmetic reasons as distinct from medical or health reasons. In explain this, Dr Bezic drew the distinction that medical procedures were simply a reference to whether the procedure was rebatable under Medicare or not. Both indicated there was a subset of patients who sought labiaplasty for non‑therapeutic reasons, and both Dr Flynn and Dr Bezic indicated that they would explore those reasons to decide whether they fit into the medical or therapeutic category. It is clear that some therapeutic or medical reasons for labiaplasty are covered by Medicare and some are not. 6. I cannot conclude from their evidence that non‑therapeutic labiaplasties are performed as a matter of course by licensed medical practitioners in New South Wales, as was submitted by the accused's counsel. In any event, it is an irrelevant consideration. I observe that both Dr Flynn and Dr Bezic, in their evidence, denied that they had ever performed such operations for non‑therapeutic purposes, or that anyone they knew, any surgeons they knew in either New South Wales or Victoria similarly undertook such procedures. This is a different consideration however as to whether if any did occur, they fall within s 45(3) or not. 7. Further, in relation to this issue of whether such procedures are performed widely, I return again to the 2013 Family Law Council report. It canvassed the option of "reviewing the law to clarify the legal and policy position of female genital cosmetic procedures, with a view to presenting a report to the standing council on law and justice, or other appropriate ministerial council if necessary." It was recognised in that 2013 report that queries were raised about how existing female genital mutilation laws would apply to female to female genital cosmetic procedures. It was observed in para 1.2 of the report that "such procedures are alleged to be occurring more frequently since the last time model laws were discussed by the jurisdiction." The report recommended that further work be progressed. This is a reference no doubt to the sorts of procedures that it is alleged by defence that cosmetic surgeons "frequently" undertake in New South Wales and possibly Queensland. However, notwithstanding the observations being raised, the legislation was not changed, notwithstanding there were amendments to the Act in 2014. 8. A consideration as to whether some other procedures performed by cosmetic surgeons for non‑therapeutic reasons are in breach of s 45 was not before me. Dr Flynn and Dr Bezic denied any knowledge of same. Notwithstanding this, Mr Mantaj submitted that such procedures were undertaken, and that if a decision was made that labiaplasty of the type performed by the accused, as he stated, would be criminalised, it would in effect create a system in which, he said, "cosmetic surgeons must either search for a non‑existent therapeutic reason behind a women's decision to have cosmetic procedure or to deny her access to same." Mr Mantaj submitted that either option, and he said: "Denies the women of New South Wales a basic right to the autonomy over their own bodies and further that it was a most dangerous precedent for the Court to consider." 9. This argument can be dealt wealth immediately. If defence advocate is suggesting that the procedure performed by his client is in anyway comparable to a procedure performed for therapeutic purposes by a cosmetic surgeon, then this is just factually incorrect. If he is suggesting that there are qualified cosmetic surgeons who are performing procedures which are not permitted by a plain reading of s 45, then that somehow permits his client to do so, is also with respect a nonsense suggestion. Section 45 makes it very clear that there are limited circumstances only in which a procedure as defined by the Act can be performed. This suggestion, even if evidence existed, that because some cosmetic surgeons might be doing it for cosmetic purposes only, then it is not illegal is completely unsustainable as a submission. In the context of this case, as observed above, as conceded by his advocate that if s 45 is to be read in accordance with the direct meaning of the words of the Act, the Crown case undoubtedly discloses an offence contrary to that provision. It is not submitted, even suggested, that the procedure carried out by the accused does not amount to female genital mutilation as discussed in the High Court case of The Queen v A2. The agreed fact of excision and the annexed diagram of the portion of the labia minora excised puts that element beyond reasonable doubt. 10. There is no evidence nor suggestion that the procedure was carried out for the health of the subject person nor is there any suggestion, in fact, it is admitted that the accused is not a medical practitioner or otherwise professional. 11. Finally, defence submit or suggest that by disagreeing with their submissions as to the extent of s 45 this Court is somehow criminalising a woman's access to labiaplasty as a cosmetic procedure. This Court is doing no such thing. It is up to the legislature to decide what is and what is not a crime within this State and it is up to the courts to interpret those laws. Defence further submit: "If the court was to reach the view that it is not concerned about criminalising a woman's access to labiaplasty there remains a question that was averted to by the High Court regarding criminalising of genital piercings." 1. This is clearly in reference to para 49 of the High Court's decision in A2 where the Court was referring to the respondent's submission in relation to the interpretation of the term 'otherwise mutilates' within the context of female genital mutilation. The submission has little, if anything, to do with the current case. Section 45 is quite specific in relation to the prohibited procedures. The excision that is referred to in the agreed facts is not a "piercing" . The submission that if interpretation suggested by the Crown of s 45 is accepted then genital piercing would constitute a criminal offence is not a matter for me to consider. Presumably, it would be a factual consideration in a particular case. That is how the High Court dealt with this thought.In addition I note, the agreed facts in this case agreed fact 2 defines body modification in such a way as not to include piercing. 2. I find that s 45 does not apply only to ritualistic or religious activity . The High Court in para 30 (A2) specifically observed that the minister stressed that in passing the law against female genital mutilation the government was not seeking to attack the values of any particular group within the community. In the context of A2, this was a clear reference to what it was submitted in that case, that is, the procedure under consideration was ritualistic in nature, therefore, submitted in that case, not caught by s 45. This is dealt with above. 3. It is my view that taking into account all of the information that was given parliament clearly intended to legislate broadly to criminalise not only the activity with the ambit of the Family Law Council definition of female genital infibulation, that is, the ritual practice carried out on female children but also activity beyond that definition so as to criminalise non-ritualised procedures on any person including otherwise mutilating and excising the named body parts. The use of the word "any person" clearly denotes that consideration was given to limiting the Act to children only or to limiting the purpose of the Act only to ritualised activity. No such limitation appeared in the law as passed by parliament. 4. Finally, if the legislature had intended to make legislation concerning children there are ample places in the Crimes Act where they could have so limited provision of the law. However, s 45 is placed in the division concerning injury to persons not in any of the many divisions concerning offences against children. This is a further indication if any is required, that there was no intention of the legislature to require the section to apply only against children. 5. I find that s 45(1) does not apply only to children nor only to ritualistic or religious flavoured principles. 6. I find, therefore, beyond reasonable doubt that the accused is guilty of the charge that on 15 January 2015 he excised a portion of the labia minora of AA contrary to s 45 of the Crimes Act. 7. In considering counts 2 and 3 on the indictment, it is useful to refer to some evidence which by tendency or coincidence reasoning may be relevant to either of these charges. The general directions of law I spoke of earlier apply to all three charges. In addition, further directions apply to the remaining counts to which I will refer as relevant. Tendency Evidence 1. The Crown presented evidence to support what they say is a tendency or tendencies as set out in their notice and the subject of my previous decision. I acknowledge that this evidence is only relevant as the Crown suggests if I decide that the accused did, in fact, conduct himself in the way the Crown alleges on those other occasions. In doing so, I will not consider each of the acts in isolation. If I decide that all or at least some of the conduct occurred then I shall consider whether it enables the inference to be drawn that the accused had a particular tendency as alleged by the Crown. 2. The Crown submits that the accused had a tendency to (a) undertake procedures that resulted in adverse health complications; (b) to deter his subjects from receiving the treatment from a medical practitioner; (c) to fail to undertake discernible consent procedure or any such procedure involving the informed consent of the subject; (d) to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection; and (e) to fail to provide adequate aftercare. 3. I acknowledge specifically that the care that needs to be taken and applied to the drawing of inferences. I direct myself that I must consider whether there might be an alternative explanation for the evidence. I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances. This is a real consideration when considering the tendency, and later, coincidence self-direction herein. 4. If I am not satisfied that any of the conduct that the Crown relies on occurred then there is no basis upon which the tendency or coincidence under consideration could be inferred. If so, I will put the whole issue of tendency or coincidence to one side and confine consideration to the other parts of the Crown case, by which I mean the direct evidence on each charge. 5. If I do find that the accused had such a tendency as submitted, I may use that finding in considering whether it is more likely that he committed the specific offence which I am considering. However, this tendency or result if it existed on a particular other occasion while useful does not diminish the need for the Court to consider in relation to each charge whether the accused acted in that particular way or had that particular state of mind or a particular result occurred on that specific occasion. 6. Finding that the accused did have some or all of the tendencies the Crown alleges may assist the Crown to prove the accused committed the offences but it is not enough by itself. I must consider whether it makes it more likely that the accused conducted himself in the way the Crown alleges on the occasion specific to the charge under consideration. If a tendency is found to exist and is relevant to a finding on a particular charge I will refer to the finding and the use it has been put to in a discussion of the evidence. Coincidence 1. Relevantly to considerations in count 2 and 3, the Crown allege that the accused had a tendency to undertake procedures that resulted in adverse health complications and/or the procedures he undertook resulted in adverse health complications. 2. It is an agreed fact in count 1, (the count on which reasons have now been delivered) [agreed fact 23], that as a result of the procedure AA experienced pain for approximately 12 months following the procedure, is unable to use tampons due to pain and experiences discomfort when wearing underwear due to sensitivity at the site of the excision. It is the evidence of Dr Flynn referred to above, an expert called by the accused, that such a result would be unexpected and would indicate something had gone wrong. 3. This evidence supports the Crown's assertion that the accused had a tendency to undertake procedures which resulted in adverse health complications. Coincidence reasoning can be applied to consider whether the adverse health complications were as a result of what the accused did, thus assess its relevance on other charges. 4. In this context, the evidence of Dr Flynn leave no room for doubt on the cause/effect issue. If the adverse outcome as occurred in count 1, bears such a strong similarity to the circumstances in either count 2 or 3 ,or both, the Court may be persuaded that such an adverse outcome occurring by chance but in different procedures is so minimal that the accused by the actions he took was responsible for the similar, that is, adverse health outcome. This reasoning is available as tendency but more relevant, in my view, to coincidence reasoning . I will refer to it later if I propose to use it in that way. 5. In general terms, the coincidence notice relies on the nature of the accused's body modification practice and the consequences, the Crown say, of that practice during different procedures. In this case, the Crown says that coincidence relied on are in similar terms to the tendency notice, that is, that the accused: 1. undertook procedures that resulted in adverse health complications; 2. to deter his subjects from receiving the treatment from a medical practitioner; 3. to fail to undertake a discernible consent procedure or any such procedure involving the informed consent of the subject; 4. to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection; and (e) to fail to provide adequate aftercare. 1. In the context of this case, the Crown position effectively is that even though tendency and coincidence notices are similar the reasoning must be that if the Court finds that the accused had a tendency which existed as set out in (c) and (d) above which is discernible consent procedure and to undertake procedures without appropriate antiseptic techniques then by coincidence reasoning the outcome in (a), for example, that is the result being an adverse health complication in more than one case, was no coincidence. If there was an adverse health outcome then the tendencies in (b) and (e) relating to referral to doctors and provision of aftercare may then become relevant. 2. The evidence of the pattern of behaviour can only be used in this way, if I find that the accused did the other acts and the acts are so similar to the acts giving rise to the charge, that it is, highly improbable both acts were committed by a different person or in different circumstances. In the context of this case I there is dispute that the accused performed the procedures that have become the subject of the charges. 3. I acknowledge that I must decide whether the specific offences with which the accused has been charged have been proven. That decision must be based upon the evidence relevant to each charge. This includes the evidence of the complainants and/or medical evidence about the procedures the accused undertook. It will include the tendency alleged by the Crown, if I am satisfied it has been established, and outcomes which the Crown allege are not coincidental with similar outcomes in the circumstances of each event in the way that I have described above. It will also include observations of witnesses about what each complainant or subject of the procedures said and did before during and after the procedures and if possible and relevant a finding as to why. 4. I further acknowledge that where some evidence relates to occurrences on occasions other than referred to in the indictment, I will not substitute the conduct of the accused on some other occasion, for conduct that is relied on by the Crown to prove a particular charge. 5. The Crown in effect, says that the accused has a particular and unusual way of conducting himself or a peculiar pattern of behaving which is apparent from the accounts given by a number of witnesses when they are considered together. The Crown's argument is that the possibility of the adverse outcomes that are referred to as so similar by chance is so remote, therefore the only explanation is that the accused acted in the same way on diverse other occasions, supporting a conclusion that the accounts given by the witnesses, including what the deceased reported, are true. 6. The Crown argues the only explanation for the similarity is that they are true accounts of the way the accused behaved in each circumstance under consideration. The more similarity the accounts, the less likely it may be that the accounts can be explained by chance or invention. 7. If there is no acceptance by me of such similarity or pattern of behaviour existing, then I will look at the evidence of those witnesses independently without having regard to the evidence of other. If the arguments of the Crown are not accepted and there is no finding of such similarity, then I must disregard any similarity in the accounts all together and deal with the charges completely separately. I direct myself that I must not use the evidence of one charge to prejudice the accused with respect to the charge involved in the other if no such pattern is evident, and if there is no such pattern, then the cross admissibility argument was failed and the evidence must be disregarded. 8. In the context of this case, however, much of the evidence which was included under the tendency banner in the Crown's notice, has eventually related to direct evidence of what a witness saw or heard with respect to a particular victim or complainant. Ultimately the issue largely evaporated. However, the above, self-direction still applies where cross admissibility is a consideration. Circumstantial Evidence 1. Much of the evidence relating to medical issues, such as adverse medical outcome or causation is of a circumstantial nature. The following self-direction applied in addition to the above. 2. If inferences are to be drawn from any part of the evidence, I should not draw an inference unless it is the only rational inference in the circumstances. Circumstantial evidence is evidence of a basic fact or fact from which I as a fact finder, I am asked to draw a conclusion as to a further fact or facts. In the context of this case, many medical witnesses discussed medical facts from which they drew conclusions in the same way. Some witnesses indicated that the conclusions they drew, could not be drawn to an absolute standard either because absolute testing was unable to be taken or impractical to be completed. In those circumstances, they drew conclusion based on the evidence available, indicating when and if there was any uncertainty and the reasons for that. Those witnesses relied on the basic facts of which there was certainty, such a measurement substances in blood of the deceased, considered other available evidence and drew conclusion if they were able, to draw such a conclusion to their satisfaction. 3. In a similar way, where the Crown's case depends on circumstantial evidence, for example, here on the issue of causation, then it relies upon evidence of basic facts from which I as a fact finder, I am asked to infer or conclude that a further facts existed. The observations of the expert witnesses are a significant part of that fact finding exercise. 4. A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence depending on the nature of the circumstances relied upon when considered as a whole, and considering the degree of clarity and certainty of those circumstances. 5. In some areas circumstantial evidence might be thin and ambiguous and I would place no reliance on it at all. In other areas, circumstantial evidence may be strong and compelling. This is a matter for me as a fact finder to assess. However, I must always keep in mind that because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to the essential elements or ingredients of the charge, I cannot as a matter of law, find the accused guilty of a charge ,unless I am satisfied beyond reasonable doubt that there is no reasonable explanation for the evidence as a whole other than the guilt of the accused. 6. That is, when I look at the evidence as a whole regarding the count on the indictment, I am considering I should ask myself the question, has the Prosecution proved beyond reasonable doubt that there is no reasonable explanation or theory of evidence consistent with the innocence of the accused.? If it has done so, the proper verdict is guilty. If there remains some other reasonably possible explanation for the outcome, then the verdict must be not guilty. 7. Any such conclusion of the guilt of the accused from the basic facts relied upon by the Crown, must be a conclusion which by me, beyond reasonable doubt, having taken into consideration, not only the material presented on behalf of the Crown, but also any material presented on behalf of the accused and after having given careful consideration to the submissions of Counsel on behalf of both the Crown and the accused. 8. The Crown must prove each element of the offence charged against the accused beyond reasonable doubt. If the Crown seeks to prove an element such as one relating to the presentation of the deceased at particular times, or her state of mind when communicating with the accused ,by way of circumstantial evidence, they must prove beyond reasonable doubt, there is no reasonable explanation or theory of evidence consistent with the innocence of the accused. 9. The Crown does not have to prove beyond reasonable doubt, each of the individual facts from which the Crown seeks to have that rational inference drawn. The quality of the evidence to prove individual facts, can and will differ and that is something that I will take into account in deciding what further conclusions can be properly drawn. The Evidence of Expert Witnesses 1. A number of expert medical witnesses have been called to give evidence in the trial and have provided reports. These expert witnesses are individually relevant to each charge on the indictment. It is convenient to note directions I must give myself in relation to those witnesses at this stage. 2. I have referred in count 1 to the evidence of two expert witnesses and ...(not transcribable)... evidence was not challenged. This direction applies to their evidence as well. 3. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a person with such specialised knowledge, may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, what they saw or heard and are not permitted to express their opinions. 4. The weight of any expert opinion is dependent upon the reliability and accuracy of the material which the expert used to reach his or her opinion. The weight of the expert opinion is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. In the context of this case the Court also considered their understandings of questions asked of them in framing their reports. 5. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge. Evidence outside their specialised knowledge and experience is rarely useful in the fact-finding process. 6. The expert evidence has been admitted here to identify medical or disease procedures and processes and the consequences of those processes in the presentation of the complainant in count 2 and the demise and the circumstances of the deceased in count 3. In addition, evidence has been admitted as to medical protocols and norms. The evidence is admitted to assist in the determination of whether the accused's acts or omissions in the course of the procedures he carried out, (relevant to counts 2&3) and whether the post-procedure treatment or advice he gave amounted to gross criminal negligence (in the case of count 3). The Crown says this combination caused the ultimate adverse medical outcome in count 3 . 7. In relation to count 2 the evidence was admitted to assist the Court as to the nature of the procedure undertaken, to explain the processes as was viewed in videos and photos and to explain the outcome which the Crown says was an adverse medical outcome. The defence has a different view on the final outcome in relation to count 2. 8. If having given the evidence of an expert witness careful consideration I find that I do not accept the evidence of what the expert witness says I do not have to act upon it and this is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be or the expert opinion is based on considerations that are not within his or her expertise. In the present case in relation to particular issues there is conflict in the evidence between the expert witnesses. It is not a matter of simply choosing between their evidence as a matter of simple preference. 9. In resolving the conflict between the evidence of the expert witnesses I must always keep in mind that it is for the Crown to prove its case beyond reasonable doubt. It is for me to decide whose evidence and whose opinion I accept in whole or in part and whose evidence I reject altogether. I should keep in mind that in reaching a verdict I must consider all of the evidence. In resolving any conflict in the expert evidence I am entitled to consider that particular evidence in the context of all of the evidence before me. Facts 1. Agreed facts were tendered at the commencement of the trial, some of which are referred to above. Those agreed facts are relevant to all counts on the indictment. No further evidence is required for the Court to make findings on facts which are subject of the s 191 agreed facts document. 2. Agreed facts will be referenced in discussions relevant to that charge in order that they retain context . In addition, general evidence in relation to all of the charges by way of background information was proffered. Most of it was not in dispute. All of this evidence is relevant to the remaining two charges to a greater or lesser extent. Some of the evidence referred to below is only relevant as either tendency or coincidence evidence, thus potentially relevant to the remaining charges on the indictment and will be so noted. Where the evidence is relevant to a particular charge or count on the indictment it will be referenced as far as possible in a discussion of that witness's evidence. I have noted where there have been objections to the admission of some evidence and dealt with those objections in the manner referred to above. Where additional reasons are required they will be referred to in discussion of that witness's evidence. General Evidence Relevant to Counts 2&3 and Tendency/Coincidence Considerations Kerrie Spratt 1. Kerrie Spratt, is an environmental health officer with the Central Coast Local Health District. Her duties included enforcing Public Health Act regulations including regulations for the skin penetration industry. She investigated the shop known as "Transitions" in this context after a complaint was received. The inspection did not uncover any breaches of the regulations. Further reference is made to those regulations below. 2. In conversation with the accused Ms Spratt asked what type of procedures he performed. He told her that many people asked him to fix procedures doctors had botched, without further detail except that he had travelled the world training others. She gave him three fact sheets on infection control and sterilisation for people in the body piercing industry. He responded that he had seen them before, had done a course and also trained people. Ms Spratt asked if he provided after care information and he said that if people did not contact him he contacted them. She was told, either he or his partner, Ms Molloy, provided what she understood to be an after care brochure. (exhibit E, tendered by defence.) This document is a price list for piercing with an indication that prices for non-piercing body modification were to be obtained by email. After care information provided relates similarly to piercing procedures with references to jewellery. Under the heading "Healing Troubles" advice is given on saline or honey rinses, not to play with jewellery and not to use alcohol wipes, Dettol, Betadine and harsh cleaning products. I observe that exhibit E also gives contact detail for Facebook, Instagram and email 3. The witness, spoke to Ms Molloy, who told her that body modification procedures were not done at the shop. 4. Ms Spratt's evidence was not challenged. Lindsay Whitehorn 1. Lindsay Whitehorn is as tattoo artist, who previously worked at Transitions at Erina Fair from about 2017. His evidence is relevant to count 2 and tendency. 2. He said he saw the accused (referred to as Brendan, doing procedures such as tummy tuck, scarification and silicone implants. He said on the day he saw a tummy tuck procedure he went into the room and there was in his words "a lady on the bed with the top of her pants rolled down. She had her hands up over her face and was a bit distressed. Her husband was present." Although the witness did not identify his observations as relating directly to count 2 a conclusion can be drawn that this occasion was 13 November 2016. The details were the same, and no suggestion was put otherwise. . 3. Mr Whitehorn said he saw the accused cutting into the woman's abdomen with a scalpel. He described the procedure that he saw and said he was shocked at the amount of blood. He observed Brendan was in normal clothes. He said he was able to walk over and looked and was not required to wear a mask or take any hygiene precautions. This evidence is direct evidence with respect to count 2 and relevant to a consideration as to whether the accused had a tendency to undertake procedures without appropriate antiseptic techniques to reduce the risk of infection. Mr Whitehorn's evidence was not significantly challenged. David Olteanu 1. David Olteanu is also a tattooist who knew the accused and the deceased in count 3. He gave evidence relevant to count 3 and tendency. He recalled the deceased, CC, as one of a large contingent of people who would hang out with Brendan and Alex, (the accused and his partner), and was always there "getting stuff done". This does not appear to be in dispute. The agreed facts for count 3 deal with the procedures undertaken. I will refer further to Mr Olteanu's evidence in count 3 in a discussion of that count. 2. In relation to tendency evidence the witness gave evidence that he questioned some of the things the accused did with him, such as doing things in a studio setting in a shopping centre. 3. This witness observed what he said was an infection he saw in a client of the accused and he complained to the Health Department. He denied the complaint or his evidence in this trial was coloured by the fact that the accused was a business rival. 4. In cross-examination when asked about a conversation with the accused after the deceased died the witness said it was the accused's usual practice to say to any client who had a problem "come and see me before you go to a doctor"(T p 322 lines 8 to 11). 5. It is a consideration in assessing the honesty of his evidence, however, much of it is supported by evidence of others. Further discussion of Mr Olteanu's evidence is below. John Brady 1. John Brady is also known as Ox, his evidence is relevant to count 3 and tendency. 2. He was a friend of the accused from 2012 and also a tattooist. They had a falling out and volunteered he was and is still upset by what he believes to be non‑payment of $25,000 for the work he did on the Transitions' shop fit out. 3. Relevant to the tendency/coincidence considerations Mr Brady said that he became concerned about standards of hygiene after he himself did a hygiene course in about 2015. His evidence was that he watched Brendan, the accused, over the years doing earlobe constructions, reconstructions, scarification, skin peels and some implants. Later he helped the accused with some basic procedures. He said that the accused used anaesthetic, he commented, "on everyone" via syringe. 4. He said that during procedures the accused used sterile gloves, sometimes a mask over his mouth but did not wear sterile clothing during procedures .Mr Brady mentioned observing a procedures being carried out while the accused was wearing his street clothes and thongs which Mr Brady considered to be unhygienic. This witness said he had concerns about hygiene and he told the accused of those concerns on numerous occasions. 5. In addition to his failure to wear a sterile mask or surgical items while performing procedures Mr Brady also observed on occasion the accused put instruments outside the sterile field or put bloody gauze down in inappropriate places. He said he saw him using the autoclave multiple times and observed him stacking pouches on top of each other which would not allow for proper sterilisation and he would stop the autoclave on the drying cycle which also did not result in proper sterilisation. He observed this many times. 6. Mr Brady observed the accused displayed his qualifications and said he often bragged about good he was. He heard him say to others that he was better than a doctor and that he was better than other mod artists in the world. 7. This evidence supports the observations of witnesses that the accused was confident in his own abilities. This observation, unchallenged offers general corroborative support to the evidence of Alex Malloy and BB which I will refer to later in count 2. 8. In answer to questions in cross-examination Mr Brady said he recalled specifically Brendan saying he did sutures better than a doctor and that "doctors don't know shit". Other witnesses corroborated the accused speaking in this way about his ability compared to doctors. This is not part of the Crown tendency case but I mention it as it may otherwise have been evidence of bad feeling by this witness towards the accused but he was far from alone in this observation. The other evidence simply supports the credibility of this witness. 9. Further, in relation to the performance of procedures without appropriate antiseptic techniques Mr Brady said he observed the accused put silicone implants on display at conventions, allow people to handle them and then re‑place them back into a bag with all other implants. He felt the whole process was unhygienic. He recalled an occasion when he saw fibres on the implants which had been on display and he told the accused that they could not be used as they were contaminated. He said that Brendan replied that it was all good because he cleans them. 10. Mr Brady agreed that in February 2017 he participated in an expo suspension which involved the accused placing hooks into his flesh and suspending him above ground. He said that he was confident that this was safe as they used his own hooks, not Brendan's, suggesting that the hooks used for that exhibition had not been the subject of the accused's unhygienic habits. 11. Further and generally he said that when he pulled Brendan up on hygiene matters, he said, there was always an excuse. He said he also told Alex (Malloy), of his concerns and observed her to talk to the accused about this issue. The witness Alex Malloy confirmed that she had done so corroborating this part of Mr Brady's evidence. 12. In relation to tendency issues this witness's evidence was largely relevant as tendency evidence of the accused's alleged tendency to undertake procedures without appropriate antiseptic antiques to reduce the risk of infection. It is relevant to counts 2 and 3 on the indictment. There is ample other evidence to support this evidence. 13. Mr John Brady also gave direct evidence in relation to count 3 which I will note at this stage because of the observations I will make about his evidence. He said he met CC when she was being suspended by a skin hook at a tattoo expo. (exhibit 23) 14. He gave evidence which was the subject of objection at p 10 of the accused's table of objections. The objections are sustained for the reasons set out by defence counsel and that evidence is disregarded. 15. After CC died Mr Brady told the court that Brendan told him that she died of "prescription overdose" and he (Brendon) was the last person to speak to her. The accused told this witness that he "told her to take more pills and go to bed". I observe that this evidence is supported by the evidence of Ms Malloy and to a lesser extent Mr Oltaenu. 16. After he heard the accused had been charged with something he telephoned and spoke to a person who he believed to be Alex (but was probably the accused's wife Marina). 17. In cross-examination and in denying that his decision to talk to the police was related to the dispute about payments, he said that there were multiple reasons why he gave his statement, part of which the payment dispute but also because someone died and that he was lied to. He added "the fact that he was still owed money did not influence what he said." He denied that he told the person he thought was Alex that he would be a witness for them if he was paid. 18. I observe that Marina's evidence only went so far as Mr Brady she did not say anything about the proposed content of that evidence. Further observe that if this conversation occurred it took place well before Mr Brady, or anyone else was aware of what would be an issue at trial . Ultimately it was the police who contacted Mr Brady, not the witness who volunteered to give this evidence. 19. Mr Brady also denied that he was giving evidence to get rid of a competitor as he now works in Queensland. 20. The observation above of the relevant portions of this evidence being substantially corroborated by Malloy and Oltaenu further supports the credibility of this witness's evidence as a whole. It is consistent with Mrs Marina Russell's evidence. 21. I found Brady to be a truthful witness, whose evidence was corroborated as noted above. Marina Russell 1. Mr Russell's wife Marina Russell was called by the accused . She told the Court that she first met the accused in December 2017 and married him in April 2021. She told the Court that the witness John Brady known as Ox telephoned her after the accused was arrested in early May 2018 and offered to give evidence in their corner if he was put in funds. This was an obvious reference to the money he believed he was owed. 2. In cross-examination she said she overheard a telephone conversation between the accused and Mr Brady and heard the accused telling Mr Brady that he did not do the female genital mutilation procedure and heard Mr Brady tell the accused that he had heard Alex and AA were behind the complaint. She heard no conversation between the accused and Mr Brady relating to money or relating to the evidence he did ultimately give, relevant to issues of antiseptic practices at the business. 3. Mrs Russell's evidence was of little assistance to the accused and little relevance to the proceedings. Mr Brady did not deny that he was owed money and the observation of his evidence shows that he confessed to a number of reasons why he gave evidence in the current proceedings, one of which was the money he was owed. 4. On another issues Marina Russell agreed that she had attempted to assist the accused after the HCCC inquiries commenced following the death of CC. She sought advice from her cousin who was a lawyer and lied to her about the use by the accused of local anaesthetic . She subsequently advised the accused that he should do body modification procedures while on holidays only, by which she meant interstate. She advised him to delete all references to local anaesthetic on his website and be careful of records that were kept at the Transitions shop. She agreed her plan was for the accused to keep his body modification business but not to be the subject of further investigation by the HCCC. On a recorded telephone conversation the accused agreed that he had deleted all references to local anaesthetic on his website. Alexandra Malloy 1. Alexandra Malloy the former business partner and live-in girlfriend of the accused gave evidence relevant to the background matters in count 2 and 3 and tendency. 2. She said they met in 2011 and had a shared interest in tattoo-related business activities. She said that when they met he was doing all sorts of body modifications and using anaesthetic injections for bigger modifications. As far as she was aware, there was no formal qualification procedure for this activity. A personal relationship commenced in 2014 and in 2016 they opened the business Transitions at Erina Fair Shopping Centre. The accused provided funds for the setting up of the shop via his family. She described the layout of the shop which included a reception are and sections or rooms for body piercing, laser tattoo removal and a barber. 3. They both worked in the shop, she mainly in reception and laser tattoo removal and the accused doing tattoo and body modifications, both of which occurred in the tattoo or piercing room. She said that she observed the accused performing body modifications regularly and never heard him advising clients of the risks of infection. Her evidence was that at the end of the procedure there was a brief discussion during which he would offer advice to "keep it clean". If a client asked any questions he would briefly answer and sometimes give advice about the use of camomile teabags. 4. In relation to the consent procedure she advised of consent for piercings and tattoo was by way of online procedure called the Stab Pad which was subscribed to by the business, but that "No consent procedure at all was instituted for body modifications" (T p 355 ln 15.) Ms Malloy told the Court that – (and I'll read out the quote because she stops and starts): "Brendon never wanted to do that for body modifications because he didn't want to. He knew it was a grey area and he said 'you don't want to trace that'", … "Every client always filled out one for laser piercing and tattooing but he would tell us all not to have body modification clients fill it out". Honesty and reliability of Ms Molloy's evidence 1. In assessing Ms Malloy's evidence ,scrutiny is necessary. It is noted that she gave no explanation for her advice to Ms Spratt (environmental health officer) that body modifications were not done at the shop. She was deliberately dishonest with Ms Spratt. She gave evidence in general that she felt overawed and convinced by Mr Russell of his skill at body modification procedures. Whether this is true is not a matter that was explored, nor was her possible assistance to what she apparently believed were potentially illegal processes being undertaken at the shop in which she was a partner. Ms Malloy's evidence in general must be assessed with this in mind and the understanding that she participated knowingly in a business which apparently was inherently dangerous and as the Crown alleges, was operated in such a way as it posed a danger to clients. There are other reasons to assess her evidence with care. There is no doubt that while the business was operating Ms Malloy benefitted from it personally and financially. There is also no doubt that her opinion of the accused now is very poor due to the breakdown of their personal relationship. 2. Her presentation and the tenor of her evidence displayed a great deal of animosity towards the accused. There are several potential explanations for this animosity. She may be angry due to the post-facto reflection on the issues she now complains of in the performance of procedures ,or because of the breakdown of their personal relationship, and/or the difficult personal circumstances she now finds herself in opposite the complainant in count 2. I further observe that this witness still runs a piercing and laser removal shop, apparently at the site of the old Transition shop that she ran with the accused. Her personal reputation may be under some scrutiny as a result of her involvement with that establishment and she may well be seeking to distance herself. 3. All of these matters will taken into account when assessing her evidence generally and in relation to each that she give evidence about. . Scrutiny of her evidence is necessary. However apart from being occasionally challenged in cross-examination that she was not telling the truth, there was no evidence put before the court to dispute any part of Ms Malloy's evidence. 4. Her evidence is corroborated by the versions given by the complainant and ZB in count 2. In matters of tendency evidence she supports the observations of Mr Brady. In making this observation I am not suggesting that it was for the defence to disprove her evidence. 5. A further observation of her credibility and reliability is contained in a discussion of her evidence relevant to particular charges. Further evidence from Ms Malloy will be referenced specifically in the discussion of her evidence relative to count 2 and 3. The warning about scrutinising her evidence is relevant for all of that evidence COUNT 2 1. COUNT 2 is the charge of causing grievous bodily harm with intent. The elements to be proved are: 1. That the accused on 13 November 2016. 2. Caused grievous bodily harm. 3. To BB. 4. With intent to cause grievous bodily harm. 1. Grievous bodily harm is defined to include any permanent or serious disfiguring of a person. 2. Agreed facts give background to the procedure. The tendered agreed facts are: 1. The complainant in this matter is BB. BB met the accused in July 2016 through Malloy, who is her husband's cousin and was in a relationship with the accused at the time. 2. On an occasion in July 2016, after she had met the accused a few times, BB was at Transitions, Erina Fair Shopping Centre, getting her son's hair cut. While she was waiting she spoke with the accused who told her about the procedures he was doing. 3. BB arranged with the accused that he would perform a procedure on her to remove skin from her abdominal area. BB booked the procedure for 7 November 2016. 4. BB had to cancel the 7 November appointment but rebooked for 10am on Sunday 13 November 2016. On 13 November BB attended the appointment with her husband, ZB, and the accused carried out the procedure on her. 1. Element 1 is that it was the accused who carried out a procedure on 13 November 2016. It is not in dispute by the above agreed facts . 2. Element 3 is that a procedure was carried out on BB and this is not in dispute on the agreed facts. 3. Further background evidence was given. Much of it was not challenged and is not in dispute. Evidence was given on the issue of consent to the procedure and the circumstances of that consent. A portion of the evidence of BB and ZB is relevant to the Crown's tendency argument. I will refer to the relevance of each piece of evidence as it is summarised. Background Evidence BB 1. BB expanded on her decision to undergo the procedure, telling the court that she and Alex Malloy had talked light-heartedly about having excess fat on the tummy after childbirth and how it was impossible to get rid of. She said that the accused showed her a picture of a girl in New Zealand on whom he said he had completed a tummy tuck and said that he could do that for her, or words to that effect. She enquired as to whether he used a local anaesthetic or not and he indicated that he did and he had been told that his fanning procedure was the best doctors had ever seen. 2. On the first day they had a discussion in the tattoo room about what was to occur and she indicated that she would think about it. Eventually, the procedure was booked for 13 November to coincide with the completion of her nursing studies. There is no dispute that she was nervous, but she agreed to the procedure as described to her. 3. On the day of the procedure she went to the Transition shop and went into the back room with her husband, ZB. She sat on the beauty therapist's couch and observed a trolley with a blue sheet on it and a scalpel and a couple of other things. She remained in her street clothes which were pulled away as she lay down. She said the accused wore surgical gloves but no mask or other protective clothing. Her husband, who remained with her throughout, did not wear a mask. There was another man, she said, with red hair who was present . Alex who came in at one stage. No one in the room wore a mask or any surgical clothing. In his evidence, her husband ZB indicated that he thought the accused may have changed his gloves at some stage, but both said there was no mask. 4. The lack of mask is supported by the evidence of Malloy and supports other evidence of the accused's tendency to perform procedures without appropriate antiseptic procedures to reduce the risk of infection. 5. BB said the procedure started after cleaning of her abdomen had occurred, and numbing spray and local anaesthetic which was injected had taken effect. As the procedure started further lignocaine was injected, after which, she could feel pulling in her abdomen region but no other pain in that area. 6. However, she said she felt terrible after the procedure started and was cold and shaking. She said a girl came in and gave her a blanket. This is further evidence of the lack of antiseptic care and procedures. 7. BB said the procedure seemed to be very long. She had her hands over her eyes and her head under a blanket. At the conclusion of the procedure she said she was feeling very dizzy and her husband helped her to the car. She was advised by the accused to come back in about a week to get some of the stitches removed. 8. When she got home she went straight inside, took some Nurofen and Valium and lay down on the lounge to sleep. After about an hour she woke up in what she said was horrific pain and there was a lot of blood on her nightie. She felt very dizzy. She heard her husband telephoning Brendan, and her husband came back and gave some advice. 9. The next three days she was in a great deal of pain and spent most of the time on the couch, unable to sleep and unable to mobilise. After five or seven days she went back to the Transitions shop with her husband to get the stitches out. The accused took, (she thought) two stitches out and replaced them with Steri‑Strips. He told her to leave the dressing on for a few more days. She said she asked him why there was so much blood and he told her it was the way the body was healing. This evidence is admitted over objection, which ultimately was not maintained. Just to expand, that evidence was admitted because it was a direct conversation between the complainant and the accused. 10. The witness said some stitches remained and the accused told her she had to go to the doctor in ten or so days and then get them removed as he would be in Italy. 11. BB's evidence was that over time the wound continued to deteriorate. It presented with lots of dried blood, she said, and bruises and lots of red skin around the cut. She noticed gaps and the wound opening where the Steri-Strips were. 12. Eventually, she went to the doctor to get the stitches removed. The doctor asked what happened but she said she did not tell him. She asked for the stitches to be removed. She told the Court it was not possible for the doctor or the practice nurse to remove the sutures as there was too much dried blood. She was advised to go home and have a salt bath, which she did. Eventually, the practice nurse told her that there was a need to go to hospital, which she was reluctant to do. 13. Eventually, her husband sought advice from her friend Rachel, a hospital nurse, who convinced her to go to Gosford Hospital the next day, which she did do. She was immediately admitted to surgery and had surgery under general anaesthetic. 14. She is aware, and was aware, that her husband was in contact with the accused and Alex Malloy within that time. There is objection to the evidence as the information the accused allegedly gave was delivered in conversations between ZB and Malloy . It is heresay and I uphold the objection and will disregard that evidence entirely. 15. The evidence of BB is, therefore, in relation to the events that she conferred during the course of the procedure and the aftermath to it with the accused, and only those conversations are admissible. . 16. In cross-examination BB told the Court that she did not tell the hospital the name of the person who did the procedure. She told them it was somebody in Surry Hills, explaining that she wanted to keep it (information about the procedure) away from the Central Coast area. She said at the time her emotional state was very bad and she was very embarrassed at having undertaken the procedure. 17. The decision by the complainant not to give the name of the accused at the hospital seems to have been her decision based on her own embarrassment. She did not say that the accused dissuaded her directly from either going to a doctor or telling the doctor who had done the procedure. He recommended that she attend the medical centre to have the remaining stitches removed as he would be away. 18. The complainant ultimately had corrective surgery at Gosford Hospital. 19. The accused concedes that the resulting scar, as seen in exhibit 1, directly relates to the procedure he undertook. The evidence of Dr Di Sano and her report, exhibit 6 detailed below, sets out what was required to remedy the problems caused by the procedure. 20. Sometime later BB underwent a further corrective procedure which was performed by Dr Clark. Dr Clark performed a full abdominoplasty, including removing some fatty tissue and in effect removing the Gosford Hospital scar. 21. The result for the complainant is now a low scar from hip to hip that BB, is now happy with. In effect the damage caused by the accused's procedure which was corrected at the Gosford Hospital was effectively removed and the skin re‑joined. 22. BB said that after the procedure she and Alex were not close. She decided to complain to the police after she had heard a news item about somebody else who also had difficulties with the accused. She contacted Alex from the police station during the course of making a complaint to police and asked about particular dates when events occurred as she could not remember that detail. They had not spoken about making a complaint prior to this. She agreed that she was in an angry state of mind about the lack of care given to her by the accused. She and Alex sat in the police station room together but did not talk about the evidence that was to be given in court, they talked about "personal stuff." 23. BB's evidence was not significantly challenged except to suggest that she was talking on the phone during the procedure and that she discussed her evidence with Alex prior to giving information to police. She denied this and Alex similarly denied collusion. As to whether BB was talking on the phone or not during the procedure, this is a completely irrelevant consideration. ZB 1. ZB, BB's husband gave evidence and confirmed the nature of the procedure . He filmed part of it on his phone, (video exhibit 7). This video clearly evidences the accused cutting into the skin and tissue of the abdomen with a scalpel and removing the tissue entirely as described by Dr Bezic .Exhibit 4 contains 18 photographs of the procedure being undertaken. These videos and photographs clearly evidence what appears to be a really serious injury. The video shows the application of a scalpel along the top line of the abdomen and a second incision coming around the lower line to create an area which represents approximately two-thirds the width of the hip to hip area and about a third to a quarter of the belly button to top of pubis area. The video shows a significant degree of bleeding during the course of the incision. After the skin has been drawn away, the accused removed a sausage shape of flesh from the complainant's abdomen. Gauze was used by the accused to soak up significant bleeding. 2. ZB also said he observed the accused standing the scalpel up vertically in the complainant's fatty tissue and letting go of it; (T p 99 14 September 2021). He pointed out in exhibit 4 image 6 heavily bleeding where he said the scalpel had been imbedded. This was not apparently caught on video but is a matter commented on by Dr Di Sano as potentially being related to the hole she observed in the abdominal wall. 3. After the procedure ZB took his wife home and observed her to be in significant pain and bleeding profusely. He said he had to carry her to the bathroom and her nightie was covered in blood. He contacted the accused for advice. 4. Most of ZB's evidence was not challenged except the observation of scalpel play. Dr Di Sano's evidence supports his evidence and in turn his evidence supports the complainant's evidence of an adverse health outcome as claimed in both the tendency and coincidence notices. 5. In the next three days ZB said he physically looked after BB who could not mobilise. When she returned to Transitions to have stiches out he transported her and spoke to the accused who told him that the presentation of the wound was "as expected and healing". ZB said that after the procedure his wife could not do anything physically for herself. She could not drive, she could not shop. He accompanied her to all of her appointments including eventually medical appointments. He communicated with Alex Malloy about his concerns and the problems he perceived to be as a result of the procedure. 6. After the visit to the medical centre to have the stitches removed, ZB contacted a friend, Rachel Horton who was a registered nurse and recommended attending the hospital as a matter of urgency. ZB took her to Gosford Hospital. BB was immediately put on intravenous antibiotics and surgery programmed. ZB was in contact with Alex Malloy while the accused and Ms Malloy were overseas. Conversations occurred regarding his wife during that time. Again I note defence objected to those conversations being attributed to the accused. The objections are contained in the defence objections table, pp 4 to 7 inclusive. I agree with those objections and the evidence will not be admitted. Alex Malloy 1. Alex Malloy gave evidence in these proceedings. In addition to the background evidence that I have referred to above. 2. Ms Malloy is the cousin of ZB, husband to the complainant in count 2, BB. On the day BB and ZB came into Transitions this witness, Malloy, was there. She described a joke between them about retaining belly fat after childbirth. The accused was part of the conversation and told BB he could do a tummy tuck to solve it. He showed a picture of a New Zealand girl who he said he did this procedure on to get rid of fat above a caesarean scar. Malloy supports BB's evidence that it was the accused who showed the picture of the New Zealand procedure on his phone. Ms Malloy said she was not present when the procedure was actually done in New Zealand. 3. She was challenged that it was she who had shown the picture to BB. I accept that she did not, however she was present when it was shown and on all of the evidence she was supportive of the procedure for BB. There is no evidence that she attempted to talk BB out of it or warned her of potential risks herself. 4. In relation to the explanation given to BB for the procedure, she said, transcript p 362, line 25, "Brendan explained like it was just nothing but he also explains it so intelligently, like he uses all the medical terminology and wording that you just end up trusting him." 1. She said there was no discussion between the accused and the complainant about risks either on the first day or at any other time. As noted above there was no formal consent procedure undertaken. 2. On the day the procedure occurred she said that BB was very nervous but that the accused was "hyped up and made jokes about her looking like Elle McPherson". She said that the procedure occurred in the piercing room. The accused wore no mask or special clothes except for surgical gloves. Malloy said that she came into the room when he was, as she said, "cutting through fat". Malloy observed no one had medical masks on including her. I observe that in part of the video a person identified as her claiming "That's cool", again indicating that her disapproval of this procedure is retrospective. 3. After the procedure Malloy did not hear any discussion about aftercare other than Brendan telling BB to "her to keep it clean, change the dressing and take Advil". The accused told BB to wait, she thought ten days, and then return to have the stitches taken out. She was certain under challenge that BB was told by the accused not to tell a GP that he did it giving the reason that "they don't understand." BB did not give this evidence. 4. While Malloy and the accused were in Milan, about two weeks after the procedure, ZB sent her a message to her phone with pictures of the complainant's abdomen which she observed was red and swollen. Malloy said that she showed the accused this and he said it was fine. She said they argued about it and a series of texts between her and ZB related to this issue. Her understanding was that while they were away the complainant sought medical advice to have the GP remove the stitches. A problem arose due to bleeding and apparent infection at the operation site. There is no evidence that this witness nor the accused were appraised of the detail of this issue. When this witness and the accused returned home ZB called her and told her that BB had collapsed and was really unwell. ZB told her that they wanted to go to hospital. 5. Malloy's evidence was that the accused told her they should not go to hospital, and further, told Malloy to tell them that, but if they did go to hospital, they should not say it was him. Malloy said she felt threatened at this point, and I will have more comment on that later. She said she relayed the message from the accused, to ZB. Thereafter, she said that the text messages were sent on Brendan's behalf, expressing concern. It is irrelevant if his concern was genuine by this stage, or not. 6. After BB came home from hospital, Malloy organised for she and the accused to go and see her. BB was on the couch when they arrived and she said that she and ZB went into the kitchen so BB, and the accused could talk privately. Malloy said she heard BB say to the accused that he cut into muscle, and she heard him say that he did not, and that doctors do not know anything. She said she overheard him tell BB that doctors are just going to discourage anything that a doctor did not do. He further said that he could have fixed it and asked BB if she gave his name at the hospital, and Malloy said she heard BB say that she did not. 7. This witness was challenged in cross-examination on many details of the conversations that she said she had overheard. It is noted that neither BB nor ZB recalled the conversation in this particular form. However, it is also noted that the complainant was told to the effect that the abdominal muscle had been holed in the procedure undertaken. Such was the observation of the hospital surgeon, Dr Di Sano. There is therefore some support for this conversation having occurred. In addition, the evidence of about BB not telling who performed the operation is confirmed by her. 8. Alex Malloy told the court that her relationship with the accused broke up in 2017, sometime after the difficulty with BB. She told the court that part of the reason for the relationship breakup was her concerns that the accused was taking on too much by way of body modification and was trying to talk people into things. She said that she disapproved of some of his activities including doing procedures she felt were beyond his capacity and were dangerous. 9. It was put to her in cross-examination that her motivation for going to the police was based in general terms on the souring of their relationship and her belief that the accused was messaging people behind her back. Malloy agreed that he was messaging people behind her back but denied that this was the cause of her going to police. She denied that she discussed with BB anything in relation to the statements. 10. My observation is that Ms Malloy is unhappy with the accused for a range of reasons, some of which appear to be retrospective disapproval of his behaviour in body modification and his, what she said, was sexualised tone towards some customers, who she called "groupies". She said that she discussed some of these concerns with the accused while they were together, however, it is clear that their relationship was becoming unhappy for some time. 11. I observe that Malloy's attitude to the accused as at the time of her giving evidence was hostile. Her hostility was directed, she said, at her disquiet with his body modification procedures and work-related behaviour, and also his behaviour towards her in their relationship. It is clear from the tenor of her evidence that she feels a great deal of animosity towards him, which she justifies by what she perceives as his poor behaviour towards her while they were in a relationship. 12. An assessment of her evidence must take into account a fair assessment of this personal hostility towards him as it now exists. When they were in business together she says that she disapproved of his behaviour but they continued in business at least until after the events referred to in the charges. She supported his activities by posting of photos and arranging social media. 13. I observe that other witnesses, especially Mr Brady, support the proposition that she did complain to the accused about his unhygienic practices. However, I further observe that she told the council environment officer, Ms Spratt, that the accused did not do body modification at the Transition shop, when she knew that not to be true. She seemed, at least at that time, to be very supportive of his practices, which she now says she thoroughly disapproved of. An assessment of her evidence will also take this conflict into account. 14. On the other hand, much of her evidence of the events surrounding the tummy tuck procedure and the following events is supported by the evidence of BB and ZB and the photographs and videos that are part of the Crown case. Some of her evidence, such as the aftercare advice and the accused's references to not telling doctors who performed the procedures and lack of concern about infection control, supports, and is supported by, other tendency evidence. I am entitled to take into account the evidence from others, including Mr O'Neill, Duflou, Mr Oltaenu, Mr Brady, and video evidence tendered in both count 2 and count 3 when assessing the truthfulness of Ms Malloy's evidence on these issues. Dr Suzanne Di Sano 1. I turn now to the events after BB was admitted to hospital. Dr Suzanne Di Sano observed the procedure site as a transverse lower abdominal incision. This above observation together with exhibit 7, exhibit 4, and exhibit 6, represent the evidence the Crown relies on in relation to the element of causing grievous bodily harm. 2. Dr Di Sano was, at the time of attending on the complaint, a medical practitioner of five years' experience and involved as part of the surgical team, and was a surgical registrar at Gosford Hospital. Her report became exhibit 6 in the proceedings. Prior to surgery, she observed BB and saw a haematoma and large blood clot on the transverse wound, which she evacuated and cleaned. The doctor said there was no active bleeding at the time but observed a hole in the fascia, which is the top layer of connective tissue in the abdominal wall. She debrided a necrotic fat and skin, and reclosed the wound. 3. She observed that the muscle was exposed. She said that it was apparent that this entry through the fascia was consistent with the hole being the result of penetration occurring at the time of the previous procedure. In cross-examination she said it was uncommon for a person to have such a defect of the fascia. She said such a defect there might be a hernia, but in this case she observed that it was a recent occurrence and not related to hernia formation. 4. She said that such a breach of the connective tissue is possible to occur after surgery and if a person has been exerting themselves. However, she also observed that surgery such as what apparently was conducted should leave the fascia intact. She said that exertion would have resulted in a hernia rather than a hole in that area, and a hernia was not what she had observed. She said that a tear of the fascia such as she observed might be caused by a motor vehicle accident, or similar. She was asked whether her observations could be explained by soaking in a bath. She said NO. 5. As to corrective surgery, the suturing done at Gosford Hospital was not dissolvable in order to reduce the risk of infection. This decision by the doctor was made in the circumstances presenting, meaning the infection then presenting at the site of the previous operation. In the circumstances, a consideration of scarring was not a major concern. 6. In the context of this case there is no evidence of exertion by BB after the procedure and there is no evidence of the wound getting wet except immediately prior to an attempt to remove the stitches some two weeks after the event. The doctor's medical observations were not challenged, nor was there any evidence presented to dispute it. 7. On the evidence referred to above there is I find ample evidence to conclude that the adverse medical outcome of the procedure undertaken by the accused was caused either by the accused's incompetence, lack of care, lack of infection control, or all three. 8. As to the acts of the accused in undertaking this procedure Dr Ron Bezic observed the videos and photographs of it as it occurred, exhibits 1, 4, 5 and 7. His report, exhibit 12, notes as follows: "The area to be surgically removed was marked with a texta approximately 20 centimetres long by 6 centimetres wide in her lower abdomen. The defendant then tucked sterile packaging that had contained the surgical gloves into the victim's pants to act as a rudimentary sterile covering. The area was then injected multiple times with a local anaesthetic likely Lignocaine 1 or 2 per cent with Adrenaline. The accused then began to incise the marked area with a number 15 blade scalpel When the patient felt pain Mr Russell began to administer more local anaesthetic. He observed that after the skin and flesh had been removed it was placed on a piece of plastic on the table which held implements. Once Mr Russell finished excising the skin he then began to repair the wound with multiple simple nylon sutures with the accused putting a stitch every inch across the wound and then completing the stitches in between." 1. The next in the sequence of events was further surgery by Dr Clarke who was a reconstructive surgeon who saw BB in August 2019 and gave advice about the resultant scar on her abdomen. He performed an abdominoplasty to improve the scar appearance. This was performed in February 2020. A long low scar hip to hip remains, exhibit 9. It appears that Dr Clarke and BB are satisfied with the result. Findings of Fact 1. The accused used a scalpel to cut through the skin into the flesh of the complainant in an elliptical form approximately 20 centimetres long and 6 centimetres wide. The accused removed the skin and flesh described as fatty tissue from the abdomen area of the complainant. The accused then sutured the wound with multiple simple nylon sutures. The wound was dressed. The immediate result of the procedure is as viewed in exhibits 4 and 7 and described in the report of Dr Di Sano, exhibit 6. 2. There was in summary a significantly adverse medical outcome requiring emergency corrective surgery. Part of the cause of this adverse medical outcome was a hole in the abdominal fascia caused I find by the accused imbedding the scalpel in the complainant's fatty tissue after cutting into it. The evidence of Dr Di Sano as detailed above gives a medical explanation of what was required to repair the wound. The result of the repair is contained in the photograph exhibit 1 which shows significant scarring over about a 20 centimetre width of the abdomen and approximately 1 centimetre wide in a dark colour. It is very noticeable. I have also observed that after the procedure by Dr Clark the scar is hip to hip but thin and I am told that eventually it will be very faint. Grievous Bodily Harm 1. Section 4 of the Crimes Act defines grievous bodily harm to include any permanent serious disfiguration of the person. I note that the definition is inclusive rather than limiting For harm or injury to constitute grievous bodily harm is a concept that was discussed by Garling J in Swan v R [2016] NSWCCA 79. Garling J said the definition is to be interpreted according to their natural and ordinary meaning and on its natural and ordinary meaning the phrase means not just serious bodily injury but really serious bodily injury. He continued there is no bright line by which an injury can be classified as really serious bodily injury, it is always a question of fact and degree and not every injury is capable of amounting to grievous bodily harm. 2. I also observe that his Honour, Garling J, referred to the injury itself and its direct physical effects, not the personal and social economic consequences of that injury 3. In the context of Swan's case Garling J was dealing with an injury which involved a fracture to a bone part of the lumbar vertebrae of the victim. The Court found a number of features of the bony fracture which tended against a conclusion that the victim suffered grievous harm. Those matters included the fact that there was no displacement of the fracture, it required no operative or other treatment including ongoing medical consultation, there was no permanent injury and the victim was in hospital for 48 hours. The other effect of the injury was certainly serious for the victim in that he suffered a significant degree of pain for a period of time which stopped him from working while the pan continued. However, he ultimately recovered fully after a period of weeks rather than months. The Court decided that the injury was better described as actual bodily harm. 4. In the context of the harm suffered by BB operative correction was required and the hospital stay and medical intervention was relatively significant. The resultant injury was a significant scar. 5. The submission from defence advocate is that the complainant's individual experience of pain resulting from the injury must be disregarded in determining whether the injury meets the grievous threshold . The quote must be taken in context, which was in Swan's case . Disabling pain was the major result of the injury in Swan's case which was significant but for a relatively short period of time. There was no other noticeable injury. The pain suffered by BB was a direct result of the cutting into the abdomen by a scalpel, the incompetent use of that scalpel creating a hole in the complainant's abdominal wall and the bleeding and tissue damage that resulted. The pain that she suffered is not in and of itself an indicator of grievous bodily harm but a direct result of it. 6. This is qualitatively different from the situation referred to in Swan's case. I do not understand that the defence submission is that the scarring resulting from the second procedure at the Gosford Hospital which defence admit is causally connected with the procedure undertaken by the accused could not be in and of itself amounting to grievous bodily harm or described as grievous bodily harm. 7. In order to avoid any misunderstanding I do find that the original procedure undertaken by the accused and the resultant scarring from the procedure on 7 December 2016 does amount to grievous bodily harm. The original procedure was a really serious cutting of the complainant's skin and flesh in a 20 centimetre by 6 centimetre elliptical form. The procedure included cutting of the complainants abdominal fascia. 8. The reference in defence submissions to the "cutting and removal of skin" without further reference is factually inaccurate. The video evidence shows significant blood and a sausage-shaped piece of flesh removed from the incision site. The result was that the procedure had to be the subject of emergency surgery at Gosford Hospital which in turn resulted in significant scarring. 9. In February 2020 as noted above, Dr Clarke revised that scarring and performed a further abdominoplasty. The result was in effect the removal of the Gosford Hospital scar area, a tightening of the lower abdomen area and ultimately a much more aesthetically pleasing scar, perhaps lower in the abdominal area. 10. Defence submit in effect that as the Gosford Hospital scar was entirely removed by Dr Clarke in what was a procedure unrelated to a medical need, then grievous bodily harm can no longer be proven. Defence reason that as the original scar can no longer be seen or in effect no longer exists, there is no permanent or serious disfigurement. This submission cannot be accepted. It is akin to a position where, for example, an injury occurs resulting in a finger on a person's hand being removed. Uncontroversially, I believe that would amount to a grievous bodily harm injury. If prior to that injury being the subject of proceedings, the victim's entire hand was removed in an unrelated incident, ,that on the defence argument would remove proof of grievous bodily harm as immediate evidence of the removal of the finger would no longer be available. This is an argument that cannot be sustained. 11. Similarly the fact that the original scar was removed and replaced with a more acceptable scar cannot be taken to have removed an original fact relevant to the element of grievous bodily harm, even if the current scar does not amount to a serious disfigurement (and I don't necessarily agree that it does not). As is noted in a case that I am familiar with, R v Wick [2017] NSWCCA 244 at 22, Fagan J observes and I quote: "That a skilled plastic surgeon was readily available and could repair the damage leaving no residual functional deficit and minimal disfigurement does not detract from the seriousness of the bodily harm occasioned." 1. The observation of the facts in that case were similar to this case. In Wick's case significant injury was caused to the complainant's face by way of a glassing. The victim received prompt cosmetic surgery intervention. The result was minimal if any residual scarring and no permanent damage to the nerves or eye area. Notwithstanding that the full Court agreed that the original damage was such that it could amount to grievous bodily harm, as the jury so found in Wick's case. 2. I am satisfied that the injury amounts to grievous bodily harm, therefore element 2 is satisfied. 3. The next issue is intent. The Crown have not addressed on the issue of recklessness or intent, in particular submitting that the fact that the accused agreed that he voluntarily undertook the procedure. Agreed fact 28 proves intent. Defence however argued that the accused did not intend to cause grievous bodily harm. They submit that the Crown could not establish this element because there is no evidence, they submit, that the accused intending any of the post-operative complications which occurred and further, that the evidence does not establish that the accused intended to leave the complainant with the scarring resulting from the Gosford Hospital operation. The submission is that the photographs showed to the complainant prior to the procedure represented what she could expect to be left with afterwards. 4. Defence suggest that a third of those photographs shows a very faint scar which they submit could not be regarded as constituting disfigurement. The accused's intention they say, was to excise a strip of the complainants skin from her abdomen which would leave with a faint white scar. I observe again that far more than a strip of skin was removed, however I will address the argument nevertheless. 5. Defence raising the issue in this way appeared to raise the issue of a potential alternative verdict available on the s 33(1) charge, that is s 35, recklessly causing grievous bodily harm. This was not raised formally and neither party addressed on it. The argument perhaps raises the proposition that the worst feature of the injury, the damage to the abdominal fascia, was not done with intent but perhaps recklessly. 6. After the conclusion of the trial I inquired if counsel wish to address on what appeared to be defence raising an alternate charge. The Crown did not object. Defence specifically opposed this being addressed. If this was a consideration, the question is whether a reasonable person in the position of the accused, being a person of the same age and experience as him and having the same degree of knowledge as him, would have realised that by doing the act he was exposing the victim to really serious bodily injury. As it was opposed and only raised by me at the conclusion of the trial, I did not and will not pursue it . 7. Doctor Bezic's report, exhibit 12, outlined the possible complications of the surgery, some of which were outcomes experienced by the complainant. 8. It was an act that was inherently dangerous and that conclusion is contained in para 33 of his report. However in considering the question of intent the above evidence is also relevant. The accused voluntarily performed the procedure with a scalpel. He removed a portion of the complainant's skin and flesh, as he said he would do. . There is no other conclusion to draw from the evidence other than that he intended his actions. That is an addition to the agreed fact. The fact that the result was much worse than he hoped for does not assist him. It is a consideration of guilt. It may be relevant later. 9. It is the complainant's evidence that the accused told her she would have a scar after the procedure. It is the complainant's evidence that he showed her the photographs in exhibit 18 which might be described as being of less significance than the result for the complainant. It is not necessarily defined whether that scar of the New Zealand procedure amounts to grievous bodily harm but it probably does. The fact that he showed a scar and told her she could expect one similar is further evidence if any is needed over and above the agreed facts that the accused intention to cut into her body in such a way that sutures to close the wound would be necessary is an important consideration. 10. The injury, the subject of this charge, is the cutting procedure into the complainant's abdomen. The immediate result is referred to in exhibit 6, Doctor Di Sano's report. The grievous bodily harm is caused by the accused action. The Gosford Hospital scar is the intermediate result. The final revision procedure for whatever reason it was carried out, does not diminish what occurred. (Wick's case, above) 11. . The injury amounts very clearly to grievous bodily harm. The accused intended to cause that harm. Elements 2 and 4 are also satisfied. Tendency – Coincidence Considerations in Additions to the Facts and Observations above 1. The observations above support an observation or a conclusion that the accused actions in performing this body modification resulted in the significant adverse medical complications suffered by the complainant. That much is clear from the evidence of Doctor Di Sano. I find that the adverse health complications did in fact occur. They were significant, producing pain, bleeding and infection requiring emergency surgical rectification. Doctor Bezic's evidence is that the adverse health complications were aggravated by lack of infection control. This finding may become relevant later when I turn to the issue of consent. 2. In evidence BB expanded on her decision to undergo the procedure. She said as I have observed above that the accused showed her some pictures on his telephone of a girl from New Zealand that he had given a tummy tuck to. She asked whether he used a general or local anaesthetic and he told her that he used a local and that he had been acknowledged by others as having a good fanning technique. 3. There is not suggestion that he told he was medically qualified to complete the procedure but he boasted off his abilities at least by suggesting he was competent to perform a procedure that would have a result similar to exhibit 18. There is no dispute that she was nervous but that she agreed to the procedure as described to her. 4. The Crown presented evidence from specialist Dr Bezic as to the minimum requirements for informed consent in medical context. In that context defence have referred me to the case of Reeves v R [2013] HCA 57 decision. That case was factually quite different to this case, however, the Court observed that in a medical procedure the nature of consent that is required in order to negative the offence of battery is as described in the case of Rogers v Whitaker [1992] HCA 58 decision, a civil case. 5. Defence quote para 15 of that decision which observes as follows, broadly the Court must be satisfied that 'the patient was advised in broad terms of the nature of the procedure to be performed. 6. However, para 16 of that decision goes on to observe as follows, that a risk is material if a reasonable person in the position of the patient would attach significance to it. 7. In order, therefore, to comply with an informed consent requirement in the context of this case it probably would have had to have been in writing or at the very least in the online form called the Stab Pad which according to the evidence of Malloy was used for the far less serious piercing procedures. Any informed consent would have had to include acknowledgment of the potential adverse consequences of the procedure which in the context of this case included bleeding, pain, unsightly scars and potential medical complications due to the lack of proper skill and training of the person who performed the procedure. 8. It is not in dispute that no such consent was obtained. 9. The complainant said there was no discussion about the risks of the procedure. She was not told of the potential for internal pain, internal bleeding or the risk of internal infection. She said the only discussion about bleeding that ever occurred when she went back to the accused at Transitions as requested to get her stitches removed after five or seven days. At that time the accused told her that the bleeding she complained of experiencing was part of the healing process. 10. BB denied that there was any discussion of being potentially in pain for 18 to 24 months, or any length of time. 11. She denied that she was told to look for any sign of infection such as a weeping yellow wound, heat or her glands feeling sore. 12. She said there was nothing put into her head that something could go wrong. 13. In considering the issue of consent in the context of this case it is clear that the complainant consented to the cutting into of her abdomen. The accused outlined on her where the cutting was to occur, told the procedure would be performed with a local anaesthetic, told her he was not a qualified practitioner and gave her some rudimentary, if inadequate, advice relating to aftercare, including the potential need for antibiotics. 14. She consented to the procedure that was outlined to her. 15. Save for the lack of competence in the performance which resulted in serious consequences she consent to the procedure that was performed. 16. The accused told her prior to the procedure that she should bear in mind that she would have a scar suggesting one similar to exhibit 18. She said that if she had been told there could be complications she would have been scared, however, the accused was very confident and she was convinced by his confidence. 17. Defence submit that the concept of informed consent as described above by Dr Bezic is of little relevance to the present charge and I accept that in broad terms the complainant consented to the procedure to be performed. 18. It is not necessary to address the remaining submissions in relation to the issue of informed consent. I simply note that I do not agree with many of those submissions. However, I do agree that the real question is not whether the complainant consented to the procedure as she understood it to be but whether her consent operates as a ground of exculpation, this is the most important issue for the Court to decide. Consent as a Defence 1. The Crown position is that the act performed upon the complainant was an unlawful act, therefore they say consent is not and cannot be a defence to such an act. 2. I have been taken to the English cases as persuasive authority for the proposition that consent is not a defence to a charge of wound with intent to cause grievous bodily harm as first referred to in the case of R v Brown [1994] 1 AC 212 and followed subsequently in English decision R v MB [2018] EWCA 260 and later approved in McCarthy v R [2019] EWCA 2202. 3. It was also referred to favourably in Victorian decisions R v Stein [2007] VSCA 300, R v McIntosh [1999] VSC 358. 4. In McIntosh's case which involved activity described as sexual sadomasochism the Court observed: "In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized." 1. The majority position in Brown's case above, the English case was that consent was not available unless the perpetrator was acting in the course of a socially useful activity. It was observed that such a principle would accommodated the sporting cases and perhaps sexual cases. 2. The Court identified a reason for this rule as being "paternalism" but considered that there was nothing wrong with paternalism "with which the common law has been engaged for centuries and if it is designed to protect the vulnerable members of society". 3. The Crown rely on the observation in R v MB where the Court in reply in Brown's case observed as follows: "There is no reason why body modification should be placed in a special category of exemption from the general rule that consent of an individual's injury provides no defence to the person who inflicts the injury if the conduct causes actual bodily harm let alone if it cause grievous bodily harm." And further on: "The appellant's argument envisages consent to surgical treatment provided a defence to the person performing the surgery whether or not the person is suitably qualified and whether or not there is a medical, including psychological justification or surgery." The Court continued: "Even if we were attracted by that argument which we are not, such a bold step is one that should only be taken by Parliament." 1. The Crown argues that even assuming the complainant provided fully informed consent (which is not conceded), consent in any form is not a defence to causing grievous bodily harm. The Crown note that in R v MB, which dealt directly with the issue of body modification procedures, the Court observed that protections provided to patients of qualified medical practitioners were not available to the defendant's customers or widely to the customers of those who set themselves up as body modifiers. The Court went on to observe in the context of that case that it was immaterial that the defendant in that case took some trouble to ensure a sterile environment when he operated or that his work in some respects was tidy and clean, consent as a defence could not turn on the quality of the work performed. 2. The Crown further distinguish the activities of the accused from cases involving a medical practitioner such as Rogers v Whitaker and Reeves . The Crown submits that medical procedures which can result in actual or grievous bodily harm are allowed provided lawful and informed consent is given provided the procedures are conducted for legitimate medical purposes by qualified persons and thereby in summary provide a social benefit. 3. The Crown further rely on the differentiation between medical procedures and unqualified procedures. Reference was made to the case of R v Richardson (2019) QB 444; where dental treatment was performed by a registered but suspended dental practitioner. The Court observed as follows, in summary: the general proposition is that the human body is inviolate but there are circumstances in which the law recognises where consent may operate to prevent conduct which would otherwise be classified as an assault from being so treated. 4. It is important when reference is made to cases that the context of the observation by courts are put in proper context. In Richardson's case, the court went on to observe that an assailant could be found not guilty of an assault if the victim consented to it but that exception to that principle existed where the public interest required. The Crown point to the facts in Richardson's case concerned the sentence proceedings for which Ms Richardson pleaded guilty . Although she was a qualified dentist, she was under suspension when the procedure was carried out. The Court observed on that plea of guilty: "If the allegations of assault occasioning actual bodily harm had been persisted in and proved in accordance with the committal statements there would have been little or no room for the defence of consent." 1. It is the defence position that any discussion about the role of consent in determining criminal liability for offences against the person must commence with the High Court decision in the Department of Health and Community Services and JW v SMB [1992] HCA 15, and this is referred to as Marion's case . Defence rely on a portion of the judgment in para 11 where the majority judgment statement as follows: "Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted therefore acceptable contact." And further on the Court said: "Consensual contact does not ordinarily result in assault in some instances consent is insufficient to make the application of force to another person lawful and in some and sometimes consent is not needed to make force lawful." Defence Submissions 1. Defence submit that the ratio in this case can "clearly be, extracted and extended to the use of the word "assault" as an umbrella term for all offences against the person involving the application of force" 2. Defence further submit that contrary to approach in some other jurisdictions (by which they mean England and Victoria), the High Court is Marion's case adopted the approach that consent generally operates as a ground for exculpation from criminal liability for assaults subject to exceptions. They argue that the Victorian decisions, in particular, had not considered Marion's case and therefore ought not be persuasive authority and that the English decisions should not be followed as being contrary to the reasoning in Marion's case. 3. Defence further observed that as far as they are aware the question of whether body modification procedure would be as they say, "criminalised", has not been considered by the New South Wales courts. I assume what they mean by this submission is that as far as they are aware a charge of assault causing some kind of injury in similar circumstances to this case has not been the subject of a court ruling as to whether consent operates as a defence. I am not aware of any either. 4. In particular, defence advocate submits that the English case of R v MB referred to above should not be followed in Australia for four primary reasons. These, say the defence are: (1) for the protection of the principle of bodily inviolably. Defence submit that the effect of Marion's case is at the greatest extent possible an adult person of sound mind or have the right to decide what happens to their body. It is submitted that this would include the right to body modification performed by whoever they wished to perform it. They further submit that the "paternalistic" approach in Brown's case does not place sufficient weight on this important principle and does not accord with the values of "a liberal society in Australia." 5. In considering this argument, I note there is no evidence offered to the Court by what is meant by the phrase, "the liberal values of Australia's society," and where those values ought extend to allow vulnerable people to consent in the circumstances of this case to having a dangerous procedure notwithstanding the fact that it is conceded by defence to be an objectively unwise procedure. 6. I observe the parliament legislates frequently to protect people from their own unwise activity from industrial safety laws, many traffic laws, (seatbelts for example), to almost all of the laws relating to the use and supply of illicit substances. I could probably mention a few health orders in the current climate. While many of these laws protect an individual from their own unwise behaviour, they also protect the wider community from having an overburdened health system as a result. 7. It is further submitted without further reference that: "Freedom of choice means nothing unless it includes the freedom to make choices which are regarded by others as unwise." 1. This I observe, is a slogan not a submission. In the context of case, this sentiment cannot be sustained, the accused undertook what was clearly a dangerous procedure in circumstances that were very clearly unhygienic and convinced the recipient that it was safe. 2. Marion's case was decided on an entirely different principle. That case concerns an application by the parents of a 14 year old child who was disabled in several ways to be able to formally consent on her behalf to a permanent sterilisation procedure. The application came before the High Court by way of a stated case from the Family Court. The High Court ultimately decided that while a child's parents can give consent on behalf of an intellectually disabled child for therapeutic purposes, they cannot consent to serious irreversible medical procedures such as sterilisation. 3. The quote referred to by defence advocate above in para 11 of that case is not in my view and does not support the proposition on which they rely. Read in the context of Marion's case it is simply an observation of the role of consent to physical contact in everyday life. There is no discussion in Marion's case whatsoever to the position before this Court save for the observation that consent for serious irreversible medical procedures such as sterilisation comes within the category of medical treatment to which a legally competent person can consent. The Court however noted that the consideration before them related to the powers of parents as guardians to consent to medical treatment and their comments are within that context. 4. The 2nd argument defence submit is that "criminalisation", as they say, of consensual body modification procedures would necessitate the criminalisation of modifiers but also of all the clients. This argument can be dealt with quickly. I observe that the case before me is not about criminalising body modification procedures but about whether the procedure carried out by the accused with the apparent consent of the complainant breached the law as it existed at the time the procedure occurred and as it exists now. 5. The question of whether the person who is the subject of the procedure also committed an offence is not a matter that was argued before me. It is submitted that it is not in the public interest to criminalise the clients of body modifiers. I do not know if this decision has anything to do with that. A more relevant consideration is whether it is in the public interest to suggest that a person such as the accused, who is unqualified in any medical sense, to perform the procedure that he did in the circumstances that he did. 6. The 3rd argument, the defence submit, is that the performance of a body modification procedure does not involve any aggression or intent to inflict pain or suffering. In this argument the defence advocate seeks to differentiate the situation where there is a consensual fight from a situation before this Court. They submit that in the case of Davis v Chief of Army [2011] ADFDAT 1, the expression of aggression was involved in an attempt to hurt one's opponent, therefore consent could not provide a defence in that context. Further they submit that the sadomasochistic sexual activities such as the subject of the Victorian decisions cited above in McIntosh and Stein involved the deliberate infliction of pain apparently for the purpose of heightened sexual pleasure. 7. I reject this argument. The fact that this accused took some care to use numbing spray and then lignocaine prior to cutting into the subject's abdomen with a scalpel and then removing a large quantity of her flesh does not diminish the pain that she suffered as soon as the lignocaine effects wore off. If the accused did not know that the lignocaine was going to wear off and thereafter pain would result, his ignorance is of no assistance to him. If he was aware that the lignocaine was going to wear off and pain thereafter result, then the argument that he did not intend to inflict pain or suffering cannot be sustained. 8. Finally the defence advocate argues as his most important submission, he says that "The blunt instrument of the Crimes Act ought not be used as a means of regulating the body modification industry and that to do so would be usurping the role of Parliament". 1. It is submitted that any regulations or Acts covering procedures carried out by the accused are covered by the Public Health Act 2010 which contains provisions with respect to skin penetration procedures. Pursuant to that Act skin penetration procedures are defined as; "Any procedure whether medical or not that involves skin penetration such as acupuncture, tattooing, ear piercing or hair removal or penetration of a mucus membrane". 1. It includes any procedure declared by the regulations to be a skin penetration procedure but does not include any procedure carried out by a registered health practitioner in the course of providing health service or any procedure declared by the regulations not to be a skin penetration procedure. The inclusion of the examples of acupuncture, tattooing and the like as examples of skin penetration procedures is an indication of the type of procedures covered by the Act. They all relate to procedures which use a fine needle or similar as a piercing instrument. 2. As at 2016 the regulations declared skin penetration procedures to include, colonic lavage, eyeball tattooing, tongue piercing and tongue tattooing. At some stage after 2016 eyeball tattooing was removed as a skin penetration procedure and therefore removed from cover via this Act. Para 95 of defence submissions state that skin penetration procedures so defined in s 5 of the Public Health Act, that I have just read out, is a broad definition that encompasses any procedure which involves the penetration of the skin. Defence submits that as such it captures most if not all body modification procedures and in particular the procedure the subject of count 2. 3. I observe that the procedures advertised by the accused and recorded in the agreed facts at the commencement of this decision such as tongue splitting and earlobe reconstruction are not included as examples in the regulation of the Act. I observe that the procedure, the subject of count 2, did not involve only skin penetration. Skin penetration may have occurred when the lignocaine was inserted by way of a needle and skin penetration may have occurred at the very commencement of the cutting procedure, however thereafter the procedure involved cutting through all of the layers of the dermis into the flesh of the complainant's abdomen. It involved the removal of flesh entirely from the body. The procedure encompassed the removal of a part of the complainant's abdomen approximately 20 centimetres long and 6 centimetres wide. To suggest that this procedure was a skin penetration procedure cannot be sustained. 4. In addition, I refer myself to exhibit E in the proceedings. This is the price list and/or aftercare document provided by the accused to customers. The exhibit was tendered by defence through Ms Spratt. The price list or aftercare document refers to a number of body piercing procedures including eyebrow, lip, tongue, nostril, septum et cetera. The price list then notes at the bottom "For any inquiries on prices for body modifications such as scarification, tongue splits et cetera please email…" and then the accused's email address. This is an obvious indication in a document the accused relied upon for his business that there was a difference between piercing and body modification procedures. 5. Taking the plain words of the Act and regulations into account it seems very clear that the Act and regulations apply to skin penetration as defined by skin piercing and body piercing and other procedures specifically referred to in the regulations and not to body part removal or any other so called body modification procedures. It is observed that the Public Health Act also sets out the various controls for premises in which skin penetration procedures are carried out. It was an investigation of these procedures that the witness, Kelly Spratt, investigated the Transition shop. 6. It is further submitted by defence that because of the Public Health Act customers of body modifiers in New South Wales have the benefit of a regulatory super structure albeit one less extensive than one that applies to medical practitioners. This argument can only be sustained if the removal of skin and flesh of a person's abdomen was, as in this case, can be described as a skin penetration procedure as meant in the Public Health Act. For reasons that I have given above this cannot be sustained. 7. Legislation covering other procedures is contained in the Private Health Facilities Act and Regulations. There is no suggestion that the Transition shop was registered under the Private Health Facilities Act 2007 which applies to licensing and regulation of facilities in which a medical practitioner, a dentist or other health practitioner, as may be described by the Regulations is authorised to perform procedures. It does not apply to a person with the accused's qualifications. Defence submit that it is relevant to my consideration the fact that the Private Health Facilities Act and Regulations did not apply to cosmetic surgery until 2018. They submit that as body modification is not or was not covered by the Private Health Facilities Act when this procedure occurred and cosmetic surgery was only included in 2018 is evidence they say of Parliament's intention to allow those procedures to be regulated under the Public Health Act rather than in any other way. 8. This is an unsustainable argument. Body modification as performed by the complainant in count 2 is not cosmetic surgery It is a procedure which causes grievous bodily harm. Parliament has already provided legislation about various events that cause bodily harm in the Crimes Act. The defence argument assumes that this procedure is permitted by the law. I disagree. In MB's case which related to the removal of parts of an ear it was noted that the defendant undertook a quasi-medical procedure for reward. The Court observed that the protection of the public extends beyond the risks of infection, bungled poor surgery or an inability to deal with the immediate complications. 9. The case of R v MB decision elaborates the position very clearly. That case was similar in that it concerned body modification procedures. The observations of the R v Brown, in the 1994 decision, were applied. The Court discussed at length the concept of public policy considerations invalidating consent in circumstances where serious assault or injury occurs. They observed that exceptions to the rule that consent cannot form a defence to an act which results in bodily harm may be considered where such activities produced a discernible social benefit. 10. The Court discussed the concept as it related to boxing and sporting activities. They suggested that some sporting activities and possibly even those with a religious hue might be considered as conferring social benefit, at least at the time they were recognised. An observation was noted in those circumstances, very limited as they were, that some degree of defence may be provided by consent provided, for example, that a rough sporting activity which resulted in harm may only avail itself of such a defence if the activity was played within the defined rules of the game. To follow this reasoning I observe that those who administer sporting events have become more aware of long-term consequences of injuries in sporting contests and, as they do, the rules of the sporting codes are changing and adjusting to balance between the consent to play sport and the consent to be hurt. It is not particularly relevant to this case. 11. The Court in R v MB observed that new exceptions to the rules that consent could not be a defence where actual bodily harm results should not be recognised on a case by case basis save perhaps where there is a close analogy to an existing exception to the general rule established in Brown's case. They further observed, correctly in my view, that there is no proper analogy between body modifications which involve the removal of parts of the body or mutilation on the one hand and tattooing, piercing or other body adornment. 12. It is the suggestion of defence that all of these procedures are similar. They are not. Exhibits 4 and 5 make that abundantly clear. Cases dealing with consent and dangerousness in a criminal sense are to be distinguished from cases involving a medical practitioner such as the case of Rogers v Whittaker and Reeves v The Queen In each of those cases the defendants were qualified medical practitioners. The Reeves case turned largely on the meaning of the term "informed consent". The law allows a patient to give lawful informed consent to a medical procedure that resulted in either a degree of harm provided the procedures are conducted for legitimate medical purposes by qualified persons. It is inherent in that understanding that there is some social benefit to the procedure being undertaken. This exception has been extended to other qualified health care professionals such as, for example, dentists. 13. The suggestion by defence that this accused should be entitled to a similar potential defence is not supported by the reasoning in R v MB above were the Court of Criminal Appeal observed what the defendant undertook for reward was a series of medical procedures performed for no medical reason. The Court continued: "The professional and regulatory superstructure which governs how doctors and other medical professionals practise is there to protect the public." 1. Later it was observed that in that case the defendant took some trouble to ensure a sterile environment when he operated and that his work was in some respects tidy and clean. This cannot even be relied on by this accused. There is evidence that he was neither. However, even as a general proposition consent as a defence could not turn on the quality of the work then performed. 2. The accused in this case undertook what was in effect a quasi-medical procedure. He did so in unhygienic circumstances and with little or no regard for any proper informed consent nor any or adequate after care. The complainant was subjected to the risk of infection, bungled or poor surgery, and an inability to deal with the immediate complications. 3. There was no public interest in the provision of the services provided by the accused. I respectfully concur with the observations of the Court of Appeal in MB's case that the personal autonomy of customers does not provide the defendant with the justification for removing body modification from the ambit of the law of assault. There is no good reason why body modification should be placed in a special category of exemption from the general rule that consent of an individual to injury provides no defence to the person who inflicted that injury if the violence causes actual bodily harm or more serious injury. 4. Consent is in the circumstances of this case not a defence. The accused intended harm. The harm amounted to grievous bodily harm. For the reasons therefore given above I therefore find the accused guilty of the charge that on 13 November 2016 he caused grievous bodily harm to BB with intent to cause grievous bodily harm as outlined in count 2. COUNT 3 1. The charge against the accused is that on 12 April 2017 at Toowoon Bay in the State of New South Wales, he did unlawfully kill CC. 2. Manslaughter is the unlawful killing of another human being. Although it is an offence of homicide, it is a less serious offence than murder because the Crown does not allege that the accused acted with the intention of killing the deceased. It is not the Crown case that the accused intended serious harm to be inflicted on the deceased let alone that she should die. The Crown alleges that the killing of the deceased was caused by acts and omissions of the accused resulting in her death. The Crown alleges that the acts and/or omissions of the accused created such a high risk of serious injury or death to her that it amounted to a criminal offence. 3. In order to prove manslaughter on this basis, the Crown must prove a number of elements beyond reasonable doubt. Unless I find each of these elements proved to that standard, the accused must be acquitted. 4. The elements which the Crown must prove are: 1. That CC died. This is not in dispute, exhibit 30 is a verification of death declaring that her death was pronounced on 12 April 2017; 2. The accused owed a legal duty of care to the deceased. The accused accepted that he owed a duty of care to the deceased as he accepts he played a causative part in the sequence of events which gave rise to the risk of injury, see para 128 of the outline of defence submissions. The nature of the duty of care he owed is in issue; 3. That the accused by his acts or omissions breached his duty of care towards the deceased. This is in issue; 4. The act or omission of the accused significantly or substantially caused the death of the deceased. This is in issue; and 5. The acts or omissions of the accused amounted to gross criminal negligence and merits criminal punishment for the offence of manslaughter because (1) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (2) involved such a high risk that death or really serious bodily harm would follow as a result of the omission. Both of these are in issue. 1. The manslaughter case involves in part ,an allegation that the accused inserted a silicone snowflake implant under the skin of the hand of the deceased, CC. Background 1. By way of agreed facts, or evidence that was not in dispute as background is as follows: 2. The deceased, CC, also known as [redacted] was born in 1986. She had one child, a daughter aged 8 years at the time of her death. She had medical issues, which will be referred to under a separate heading, for which she frequently sought medical treatment. 3. She first met the accused in mid-2014. She was very interested in body art and had a large number of tattoos and piercings. The accused performed at least nine procedures on CC including scarification, implants and reshaping of nipples. 4. The implant procedures involved the insertion of objects into incisions made with a scalpel through the subcutaneous tissue and then suturing the site. The objects that the deceased had implanted included a heart shape mould on her right hand at around one of her knuckles, a magnet inside her index finger and a crown shaped implant on her right shoulder. 5. Around 20 March 2017, the deceased had at least one silicone snowflake mould implanted under the skin on the top of her right hand by the accused. He made an incision on the side of her hand and used a special tool to separate skin from muscle. He then inserted at least one implant covering most of the top of the deceased's hand. 6. Over the subsequent week, there were few problems noted with this implant. Thereafter, the deceased complained of increasing pain and concern about the implant site. 7. On 10 April 2017, the deceased saw the accused at Transitions. He injected the deceased's hand with anaesthetic and reopened the implant wound. He repositioned the implant under the her skin and sutured the incision. The accused also made another incision in the deceased's thumb and inserted another implant under the skin. 8. CC's hand became painful and swollen and she visited the accused again on two occasions to address the infection. Less than two days after that visit, the deceased was found dead at her house. It is the Crown case that the cause of death was septicaemia resulting from infection in the deceased's hand. 9. Further evidence was placed before the Court. It is convenient to refer to that evidence in summary here as part of the timeline. Much of it does not appear to be in dispute. That evidence is as follows: 10. The deceased took a number of video recordings on her mobile phone of the procedures which took place on 10 April 2017. The deceased's mother later downloaded these images and videos and they were eventually provided to police. They became exhibit 14. The first visit by the deceased to the accused and Transitions on 10 April 2017 occurred at approximately 12 noon when the repositioning and another implant was inserted. Later in the day, the deceased returned to Transitions and again consulted the accused about her hand pain and bleeding. (evidence of Peter Bergin). 11. On 11 April at 6.33pm, a phone call was placed from the deceased to the accused's phone, which lasted 129 seconds. The content of that call is the subject of evidence from Alex Malloy. 12. On 12 April at approximately 1am, the deceased went to her balcony and spoke to a neighbour, Natalie Shackleton, for approximately ten minutes. Mrs Shackleton made observations about her general presentation and her hand. 13. On 12 April at approximately 6am, the deceased's daughter alerted the Shackletons to a problem with her mother. Mrs Shackleton and her daughter, Emily, went to the deceased's home to investigate. She noted that the deceased appeared lifeless but still warm. She telephoned 000 at 0624 hours and reported what she saw. Attempts were made to revive her by CC was formally pronounced dead at 11.20am that day. 14. An autopsy was conducted six days later and findings are discussed below. In order to consider evidence relating to the cause of death and the duty of care considerations, it is necessary to make findings relative to a timeline of events between when the implant was inserted and the deceased's death, her general medical condition prior to her death and the relationship between the accused and the deceased. Relevant Events Prior to Death 1. Evidence from witnesses who observed the deceased within the relevant timeframe included conversations with the deceased which are admitted pursuant to s 65 of the Evidence Act. I acknowledge that as the deceased was not available caution must be exercised in assessing these conversations as an accurate version of what the deceased's mindset may have been. Much of the evidence given by people involved in these conversations was not challenged and not able to be in realty, however, there is no reason to suspect that the conversations are not relayed accurately. 2. It is submitted by Mr Mantaj on behalf of the accused that due to the intake of various substances the deceased's memory of particular events may have been confused so that what she reported to witnesses might be inaccurate. He did not suggest where this may be relevant. I will keep this in mind, however, when assessing what is reported that she said but there are few, if any, instances where her reporter's conversation is not supported by other independent evidence. 3. In order to give some structure to a discussion of this evidence I will indicate now where this evidence will be relevant later to my conclusions. The evidence of witnesses who knew the deceased well prior to her death, that evidence is relevant to the presentation of the deceased shortly before it. These observations can be compared to the doctor's observations of her prior to her death, therefore is relevant to the issue of causation and also reflective of the information available to experts who gave cause of death opinions. The presentation of the deceased's hand prior to her death and on or about 10 April 2017 is relevant to the issues of causation and breach of duty of care. The deceased's view of her relationship and trust in the accused and the actions she took in furtherance of that trust is relevant to the issue of the duty of care owed by the accused to the deceased and whether that duty was breached. The time of visits of the deceased to the accused prior to her death and the reasons she gave for those visits is relevant to the duty of care owed by the accused to the deceased and whether there was a breach of that duty of care related to the cause of death. As a whole the events in the weeks and months prior to her death is relevant to the Crown's assertion that the accused owed the decreased a duty of care and the degree of care owed and whether his act and omissions were a breach of that duty. The level of care owed and the degree of breach is relevant to the degree of negligence. Witnesses Peta Bergen 1. Peta Bergen was a long-term friend of the deceased and aware of her body modification interest. She saw CC on Monday 10 April. Exhibit 24 contains an exchange of text messages between the deceased and Ms Bergen on that day. They had planned to meet so their children could play together. A text sent by the deceased indicated that she was getting something fixed with one of her implants and at 12.25pm on that day she indicated that she was on her way. 2. When she arrived at Ms Bergen's home she said that she had seen the accused at Transitions that morning. She was observed by Ms Bergen "as presenting at her normal happy self but complained of pain and that her implant was not feeling right". This witness saw the bandage on her hand which had blood seeping through. 3. The observation of Ms Bergen that the hand was bleeding and the deceased's complaint of pain supports an inference together with other evidence that the deceased was concerned about her hand being infected as at 10 April. The timing of the deceased's visits to the accused is supported by the exchange of text messages. 4. Later in the afternoon the deceased who was still at Ms Bergen's house told her that she was worried about how much her hand was bleeding and said she was going back to see the accused at Transitions, which she did. Ms Bergen looked after the deceased's daughter and reported that CC remained away for about two hours. On her return Ms Bergen observed a new "band aid" on the area and that the deceased's hand did not appear to be bleeding at that time. 5. The relevance of this evidence is the timing of the deceased's visits to the accused is also supported by exhibit 14 which shows a photo noted as IMG0164 taken on CC's iPhone at 12:43:54 on 10 April 2017. This photograph is part of the images and videos that were downloaded from her phone by her mother and given to police. Observations by Dr Bezic on this video are referred to below. Ms Bergen's evidence supports the degree of concern held by the deceased as to her wound by the repeated visits to the accused to have it attended to. The observation of Ms Bergen of the deceased's bleeding hand and her contemporaneous complaint of pain support and inference that the hand was or was becoming infected as at 10 April 2017. YC 1. YC is the brother of the deceased whom he called "[CC]". He was told by her that Brendan, the accused, did all of her body modifications. On 10 April 2017 at about 5pm ,presumably after she had returned home from Bergen's premises, he visited her at her home and stayed for a couple of hours. He observed an incision on the thumb side of her right hand and said she was squeezing out white yellow chunks of what he called "pus" and "black blood". 2. It is noted that this witness' evidence of what he personally saw is consistent with the observations of Dr Bezic as to what exhibit 14 depicts. Exhibit 14 was filmed a few hours prior. 3. YC told the court that CC told him the implant which he observed ,had broken through her skin and she had been in to get it "turned". She said that she had to go to get it moved because it was causing a problem. She told him that Brendan squeezed blood and pus out earlier and told her to continue. She said it was the worst pain she had ever had to deal with. However, apart from her hand she did not otherwise looked sick. He assessed his sister as having a high pain threshold. 4. On 11 April 2017 YC received a telephone call from his sister which concerned him as she told him that she thought "she had overdone it and felt exhausted". He was so concerned that he tried to meet her before she went to her neurologist's appointment at about, but when he got to the medical centre she had already gone in. He spoke to Natalie Shackleton who was with her and was reassured that she was okay. 5. It is observed that both Natalie Shackleton and YC would have been comforted by the fact that the deceased was seeing a doctor. Neither was to know that the deceased was determinedly reluctant to complain to a doctor about" the worst pain she had ever experienced" nor that the doctor may be concentrating on other issues. 6. The evidence of this witness, YC, is relevant to the state of infection of the hand and the deceased's level of concern about it as at 5pm on 10 April. It is also relevant to the advice given to the deceased by the accused on how to treat the sore hand. The demonstration by the deceased squeezing blood and pus out, with her contemporaneous statement to her brother that this is what "Brendan told her to do" is compelling evidence that this is the advice she received and that this is the advice she followed. Emily Shackleton 1. Emily Shackleton was a next door neighbour, daughter of Natalie and Wayne Shackelton and a friend of the deceased. The Shackleton family and the deceased were close friends. They saw each other daily and dined together often. Emily Shackleton knew of CC's frequent migraines and body modification interest. The deceased told Emily all of her body modifications were undertaken by the accused. She said that she did not always show her mother the modifications and she thought she disapproved. 2. Emily saw the implant to the deceased's hand shaped like a snowflake. She said that the deceased was happy with it when it was first done, however about a week later, she said it was painful. At that time this witness observed the hand to be red and swollen. She was told that the implant had been repositioned and an additional implant inserted 10 April 2017 after which she observed that the hand continued to be swollen, infected and very painful. 3. This witness encouraged the deceased to go to the doctor but was aware that she did not. In describing the pain then experienced by the deceased, Emily Shackleton explained that the deceased had a practice of helping the family roll newspapers twice a week and from the time implant was inserted she said her hand was too sore to do so. 4. On the morning of 12 April, she was alerted to a problem by the child, Ava, crying at 6am. She and her mother took control of the situation and called 000. Later at 7.35am, she contacted the accused as it was the last dialled number on CC's phone, (exhibit 41). She said that when she told him CC had passed he appeared not to believe it. The conversation ended. 5. The relevance of this witness's evidence is in relation to the deceased's trust in the accused who did all of her body modifications. Her evidence is also relevant to the presentation of the deceased's hand on 10 April and the deceased's contemporaneous complaint of significant pain. Further, the evidence is relevant to an observation that the deceased was reluctant to take medical advice for the implant problem. Wayne Shackleton 1. Wayne Shackleton, next door neighbour and friend of the deceased. 2. On 10 April 2017, he saw her at his house. He observed what he described as a "hole in her hand" between the thumb and forefinger on the back of her hand. He observed it looked quite red and scabby and looked infected. He was challenged on not recording this observation when initially giving a statement to police and advised the Court that he was not asked about this observation when he gave his statement. He said that he and his family had not discussed the case as they were told not to. There is no evidence of collusion between the members of the Shackleton family and I accept his observation and the explanation for not advising police about it prior. In any event, his observation is consistent with many other observations and exhibits of the deceased's hand at the relevant time. 3. Mr Shackleton gave other evidence about a previous procedure he had observed. He said that prior to the opening of Transitions at Erina Fair he went with CC to Brendan's house near Newcastle and saw a procedure undertaken when an implant was inserted into her arm. The operation was performed in the master bedroom. Mr Shackleton was permitted to go into the bedroom and watch. He observed a massage table and a tray with instruments on it. In the procedure, Brendan gave CC an injection, did a little cut and put in what he said was "a little rubber thing". Brendan's girlfriend and child were in the house. He observed little by way of hygiene precautions. 4. Mr Shackleton's evidence is relevant to observation of the deceased's hand and of the accused's hygiene practices on a previous occasion, therefore, to a tendency consideration. Natalie Shackleton 1. Natalie Shackleton, a next door neighbour and friend of the deceased, She called the deceased CC, was aware of the body modifications performed on her and was told they were performed by the accused. She did not really approve. The deceased and this witness saw each other frequently and had a practice of dining together most evenings. 2. She saw the implant on CC's hand she said about two weeks before her death, it did not look infected at that time. About a week before CC died, the witness saw her hand again and noticed a scab on the back of it, below the index and middle fingers. She described it as a green round scab and observed that the rest of the hand was red. This witness was concerned enough to suggest that the deceased go to a doctor and seek antibiotics. She was shown a picture which was taken on 8 April, exhibit 23, but said that on the day she saw the scab it "looked worse than that". Other witnesses have commented on the lack of colour quality of some of those exhibits. 3. It is significant that this witness saw the hand over several weeks and was able to differentiate between the earlier presentation when she perceived it to be not infected and the later presentation when she said, "It did look infected". In the circumstances of her observations, it is reliable evidence from a non-medical person but nevertheless an observation of an adult with life experience. These observations and her experience should not be diminished by simply classifying her as a lay person. 4. Mrs Shackleton recalled seeing the deceased on the evening of 10 April when CC said that she had been to see Brendan, "had cut open her hand and moved the implant "and added another modification to her thumb. Later that evening the deceased showed Mrs Shackleton the video recordings of what the accused had done to fix her hand . She complained that her hand was very sore. The deceased also reported that Brendan injected her hand with anaesthetic and it was very painful. CC reported that when he opened her hand, "blood and pus came out the side". The deceased described it, as a "massive blotch of blood and goo". This description is consistent with the video taken of that procedure, exhibit 14. The observations of Dr Bezic below, are consistent with what the deceased told Mrs Shackleton she saw. CC said, "It was very sore". The witness asked if she got antibiotics and was told that she had not. 5. The next day 11 April, Mrs Shackleton observed CC to be extremely tired and "looked exhausted". CC told her that she had not slept and that her hand was sore. Mrs Shackleton knew that CC was going to a neurologist's appointment that day at 2.30 and was so concerned about her falling asleep while driving the car that she accompanied her as a passenger. During the trip, she noticed small specs of blood on the deceased's shirt and observed the blood to be coming from the hand wound. CC used tissues to clean it up. After the visit to the neurologist, the deceased slept on Mrs Shackleton's lounge for some time before dinner. 6. Again, I find the observations of this witness, who knew the deceased very well, probative of the deceased's very unwell presentation during this afternoon and evening. Mrs Shackleton overheard CC speak to her mother on the phone and noticed that the deceased's speech was slurred and that she appeared confused. The witness assessed her as exhausted. After dinner that evening, the deceased returned to her home at 7.30pm and indicated she was going to sleep. 7. Later on at about 1am on 12 April, they met on their adjoining balconies, which was a usual practice. The balconies were about a metre and a half apart. Their practice was to stand or sit and talk which they did for about ten minutes that evening. This witness described CC's presentation as better than it had been previously in the evening and she understood that she had slept. She did not appear to be as exhausted as before and her speech was not as slurred, she reported. They spoke for about ten minutes. The deceased still complained of a sore hand and held it up to show Natalie who observed it to be more swollen than before, describing it as three times the size of her other hand. She said that she was able to see it clearly as they both moved to the railings and CC held her hand up under the spotlight. She complained of the pain and said she could not wait to see Brendan, referencing a 9am appointment the next morning. 8. Such was Natalie Shackleton's concern for her friend's welfare at that stage, she suggested that she go to hospital immediately and offered to assist with childcare. However, the deceased refused saying that her hand was too sore to drive to the hospital. Mrs Shackleton does not drive, herself. The witness was very worried about the deceased's welfare but commented that she could not make her go to hospital. 9. CC said she would take painkillers and wait till the morning to see the accused Brendan. 10. The observation and the level of concern Mrs Shackleton had for the deceased at 1am on the day of her death is an indication that even though her presentation was better than before her sleep that evening the deceased, on Mrs Shackleton's observation, still presented as someone who ought to go to hospital as a matter of some urgency. This is significant evidence. 11. Early the next day this witness and her daughter discovered CC's body. Natalie Shackleton's evidence is significant. It is relevant to the issue of the relationship between the accused and the deceased and the apparent trust that the deceased had in the accused's ability. It is evidence of the acceptance by the deceased of advice given by the accused and her reluctance to take any steps that did not involve the accused treating it. The evidence further is relevant to the deceased's apparent reluctance to consult medical practitioners for the issue of an implant that was causing the problems, although it is obvious she sought a great deal of medical assistance for other ailments. Most importantly the evidence is relevant to the very unwell and confused presentation of the deceased on 10th but more particularly 11 April, both before and after her visits to doctors' surgeries. XC 1. XC is the mother of the deceased. She detailed the long term difficulties her daughter had with headaches and an obsessive compulsive disorder. She said that her daughter's anxiety had increased after the birth of her child. She described a close and loving relationship with her daughter. She was aware of her daughter's interest in body modification procedures, was not altogether supportive of the procedures undertaken by her but was careful not to express judgment. 2. In relation to the snowflake implant she said she saw a bandage on her daughter's hand on 22 March which was the day the deceased had a lumbar puncture procedure as arranged by Professor Sturm. Her daughter told her that she had a sprain but a week later showed her the implant and told her not to worry. XC said her daughter did not always tell of the procedures she undertook until they were healed. 3. On 9 April 2017 at about 4pm XC observed a yellow and green colouring in an incision on the side of her daughter's right hand as her daughter's sleeve rode up while she was reaching for something. She told her daughter that it looked infected. Her daughter replied "Don't worry, I'm on antibiotics" and that she was going to see Brendan the next day. XC did not observe stitches on the incision. She was able to view the hand for six to eight seconds. Otherwise her daughter appeared in good spirits. 4. The next day ,10 April, XC spoke to her daughter and was told that she had been to see Brendan in the morning and afternoon and that he had re-positioned the snowflake and cleaned it up. She said she had to go back and see him in the afternoon as her hand would not stop bleeding and that she had "never seen anything like it", in reference to the amount of blood. This evidence is supported by the evidence of Ms Bergen, Mrs Shackleton and YC and the exhibits referenced above. 5. XC and her daughter spoke again on 11 April at about 6.30pm at which time she said her daughter sounded not like herself and sounded "away with the fairies" and spoke in a "childlike" voice. Her daughter complained of being very tired and said her hand was really sore. She told her mother she was going to bed soon. This observation is consistent with the evidence of Mrs Shackleton. 6. On the topic of her daughter's relationship with the accused in general XC said that CC, her daughter, talked about Brendan, the accused, often after she met him in 2014. CC told her that she trusted Brendan because she knew he travelled the world doing these procedures. She told her mother that she knew it, (body modification procedures) was illegal. The first conversation she had of this nature was in about 2015. When asked directly about the trust her daughter had in the accused she said: T p 433, 23/09/ 2021 "She said she trusted Brendan because she knew he travelled the world doing these procedures. He had done many body modifications" and a little further on "She had all faith in him". Having said that she said she also knew it was illegal and a little further on "[CC] said you don't understand mum, she said to me Brendan is a god". She said "And a lot of people think so" and she said "He's the only one I would ever let do anything like this to me". 1. Further on in her evidence XC said: "One conversation, my first memory of a conversation was July 2015. My husband and I had not long been married and Brendan Russell had done the first scarification on [CC]'s right arm and I said to her I did not understand why she had this done. She explained to me, she said it's something I really want to do and we did not discuss that particular one at length. After a few different procedures that [CC] had she said to me oh look mum Brendan did this with a heart on the middle finger of her right hand or the crown she had on her right shoulder. I did not comment a lot on those but I didn't like them. Six months before [CC] died she did tell me of a procedure that Brendan Russell had done to her the six months previous to that and it was to tattoo love hearts on both of her nipples. I was very shocked. [CC] explained that Brendan said to her it has never been done before in the world before and if you let me do it for you I'll do it for you at a cheaper rate and [CC] agreed". 1. In relation to her conversations with her daughter about the deceased's knowledge that the accused was not a doctor and her trust in him further she said (T p 445 in cross-examination by Mr Mantaj): "Q. [XC] you said in your evidence a little earlier today that one of the things that [CC] told you about Mr Russell and the work he was performing on her was that she was aware - well to her perception it was illegal, that's correct? A. Yes. Q. And do you remember when she made that comment to you was it once or was it several times? A. I remember exactly when it was 2016 in April … (irrelevant evidence) … Q. … I think it was around 2016 [CC] had been to the Expo there? A. Yes, [CC] told me about the procedure that was performed at the Expo. There was a closed group of people. [CC] told me that Brendan Russell said 'if anybody finds out about what I'm doing or what I've done here today I'll go to gaol'. Q. That's not about whether or not he was a doctor, that's what I'm asking you? A. And then yes then [CC] said to me because Brendan's not a doctor". 1. This witness was cross-examined on her recollections and it was put to her that her evidence was coloured as a result of her belief that the accused was responsible for her daughter's death. 2. I have observed XC's evidence carefully. While I do not suggest that a witness's demeanour is a matter of overwhelming significance I observed her as being calm and thoughtful in her evidence and did not, even when pressed, seek to express a personal opinion about her daughter's predicament or the accused. She focused on trying to recall facts and discussions in an accurate way. 3. She was able to anchor timelines to other personal events in her life. She said that she did not have an opinion about the cause of her daughter's death until after the coroner's report was released. She denied that she had been swayed in her recollection by discussion with others and said that she had not discussed the contents of the coroner's report with anybody. There is no evidence of collusion between this witness and others nor that she had discussed the contents of the report although it is possible that she made a complaint to the council environmental officer. 4. The importance and relevance of XC's evidence is in multiple areas. She speaks of the relationship between the accused and the deceased which from the deceased's point of view was a very trusting relationship because of the deceased's belief in the accused's ability. XC's evidence is also relevant to the deceased's knowledge that the accused was not a doctor and her belief that because he was not a doctor a particular procedure, not necessarily this one, was illegal. The evidence is also relevant to the presentation of the deceased and the concern that both she and Mrs Shackleton had about CC's hand on 9 April and the indication that the deceased was going to place her trust in the accused to fix the problem the next day. 5. XC's evidence is further probative to the deceased's presentation on the telephone on 11 April. It must be remembered that she knew her daughter very well and was therefore in a position to assess whether her voice presentation was normal or not. Her observations as to the presentation of her daughter the night before her death support the evidence of Mrs Natalie Shackleton. 6. Lawrence O'Neill was a barber at Transitions, before he went to Queensland in 2016. He maintained contact with the deceased via message and phone. There are significant areas of this witness' evidence which were objected to and the objections maintained, referred to in annexure A of the defence outline of submissions. The objection on p 12 relates to the witness' business plans and I agree this is not relevant to my considerations and the objection is sustained. Similarly the objections contained in pp 13, 14, 15, 16 and 17 of the objection schedule which relate to evidence about which Mr O'Neill did not have direct knowledge and is largely evidence relating to his understanding of procedures formed by other people, the objection is sustained. The evidence referred to in that schedule will be disregarded. 7. Finally there is an objection on p 18 of the schedule that was apparently not the subject of a s 67 notice. If that part of the evidence was not part of the notice, and I have no indication that it was, it will not form part of the evidence before the Court. This objection is therefore also sustained. 8. Otherwise the evidence of Mr O'Neill was that he knew the deceased and saw her frequently when she visited the shop a couple of times a week in 2016. He observed that she had extensive work done by the accused including nipple scarification, implanting to shoulder and many piercings. Mr O'Neill said that a group of customers including the deceased were referred to as the "mod squad". They were competitive in body modifications. This is relevant by way of background evidence about the deceased. 9. He said that CC, the deceased, and he had many conversations. She told him that she was happy with the hand implant, the subject of this consideration, in the first couple of days but she told him it was more swollen than normal. Mr O'Neill said he told her to go to a doctor and she reported that she went to see Brendan. She reported that Brendan told her to ice it. 10. A couple of days later the deceased reported to Mr O'Neill that Brendan went in and opened it up, that he flushed it out with saline and sewed it up again. She reported that she saw him again afterwards. This is consistent with visits by the deceased to the accused on 10 April. It is the only evidence suggesting the accused washed the wound out with saline. However according to the evidence of Dr Bezic if this wash out did occur it would not have assisted and may have helped spread the infection. 11. The night before her death Mr O'Neill was in contact with CC, the deceased, via text or call. She told him her migraines were really bad and that she felt infection running through her body. She said she felt terrible. He again suggested she see a doctor. His evidence was that he had the impression from many discussions with the deceased that she was trusting of Brendan. She never said bad things about him and he did, she would always defend him or back him up. 12. After CC died Brendan told Mr O'Neill, he said that her neighbours made her have a drug overdose and that they had given her some kind of drugs for migraines and possible pain. Mr O'Neill said that Brendan told him she seemed lucid when she came to see him for her hand. 13. In relation to aftercare and infection control, it is observed that this witness worked at the barber shop section of Transitions for some time and was in a position to observe general practices. Mr O'Neill reported that the accused's typical aftercare response would be to inspect, give advice about camomile tea bags and soaking. He denied that he had ever heard him advise a client to get medical attention as the area looked infected. However this witness personally trusted the accused to insert a dermal implant on his own ear. He said that he trusted the accused's ability to do such a small, he said, implant. 14. Mr O'Neill agreed that he blamed the accused for the death of CC for whom he cared deeply. This observation ought and will be taken into account when assessing his evidence. However his evidence in relation to the tendency issue of failure to provide adequate aftercare is amply corroborated by a number of other witnesses. His evidence of what he was told by the deceased about her trust in the accused and her concern about infection in her hand is corroborated by the evidence of Natalie Shackleton, XC, YC and Peta Bergin. 15. The deceased reporting feeling that infection was running through her body is interesting in assessing later expert testimony. I did not form the opinion that Mr O'Neill's belief that the accused caused his friend's death coloured his evidence. Mr O'Neill agreed that he did talk to Alex Malloy before he made a police statement but did not discuss what the contents of her or his statement would be. This evidence was not challenged. David Olteanu 1. David Olteanu's evidence is referred to above in a discussion of tendency evidence. 2. In addition and relevant to count 3 he said that he knew both the accused and the deceased. He recalled the deceased, CC, one of a large contingent of people who would hang out with Brendan and Alex and was always there getting stuff done. The agreed facts for count 3 related below detailed the procedures undertaken. 3. Mr Olteanu's evidence was that he recalled one day less than a week before CC died ,she came into Transitions at the end of the day and asked Brendan to take a look at her hand which she said was sore. The witness observed her to appear worried. He saw the deceased in the tattoo room with her hand on the armrest. Brendan, he said, was working on the hand but the witness only stayed observing for three to five minutes. During that time he observed the hand cut open and he heard Brendan tell her to take some pain killers and let it settle down. He described the deceased's hand as looking "pretty raw". He heard Brendan say it was not anything major. He heard the accused say to her on this occasion," if it gets worse you may need to see a doctor and get some antibiotics but don't tell them who did this…. :If you really need antibiotics then get some but painkillers should be okay suggesting ibuprofen, some Nurofen and go home" –(T p 320 20/09/2021). Later on he told her to take painkillers and keep it clean. 4. On the remaining evidence presented in relation to count 3 this observation can be timed to have occurred on 10 April 2017. 5. This witness commented on the accused's general practice that he observed over time. In addition to the evidence relevant to count 3 that the accused recommended the use of painkiller and not to tell a doctor who did the procedure, the evidence is also relevant to the breach of duty of care considerations. 6. In the morning that he, Brendan and Alex heard about CC's death, . Brendan told this witness that he had spoken to the deceased on numerous times the night before and had received numerous phone calls from her . he reported to this witness that she sounded drunk or wasted. Brendan reported that she said her hand was sore. This evidence is corroborative of Alex Malloy's version of the conversation as she overheard it on the evening on 11 April. 7. In cross-examination when asked about the conversation with the accused on 12 April, above, the witness said that it was the accused's usual practice to say to any client who had problems "come and see me before you go to a doctor" –(T20/09/202 p 322, line 8 to 11). 8. This witness's evidence is directly relevant to his observations of the accused's treatment of the deceased's hand on 10 April 2017, his observation of the presentation of that hand and the degree of concern that the deceased had. He gives direct evidence of the accused saying to the deceased on that occasion that she may need to see a doctor but not to tell anybody who did the procedure. It is further direct evidence of the accused's advice to the deceased to take pain killers and let it settle down as the deceased reported to Ms Shackleton she was told by the accused. 9. This is important direct evidence relating to the relationship that the accused had with the deceased and the advice that he gave her notwithstanding the obvious infection in her hand and the pain that she was suffering. This evidence is relevant to the duty of care owed and the degree of breach of that duty. 10. This witness said that his evidence was not coloured by the fact that the accused was his business rival. It is a consideration in assessing the honesty of his evidence however much of it is supported by the evidence of others. For example, evidence of the presentation of the deceased on or about 10 April, the presentation of her hand and her complaint of pain and concern about her hand is supported by all of the lay witnesses referred to above. 11. The evidence of the deceased reluctance to visit a doctor being the result of a perceived exaltation from the accused is supported by the evidence of XC, John Brady and Dr Willemse below. This witness's evidence is directly relevant to count 3. 12. I accept that the accused told the victim not to tell a doctor and if she had to see one not to tell who did the procedure, thus, indirectly, I find, deterring her from seeking medical attention. Other tendency evidence further supports this finding. 13. In addition this is direct evidence of on this occasion, that is, 10 April that the accused undertook a procedure in generally unhygienic surroundings in the tattoo room, notwithstanding the worrying presentation of the deceased's hand at that time. Mr Olteanu's evidence is of significant probative value. John Brady 1. John Brady's evidence is referred to above ,largely relating to tendency evidence issues 2. Specifically relevant to count 3, he told the Court that after CC died Brendan told him that she died of a prescription overdose and that he was the last person to speak to her . This witness reported that Brendan said that he told her to take more pills and go to bed. This evidence supports the evidence of Olteanu and Malloy as to the advice the accused gave the deceased. Bryce Gardner 1. Bryce Gardner is a body piercer from the Central Coast area. He came to know the deceased who told him about body modifications performed by Brendan. Mr Gardner had concern about the nature of the procedures and told the deceased of those concerns. His evidence was that she expressed confidence in Brendon's work. She cut all ties with him after he expressed concerns about a year before she died. 2. This witness was challenged that his evidence was professional jealousy rather than real concern about a procedure, however, he denied that and no evidence was presented or suggested that his business ,which was largely piercing, suffered due to the accused's business activity. Alex Malloy 1. Alex Malloy whose evidence relative to background, tendency or detail in relation to count 2 as noted above, also gave specific evidence in relation to the circumstances surrounding the death in count 3. 2. This witness was in partnership in the business, Transitions, with the accused at the relevant time and also in a personal relationship with him. Caution regarding an assessment of her evidence has been referred to above and will be remembered when assessing her evidence in relation to count 3. 3. In addition, Ms Malloy was of the view that the accused who she believed was texting other women behind her back was concerned that he was perhaps also in contact with the deceased in the same way, thus increasing the need for caution in assessing her evidence. 4. In relation to count 3 specifically this witness recalled CC who she said was body piercer at another piercing shop in Erina Fair. Malloy said she was aware that the deceased wanted to work for the accused and was frequently at their shop. Malloy was of the opinion that the accused encouraged her in this ambition. 5. Malloy's evidence was that CC had many procedures, some of which Malloy posted on the accused's Instagram. The fact that the deceased had many procedures performed by the accused is not an issue and part of the agreed facts. 6. There was no record of the deceased filling out any forms of consent for any procedure. In cross-examination she agreed that she was the person responsible in the business for paperwork such as consent forms. The issue of consent forms is discussed above. 7. This witness recalled the deceased coming into the shop in about March 2017, she thought complaining about an implant that was infected. This witness said she inspected the hand and observed that it was, in her words "opening up a bit". She was aware that Brendan fixed it up but did not see what was done. 8. She said that later that evening she and Brendan were in the car together and she heard CC telephone Brendan. She could hear the call as it was via a Bluetooth connection in the car. She said that CC sounded very groggy and said that "a stitch was coming out." (T p 347 on 21/09/2021). Her evidence was Brendan replied, "it's not infected, it's just irritated and just to come and see him the next day and he'll fix it up." She continued "CC was apologetic". Brendan, said (T p 347 line 47) "Just take some Advil and it will be fine, come and see me in the morning" and CC was like, "I got a new medication for my migraines, maybe I should just take that". Brendan said, "Yeah. Like yeah just take that. Rest up, [CC], like I know what I'm doing" … "and then it was like they hung up." 9. This conversation was the night before the deceased died and on her telephone records placed this call at approximately 6.33pm on 11 April 2017 – (exhibit 41). 10. Alex recalled that they received a phone call the next morning from a neighbour saying that CC had passed away. At T p 350 ln .15 Alex was asked if she discussed with Brendan this news and she replied, "Yeah, we discussed it a fair bit and he was really worried and he was saying 'what if it comes out, what if it comes out that's something I did' and he was really panicked about it." 1. Notwithstanding the cautions noted above regarding an acceptance of Ms Malloy's evidence much of it is supported by the evidence of Mr Brady and Mr Olteanu concerning the conversations that the deceased and the accused had on the evening on 11 April 2017 as reported by the accused to them. Ms Shackleton also confirms that the deceased told her she had an appointment to see the accused that morning. 2. Evidence of this witness that the accused told the deceased that her hand was not infected on 11 April when he had observed a probable infection the day before is significant evidence. Observations in the tendency evidence above that he had a tendency to fail to give adequate after care and advice and to deter his clients from seeking medical attention support it. However, there is in reality ample direct evidence even without that tendency consideration. Consciousness of Guilt 1. Counsel have raised for consideration whether the accused displayed a consciousness of guilt during the course of this conversation with Ms Malloy expressing concern saying, "What if it comes out that it was something I did?" The Crown relies on this as behaviour indicating a a consciousness of guilt, presumably in relation to the cause of death . . In some cases post offence conduct may prove the accused committed the act in question but say nothing about the accused's state of mind. In the context of these proceedings the concern expressed to Ms Malloy is not in my view evidence of consciousness of guilt and potentially has alternative explanations. In addition, even though the Crown does not rely on the accused telling Mr Brady that the deceased died of an overdose I formally observe that it is probably irrelevant. There are many reasons why a person may make statements that are not necessarily rational and there may be explanations for this conversation apart from the obvious consciousness of guilt. It is therefore not relevant to my considerations. I have mentioned it at this stage in order to avoid any further complications about that issue. Medical Background of Deceased 1. A matter of some importance is the medical background of the deceased and the events on 11 April 2017. The deceased's medical background is relevant to explain the circumstances surrounding the lead up to her death and her background with the accused. The observations of the doctors are also relevant to considerations of whether the deceased was showing signs of infection on 10 April 2017 and her presentation in general. She saw two doctors on the day before she died and their observations were referred to by a number of the expert witnesses when commenting on the issue of the cause of death. 2. It is convenient to refer to both issues and a discussion of the doctors' evidence at this stage. The deceased suffered from a number of medical conditions and usually saw Dr Willemse at the Mingara Medical Centre, Tumbi Umbi. He had been her treating practitioner from 2012. Her medical concerns included persistent daily migraines and associated anxiety. Medication prescribed and commented on by Dr Willemse included: 1. Clomipranine hydrochloride 25 ml tablets and tricyclic antidepressants (TCA.). He commented that this is used for the treatment of obsessive compulsive disorder, panic disorder, major depressive disorder and chronic pain. In CC's case it was used for OCD as well as an adjunct for pain. 2. Endone 5 ml tablets. It is an opioid analgesic used for pain. CC was insistent that this was the only one of the medications to effectively manage her severe headaches reported Dr Willemse. 3. Imigran 20 mls nasal spray. The nasal spray was used for acute migraine attacks. 4. Imovane 7.5 ml tablets. Dr Willemse commented that these are a sedative hypnotic to aid with sleep disturbance and/or to improve sleep quality. 5. Norspan 20, 20 ml transdermal patch which was prescribed weekly. This was an opioid pain patch used to manage chronic pain. Dr Willemse observed that in CC's case this was used as a drastic measure to alleviate severe headaches. 6. Symbicort Rapihaler, a 200/6 metered dose inhaler was used as an asthma preventer. 7. Verapamil hydrochloride tablets. These were used as blood pressure medication used as prophylaxis for cluster headaches. 1. Dr Willemse was aware of her the deceased's interest in body art and ex. pressed a concern about it to her. His view was that she was well aware of infection control . In relation to his conversations with her about the body art process and the accused. The following evidence was given at transcript pp 328 and 329 on 21 September. Dr Willemse in answer to a question said: "I did express concern. I felt it was a fine line between judging her choices and expressing concerns on medical grounds and there were discussions about hygiene and safety mostly but she always maintained that hygiene was very well maintained and the procedures were very safe" and a little further on the question was asked: "Q. And do you recall anything she said to you about the person who was doing these procedures? A. She mentioned the person on a number of occasions and she said that he was world class, we were lucky to have him in the area and she held him in the highest esteem" and a little further later: "Q. Did you have any discussions with her about alerting a medical professional to signs of infection, was that something that was actually discussed? A. No, not to my recollection. Q. You say there not alerting a medical professional to signs of infection would have been a deliberate decision, what do you mean by that, Dr Willemse? A. What I meant was that in my opinion [CC] would have been well aware of signs of infection and if she made the decision not to act on signs of infection" - and there was an objection at this point and the objection was sustained. Evidence was then admitted in the following form: "Q. What do you base that belief on? A. The regard she held for the artist. She spoke of him in glowing terms and I believe she would have done what she could do to protect his reputation and protect him from any harm resulting in anything that had happened to her." 1. Dr Willemse said that the deceased did not identify who the body artist was. This lack of disclosure of identification notwithstanding the fact that the deceased was praising his methodology provides some support for the contention that the accused told customers not to tell doctors who did the procedures. The evidence was objected to as inadmissible. However, I propose to admit the evidence of the conversations. It is not direct evidence of the deceased's reason for not complaining but is part of the circumstantial evidence relating to her confidence and trust in the accused and of the deceased's own understanding of infection and hygiene. Medical records were produced by this witness which became exhibit 16. 2. The deceased's last appointment with the medical practice, with Dr Willemse's medical practice, was on the morning of 11 April at 11am with another practice doctor, Dr Vanderwalt, whose statement became exhibit 16. Dr Vanderwalt said that the deceased was "pretty much after a prescription", (T p 385). He said they briefly discussed pain management and he said that they had a discussion about her headache pain. He observed her to be distressed and noted she had thoughts about self-harm due, he understood, to her lack of sleep. The doctor commented that he believed he would have noticed if there was anything on her hand or elsewhere that was infected and would have taken appropriate action if she had mentioned fever or chills, however she raised no complaints or issues other than her inability to sleep. 3. Dr Van der Walt interpreted this to relate to her headaches. He did not conduct a physical examination in any sense. He did not notice if she had a bandage on her hand or if she was wearing long-sleeve clothes. He was not aware of any new implants. He did not discuss infections. He made no observations of her physical presentation other than that she was distressed. He observed, transcript p 375: "As I say, it has been difficult when you work in a big practice because you sort of slot in on the day but being the amount of medication she was on, I did have a talk about it. I did have a talk to her about - you know - yes I'm here to give you your prescription but also in the bigger context what will the plan be, and you know we can't just keep on sort of giving you this, so we did sort of briefly, although I'm not her normal doctor, touch on ongoing issues, hence my comment of the possible need for some physiotherapy and some pain clinic referral. Also, I took into consideration that she was due to see the specialist that afternoon. Yeah. Q. Just something that in paragraph 7, if you go to the bottom of that and we're talking about the statement and if we go 5 lines up do you see that comments 'suicidal thoughts', do you see that? A. I think it's, you know, the overall feeling I got from [CC], that she was a desperate individual. She was very desperate that day and I clearly remember that so in other words you can imagine there's a 10 minute slot where you take a snapshot of that person's life and in she comes, so I think that she was, you know, to the extent where she expressed a lot of distress and her big distress was her lack of sleep". 1. And a little further on in his evidence, he continued, "I think she pretty much said that if we do not do something about her pain her life was just not worth living really and you know, the extent of that". 2. My observations on this brief conversation are referred to below, but before that I will refer to a further doctor that she saw that day. She sought medical advice from her neurologist Professor Sturm who had over time conducted a number of investigative tests on her, referred to in exhibit 21. 3. At 2.30pm on 11 April the deceased she saw prof Sturm to receive results of a previously undertaken test, a lumbar puncture which was undertaken on 22 March. Dr Sturm did not recall making any particular observation of the deceased's right hand, nor did he record any observation of her physical presentation at the time of review. 4. This is surprising considering Mrs Shackleton thought of her as presenting as very ill and falling asleep within that time, so much so that Mrs Shackleton accompanied her to that appointment with Dr Sturm. It may be that the deceased made an effort to hide her pain and poor presentation for reasons of her own, considering according to the evidence of Dr Sturm it was a 10 to 15 minute appointment. This would be possible even for a very ill person. It cannot be said that Professor Sturm was proactive in seeking information from her. From his point of view, according to his evidence, the purpose of the consultation was for him to report the results of a lumbar puncture test to her and to provide a plan for future headache pain management. 5. This doctor was very concerned about her headache pain management but was unaware of any other reason for any presentation that day, because she did not raise it and he did not ask. As I noted the consultation lasted for ten to 15 minutes and his report is marked exhibit 21. He reported that when he saw her on 11 April she complained of poor sleep and he prescribed her Lyrica for her headaches and Mirtazapine to assist with sleep. He recommended ceasing taking Endone as he explained it may have been causing rebound headaches. with the quantity she was taking. He said he had recommended this course of action previously and the results, he thought, had been good for a few months. 6. In summary Dr Sturm reported her complaint of distress and low mood and poor sleep. He understood her frustration was with her daily headaches. He made no observation about her hand and recalled she did not appear to him to be systematically unwell, flushed or sweaty. He made no observations of her physical presentation in his notes at all. A Discussion of the Medical Observations 1. Dr Van der Walt was aware that the deceased had an appointment with her neurologist later today. There is no doubt in my mind that by 11 April the deceased was very unwell and her hand was presenting with all the signs of being infected, as observed by everyone who so her between 9th and 11 April. 2. Neither Dr Van der Walt nor Dr Sturm asked if there was any other cause of pain other than her headaches. It is possible she would not have volunteered the infected hand if either had done so. Both doctors assumed that her distressed presentation was all to do with lack of sleep. In those circumstances the lack of examination or physical observation of any sort is disappointing, but perhaps not surprising given the nature of the general practice that Dr Van der Walt said he was operating under and the purpose of that Dr Sturm believed his consultation was for. My observation is that Dr Van der Walt's consultation was brief and perfunctory which the doctor perceived was only about the deceased getting a repeat prescription. He concentrated a 10 minute consultation only on her drug use without enquiring any further as to her health. 3. No complaint or physical problems or observations relating to same were made outside this area. He noted her distressed state but failed to undertake a medical examination. The lack of complaint by the deceased at a time when she was, on the evidence of all non-medical witnesses, in significant pain and feeling very unwell and exhausted is further evidence of her reluctance to share the cause of her pain and as she believed, infection, with the medical profession. 4. The conclusion to be drawn from these two medical appointments on 11 April is that although either doctor was capable of observing the deceased and her general state of health, neither conducted any physical examination of her. Neither inquired as to her state of health other than what was her usual complaint, notwithstanding her distressed presentation. From their point of view, each very short consultation was for other purposes. Each doctor approached their consultation with a degree of tunnel vision, only addressing the problem that they believed existed. Neither were proactive and there was no evidence that either sought to explore her poor presentation any further. 5. The lack of observation by both of these medical practitioners is not therefore an indication that she was well or not suffering from hand pain or infection or presenting as generally unwell. The evidence is a lack of proactive inquiries as to any other cause of her distress. The evidence of Natalie Shackleton and the others referred to above who saw her in the 24 hours before this consultation is that she was presenting as very unwell. Where there is a conflict in the evidence, the evidence of those non‑medical witnesses is preferred. It is significantly more reliable in my view. Nature of the Relationship between deceased and accused 1. In order to assess whether there was, as the Crown alleges, a relationship between the accused and the deceased which amounted to a trusting relationship as between a doctor and a patient, I have taken into account the evidence referenced above of Laurence O'Neill, Natalie Shackleton, XC, David Olteanu and Bryce Gardner. 2. In the context of this case, there is ample evidence that the deceased had a very trusting relationship with the accused. She allowed him to undertake body modification procedures on her that she would allow no one else to do. It was he she turned to when she had pain or as she believed infection in the site of an implant. She complained to him at least twice on 10 April 2017 and visited him. She complained to him again on the evening of 11 April 2017, some 12 hours before her death. When she was spoken to in the early hours of 12 April 2017 by Natalie Shackleton and it was suggested she go to the hospital, she replied again that she was seeing Brendan in the morning. 3. A finding available to the Court on the evidence of Malloy and Olteanu, together with the tendency evidence as referred to above, is that in the context of this case, the accused deterred the deceased from seeking medical attention for her what she believed to be an infected hand. He did this by undertaking to fix any problem himself, told her not to tell any doctor who did the procedure and gave her advice as to what steps she should take herself which included taking it easy, taking pain killers and seeing him in the morning. 4. I find that he told her, her hand was not infected when there was clear evidence that it was, evidence I find he was well aware of. Such was the trust she had in the accused that she trusted him to fix her hand notwithstanding the fact she believed it to be infected. It is possible she commenced taking antibiotics at some stage, however, the evidence from doctors, Goman, Ellis and Duflou, is that oral antibiotics in the face of an enclosed abscess or a significant infection were unlikely to be of assistance. 5. The overwhelming evidence and opinion from doctors, is that as of 10 April 2017, the deceased required urgent and significant medical assistance. The accused discouraged her from seeking that advice notwithstanding he was well aware of the infected state of her hand, the result of a procedure he was originally responsible for. Each of the observations are relevant to a significant breach of the accused's duty of care. Duty of Care 1. The Crown submits that the accused owed the deceased a duty of care similar to a duty of care owed by a medical doctor to a patient. The defence agreed that the accused owed her a duty of care but not at this level. 2. The duty of care owed by a doctor to a patient, was explained by Dr Bezic. Dr Bezic is a medical doctor and fellow of the Australasian College of Cosmetic Surgery. He holds a Diploma in laser surgery and has undertaken postgraduate general surgical training. His expertise was not challenged. Dr Bezic prepared a report to the Court based on his reading of statements, autopsy reports and photographs. His report became exhibit 13 in the proceedings. 3. His evidence is relevant in advising the Court, the nature of the implant procedure and how it would have been effected, that is, how it would have been physically undertaken and the nature of the doctor-patient relationship. Dr Bezic opined that in order to consider the nature of the relationship between the deceased and the accused, it is necessary to consider the procedure that resulted in the implant, being inserted into her hand in the first place and the later procedures that he undertook in order to, apparently resolve the issues that the deceased told him she had with the implant. 4. This is an obvious starting point for the Court. Dr Bezic observed that in order to conduct the first procedure, it would have had to have gone through the process of planning and injecting local anaesthetic under the skin. He believed he would have made the incision and used an intersect to make the subcutaneous pocket for the implant. After the implant was inserted, he suggested the accused would most likely have expressed any blood and then inserted the folded implant under the skin and then extended it once it was in place. He observed he would have then sutured the incision with simple nylon sutures and placed a dressing over it. Dr Bezic observed some of this procedure from the video evidence, exhibit 14, referred to above. 5. Dr Bezic continued that on his observation of the video taken on the 10th April 2017, the accused opened up the old incision and expressed out from under the skin, a large amount of Haemopurulent fluid. He then manipulated the implant and re-sutured the wound. He then made three new incisions on the inside aspect of her right thumb and in a similar fashion to what he described in the first procedure, inserted three, what appear to be silastic rods into the skin in the area of her thenar eminence. He then sutured these wounds. 6. Dr Bezic formed the opinion that Mr Russell holds himself out to be an expert in the field with surgical experiences. In those circumstances, he concluded that the deceased had a de facto doctor/patient relationship with Mr Russell. While useful, Dr Bezic's opinion is not the end of the matter. 7. The Crown submit that the accused owed a legal duty to the deceased to undertake an inherently dangerous procedure that is inserting a hand implant in a careful manner and to employ reasonable knowledge, skill and care and caution in doing so. 8. That the procedure was inherently dangerous, is confirmed by the unchallenged evidence of Dr Bezic. 9. I acknowledge that generally speaking, one citizen owes no duty of care to another in normal circumstances. The law does not impose a duty of care for example, on suppliers of prohibited drugs to take reasonable steps to preserve the lives of their customers. There are, however, other circumstances where the law does recognise that one person owes a legal duty to another. A breach of that duty of care arises when the standard of care has fallen short of what is expected. Dr Bezic described the relationship between the accused and the deceased as being akin or like a doctor/patient relationship. However, the accused was not a doctor and the deceased was not his patient. 10. It is my view that I do not need to classify it as such in order to find that a duty of care existed. The accused, through his counsel, agrees that there was a duty of care and it seems by his submissions to accept that the sequence of events which commenced by the implant being inserted in the deceased's hand, gave rise to a risk of injury. In para 128 of his submissions. Defence submit that the standard of duty of care cannot be based on the duty of care owed by a doctor to a patient, simply because the deceased understood and because she was of the view apparently that what he was doing by his procedures was illegal. By this submission, I take it that the defence submit that if a duty of care was owed, it was of a lesser standard than a qualified medical practitioner owes to a patient. 11. In the case of Burns v The Queen [2012] HCA 35, it was observed that: "A duty of care owed by one person to another, can normally arise in at least four situations. 1. Because of an obligation imposed by law such as driving a motor vehicle. 2. Because of a certain relationship between two persons, for example, parent or child or doctor and patient. 3. Where a person has assumed a duty of care over another by a contractual relationship or 4. Whereby the person's voluntary conduct, they have assumed a duty of care for the other person." 1. In the circumstances of this case, there was a contractual relationship between the deceased and the accused. She paid him a not insubstantial amount of money for him to perform procedures on her hand. As part of the contractual obligation promised by the accused, by accepting appointments to fix the presenting problem, he continued to owe her a duty of care after the completion of the implant on 20 March. 2. The accused also assumed a duty of care for her as a result of the longstanding relationship between them whereby he performed numerous procedures on her body in the approximately two to three years they had known each other. The procedure on 20 March 2017 was the last in a series of procedures. The deceased's relationship with the accused was one of trust. She knew he was not a doctor but trusted him to perform what amounted to minor surgical procedures and to fix any problems arising from those procedures. 3. The evidence from the lay witnesses above, and Dr Wilemse, is that the deceased had a very trusting relationship with the accused and the accused took advantage of that trusting relationship by continuing to perform procedures on her which were inherently dangerous. 4. The law recognises that one person can owe a duty of care to another in certain situations. In the context of this case, the duty of care arose because of the long-term trusting relationship encouraged by the accused, and the history of dangerous procedures performed by him. In addition, is the duty of care assumed by the contractual relationship. 5. As I noted, she paid a not insubstantial amount of money and a further sum of money on 10 April 2017. The deceased had a right to expect that he would perform then professionally and without harm to her 6. The degree of the duty of care owed, is dependent on all of the above considerations. The accused operated as if he were a surgeon. He used surgical instruments. He used lignocaine inserted via injection. He purported to use hygienic procedures by the (allegedly inadequate) use of an autoclave sterilising device. He told others that he had undertaken hygiene courses. (Kelly Spratt's evidence.) He displayed certificates of the entry to the transition shop, certifying that he had training in a number of important areas relating to health and safety including cross-contamination prevention, bloodborne and airborne pathogens course, troubleshooting and scars, medical considerations for body piercing and safe practices in the piercing room as provided by the Association of Professional Piercers, He also displayed that he had undertaken a course at Queensland TAFE in subjects including maintaining infection control standards in office situations, bedside manner and aftercare . All documents displayed were tendered as exhibit H in the proceedings.The accused also boasted to others that he was "better than a doctor". The deceased considered him world class and held him in high esteem. 7. While the duty of care owed, is not exactly a doctor/patient relationship duty, it is very close to it. In offering the procedures that he did, he held himself out as being competent to perform those procedures. Exhibit H, as I have just referred, is evidence that he held out to the general public that he was fully qualified in those areas which are all important areas for hygiene, medical considerations and quality control. 8. The self-direction relevant to this issue, is that every person owes a duty to conduct themselves in a manner that will not cause injury to another person in circumstances where a reasonable person in their position, would have foreseen a risk of injury from such conduct to that other person. 9. In the circumstances of this case the deceased had, on the evidence referred to above, a very trusting relationship with the accused. She trusted him, as I have observed, to do the number of procedures on her body. She told others that she considered him to be very good with his job and "like a god". When problems arose with respect to her hand implant procedure, she contacted him to solve it. The accused told her that he would fix it. He gave her advice on further aftercare and pain medication. In doing these things, he not only confirmed the contractual relationship and confirmed that he assumed responsibility for her care in a manner that was very similar to a doctor/patient relationship. He further voluntarily assumed the care for the deceased by asserting that her hand was not infected and she should let it settle down and take pain medication . The evidence of Malloy and Olteanu confirms this . 10. It is obvious from the largely unchallenged evidence of the witnesses whose evidence I have detailed, that the relationship was a very trusting one, form the deceased's point of view. She was aware that body modifications he carried out on her and others, were considered by him, to be illegal in that he told her he would go to gaol if anyone found out. This may explain the deceased's reluctance to advise medical practitioners of the condition of her hand even when she believed it to be infected. 11. The degree of trust was such that it overrode any advice she received from close friends who advised her to seek medical attention. Doctors themselves were available to give medical assistance had she not hidden her condition from them. I find this to be an unusual level of trust and reliance that the deceased placed in the accused. She trusted him implicitly to perform the procedures on her with a degree of skill and competence that would not cause infection nor cause adverse health consequences. 12. In considering the breach of duty of care, I go back to Dr Bezic's evidence. He advised as follows. "To do the type of procedure that he had just described in a safe manner, it would have been to have been performed in a licenced day surgery facility. It could have been done under local or general anaesthetic. Prophylactic antibiotics would be given. There would be a proper sterile field established before the procedure commenced. The operative markings would be made. The local would then be administered in safe levels, the incision made and the pocket would be carefully dissected using retractors to avoid nerve and tendon damage and haemostatics to control any bleeding. The pocket would then be washed out with antibiotics and the implant would be inserted. The implant would have to be a TGA registered device in sterile packaging with an implant sticker. The sticker would contain information about the device manufacturer, implant code and batch and serial number and also a use by date. This sticker would be placed in the patient records. The incision would then be closed in two layers. The patient would be discharged with a course of antibiotics and an information sheet with emergency contact numbers and what signs to look for to seek medical attention." 1. Dr Bezic explained that the implant surgery is dangerous because bacteria can grow and multiply in the enclosed space, eventually enter the bloodstream and so cause death. He concludes that the accused was inserting unregistered devices of unknown origin in this type of a high risk surgery. 2. Dr Bezic said the second procedure moving the object. He observed the photos and video, and said he clearly observed a swollen and erythematous hand. He said that if the accused injected local anaesthetic into this hand, as she said had occurred, this would have been likely very painful as she was at the time, suffering from an acute subcutaneous infection. He said that the local anaesthetic would have had limited effect on such an inflamed tissue. 3. As is obvious, the accused played a causative role in the sequence of events that commenced with the implant procedure. Thereafter, he assumed an obligation to treat the complications and advised the deceased further as to what steps she should take. When she became concerned about what she considered to be "the worst pain she had ever experienced and bleeding like she had never seen before", in addition to the real concern expressed by others as to infections, it was the accused she turned to remedy the problem. 4. On the evidence available from Ms Malloy, Ms Bergin, Mr O'Neill and Mr Olteanu the accused accepted this responsibility by agreeing to further treat her hand and give advice regarding the care of it. Notwithstanding the deceased's complaint that she feared infection and was suffering significant pain, he did not refer her to medical advice and assistance. By 10 April at least, her hand was clearly infected and painful. 5. In summary, therefore, the duty of care arose out of: 1. Approximately a two year relationship between the two, during which time a large number of procedures and implants were performed by the accused on the deceased. 2. The deceased trusted the accused regarding her bodyworks and aftercare,(evidence of XC, Shackleton and Gardner). 3. The procedure which occurred on 20 March 2017 was an inherently dangerous procedure, (Dr Bezic.) 4. The assumption by the accused of treatment of the apparent infection resulting from the original procedure. 5. The commercial arrangement between the deceased and the accused relating to payments for services rendered, (the deceased bank statement exhibit 47). Summary: Breach of Duty of Care 1. Dr Bezic said in order to carry out this procedure of insertion of a plastic implant into the hand area in a safe way, the following steps would have had to be taken: 1. Providing the deceased with prophylactic antibiotics. 2. Establishing a proper sterile field. 3. Washing up the pocket with antibiotics prior to the insertion of the implant. 4. Using a TGA approved implant which had provenance and was sterile. 5. Providing information containing aftercare advice and emergency contact details. 1. The evidence of Dr Bezic is supported by the evidence, later, of Dr Johan Duflou, (T p 777 at line 35) where he was asked: "Q. And you've covered elsewhere, but perhaps while we're on the topic, if there's something that at paragraph 29 that you say 'infections of the hand are well known, or a well‑known medical emergency, and require expert treatment to prevent serious complications from developing', is that your experience? A. Yes it is. Look, I recall very clearly 35 plus years ago having this bashed into my head as a medical student. Hand infections are serious. They can deteriorate rapidly. Refer them to a hand surgeon very rapidly, very early. They are dangerous. So certainly something that is to me in event basic medical knowledge and something I've seen repeatedly. If there's a hand infection, you take it very seriously." 1. There is no evidence that the accused did any of these things. He did not have a practise, according to the evidence I have heard, of providing any pre‑antiseptic procedures, other than apparently surgical gloves on most occasions and occasionally a mask. There is evidence that whenever he conducted procedures, he failed to do so in a hygienic way, by conducting those procedures in a tattoo room in a public shopping area. There is no evidence that he ever established a proper sterile field during his procedures, and the evidence to the contrary that he had a tendency to undertake procedures without appropriate antiseptic techniques which may have reduced the risk of infection. There is no evidence that he ever washed any of his implant sites with antibiotics prior to the insertion of implants. To the contrary, exhibit E gives advice against the use of general antibiotics such as Dettol. As to his use of TGA approved implants, the evidence of John Brady referred to above, that he treated implants in general in an unhygienic way and to skip proper hygienic autoclaving procedures. 2. The provision of information for aftercare was apparently contained in a price list, in which the use of teabags is mentioned, exhibit E. 3. The second and third alleged breaches of the duty of care relate to the allegations of the Crown that the accused failed to refer the deceased for professional medical treatment on 10 April 2017, and further re‑manipulated the implant on her hand, and inserted another one when it was clear the hand was showing signs of infection. 4. It is observed that none of the qualified medical practitioners or experts who have observed the images and videos of the deceased's hand taken on 10 April 2017 dispute that the hand was likely infected at the time, except for Professor Patterson, (exhibit P, p 6). He did not observe any pus present on 10 April 2017. His lack of observation however, of pus on this video, is contradicted by the evidence of Dr Bezic, XC and the Shackletons, and the deceased herself. It may be that the quality of the videos and pictures that Dr Patterson saw did not assist. The quality of the videos and pictures in Court was suboptimal. Professor Patterson observed that there was no necrosis or gangrene at autopsy, and that seems to have informed his conclusion. In relation to the autopsy photos, he did observe that there was a small amount of yellow liquid, but the nature, he said, could not be determined visually. Others classified it as evidence of infection. Dr Duflou's evidence above indicates the danger of this act. 5. Dr Patterson, just to refer briefly to his report, answered the questions that were put to him on his understanding that the answers that he gave had to be to the criminal proof standard. I observe that Dr Patterson as whole was influenced by this consideration. Further comment will be made below. In addition, I observe that Professor Patterson did not have available to him the evidence of the lay witnesses, all of whom had seen the deceased's hand on the days prior to her death, and whose evidence is referred to above. Professor Patterson's conclusions are therefore based only on part of the evidence and I do not accept it. As I noted already, in relation to his observations of the video, his observation that the quality was not good. 6. It is submitted on behalf of the accused, (para 148 of the defence outline of submissions), that "the accused could not be expected to have been alive to the fact that the deceased hand was infected and therefore not have a duty to refer her to treatment." This is a submission that cannot be sustained. The accused purported by certificates he displayed at the shop to have undertaken courses in infection. The lay witnesses, who gave evidence in these proceedings, did not have those qualifications, yet they were able to identify the infection themselves and urge medical intervention. The fact of infection is confirmed, as I said, by Dr Bezic, and most of the others who saw the video in exhibit 14. 7. Defence further dispute that there is sufficient evidence to confirm the hand was infected as at 10 April. The evidence of Natalie Shackleton, XC, YC and Dr Bezic's observations of exhibit 14 are direct evidence of infection at that time. In addition, the deceased's complaints to the above named witnesses and the evidence of David Olteanu that the accused recognised there might be a problem, but told the deceased that if she went to doctor not to say who did it, is ample evidence that the hand was infected, and it is very unlikely that the accused was either aware of it, or at least very strongly suspected it. The evidence that he told her that it was not infected does not assist him and is further evidence of the breach of his duty of care. 8. Defence's further claim that in general the deceased was not showing signs of infection is amply discussed above. The deceased complained to others and to the accused that there was something wrong with her hand and was worried about it being infected. The deceased told others that the accused had pushed out all this blood and goo and pus. In those circumstances, the accused should be expected to have been alive to the fact that the deceased's hand was infected, and in those circumstances he had a duty to refer her to treatment. He breached that duty as well. 9. Defence also suggest that the reliability of the deceased's utterances about the state of her hand, presumably to others such as Shackleton, is suspect. I do not accept that those utterances are inherently unreliable notwithstanding the drugs she had consumed. The utterances as to her pain and the infection that was being demonstrated in her hand were complaints she made to others who had the opportunity at the time to view the state of her hand. 10. The suggestion in submissions that, "he probably washed the wound with antibiotics," is not supported by any evidence . At best there may have been a saline wash, which it if it occurred made a bad situation worse. 11. Defence further submit that there is a lack of evidence of the accused's failure to refer her to professional medical treatment. The evidence of Alex Malloy, Natalie Shackleton, David Olteanu and John Brady, whose evidence is discussed above, is overwhelming evidence of this failure. In considering his failure to refer her to qualified medical advice, the evidence is that he commented to her in such a way as to deter her from doing so, herself. 12. At the stage of, at least, the first visit on 10 April 2017, it would have been obvious that an adverse health complication had arisen as a result of the procedure he had undertaken on her hand. His advice to her to take medication she had received for migraine headaches on 11 April in the context of amelioration of her hand pain was a further way of dissuading her from taking medical advice and a compounding breach of his duty of care. 13. I find that on the evidence of all of the witnesses above, including Dr Bezic, the deceased's hand was infected on 10 April and that was the very purpose she went to see the accused. She believed it to be infected and told him so. The degree of trust which was obvious to the accused and his undertaking of procedures and so called aftercare required a high standard of care different to but in the order of the standard of care owed by a doctor to a patient. 14. All of the actions of the accused from 20 March 2017 to CC's death represent a sequence of breaches of duty of care that he owed to her. In summary, those breaches were significant and ongoing and they are: 1. the procedure which occurred on 20 March 2017 was an inherently dangerous procedure; 2. the lack of care of the accused in treating the apparent infection when advised of same on 10 April 2017; 3. the events on 10 April 2017 when the wound was reopened injected with anaesthetic and repositioned, a further procedure occurred on that day which is a further breach; 4. the failure to refer the deceased to medical attention notwithstanding significant evidence of infection on 10 April 2017; and 5. the failure of the accused to refer the deceased to a doctor later on 11 April 2017 and the advice at that time to take her migraine medication. Degree of Negligence 1. The Crown submits that the actions and omissions of the accused as described above give rise to a great falling short of the standard of care which a reasonable person ought have exercised and involved such a high risk that death or grievous bodily harm would follow, is such that criminal punishment is warranted. 2. I accept that causation is a relevant primary issue but it is convenient to discuss the degree of negligence here as I have just referred to much of the evidence. It is accepted that to constitute manslaughter by criminal negligence, a breach of duty must be gross. The test has been variously expressed, for example, as conduct deserving of punishment, recklessly or a very high standard of negligence. Relevantly, in Andrews v DPP (1937) AC 576 (England), Lord Atkin remarked: "Simple lack of care such as will constitute civil liability is not enough for the purpose of the criminal law. For the purposes of criminal law there are degrees of negligence and very high degree of negligence is required to be proved before the felony is established." He continued: "Probably all of the epitaphs that can be applied reckless most nearly covers the case." 1. The position was not disputed by defence. The Crown submit that the following matters can be taken into account when considering the great falling short of the standard of care. 1. Conducting the implant procedure on the deceased without any discussion of the potential risks or consequences of the procedure. In this regard, it can be observed that there not even a standard consent procedure. 2. Conducting the procedure without appropriate antiseptic techniques to reduce the risk of infection. The evidence of Dr Bezic ,above, details what should have happened. The tendency evidence referred to above supports an inference that on the occasions that the procedure occurred ,on 20 March 2017 and again on 10 April 2017, infection controls that were appropriate were not in place. To support this is the the evidence of Mr Olteanu, who observed the beginning of the procedure on 10 April. He said it was carried out in the tattoo room and that the deceased's hand was simply resting on the beauty couch armrest. 3. Failing to provide adequate aftercare and holding out that he could fix the infection. The deceased told her friends that the accused pushed blood and pus out of the wound. He may have washed it with saline. The evidence of Dr Bezic was that at this stage at the very least that would be required would be to operate in a sterile field in a licenced day surgery and that the insertion site should washed out with antibiotics, and antibiotic supplied, if now provided at the time of the original procedure. 4. Failure to refer to medical advice. The evidence of Ms Malloy and Mr Olteanu supports a finding that the accused deterred the deceased from seeking qualified medical intervention and offered his prognosis on the state of her wound infection. He told her he could resolve the problem and told her to take pain medication. His lack of attention to clean or disinfect the wound on 10 April 2017 may or may not have helped, however, the evidence shows that by that time expert emergency surgical intervention was probably necessary. (exhibit 53 the expert report of Dr DuFlou). 1. Defence submit that the deceased was of the belief that the procedures were illegal and the standard of care that she could reasonably have expected to receive would thereby be lessened. Presumably, this means that therefore, any breach of the lessened duty of care would not amount to gross negligence. This submission cannot be accepted. The degree of trust that was encouraged by the accused supported the need for a high degree of duty of care not equal to but not dissimilar to a doctor and patient relationship. If the accused persuaded the deceased not to seek medical attention by allowing her to believe that the procedures he was performing were illegal, (XC's evidence), then that is an aggravating feature of the breach, not otherwise. 2. The tribunal of fact must find that the accused was under a duty of care recognised by the law. I have so found above. 3. A tribunal of fact must also find that the accused by his deliberate act or omission constituting a breach of that duty of care fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and which involved a high degree of risk of grievous bodily harm to another that the act or omission of the accused merits criminal punishment. I have so found above. 4. The issue for consideration is whether the acts or omissions which constituted that breach were causative of the deceased's death. 5. The self- direction relating to causation, in this circumstance requires the Court to understand that where there is an issue of causation the Court must consider whether the accused's acts or omissions contributed significantly to the death of the victim, but that it need not be the sole or immediate cause of the victim (Royall v The Queen 1991 CLR 172).The issue of causation is to be determined by the application of common sense to the facts as I find them to be while appreciating that the purpose of the enquiry is to decide whether to attribute a legal responsibility in a criminal matter. In the R v Toma [1999] NSWCCA 350, this was described as the standard direction on causation and is in effect an exhortation to the finder of fact to consider the degree of breach of duty of care, or gross negligence, as I have referred to above. 6. In considering causation generally, I acknowledge that causation is a question of fact in the context of this case there can be more than one cause of death of the victim. The Court does not need to find absolutely the principal cause of death. (R v Andrew [2000] NSWCCA 310). 7. Proof of the element that the act of the accused caused the death requires a tribunal of fact to be satisfied beyond reasonable doubt that the act of the accused was a substantial or significant cause of death or a sufficiently substantial cause of death. (Swan v The Queen [2020] HCA 11). The context of this observation by the High Court was that the deceased in that case, died after a decision was made not to undertake a surgical procedure which may have saved his life. That decision was made due to the extremely poor quality of life that the deceased was suffering from, as a result of injuries caused by the defendant ,Swan, some months prior. The decision not to operate was made taking that poor quality of life into account. The High Court observed that the original injury was a sufficiently and substantial cause of death in those circumstances. This is not directly relevant to the case under consideration here, but is a helpful illustration of the meaning of sufficiently substantial cause of death. 8. Although not submitted on, by either party, I also consider whether there was any act by the victim that broke the chain of causation between the acts of the accused and her death. In that regard, I refer myself specifically to her failure to mention to doctors that her hand was infected when she could have done so. I have referred to the accused dissuading her from doing so and his undertaking to fix the hand himself. Therefore in the circumstances of this case and taking into account the observations in Swan's case above, I do not find there is any break in the chain of causation. One of the experts referred to below spoke of some information about a dog jumping on her hand. There is no evidence of this occurrence at all and in any event that expert noted it to be an irrelevant consideration. 9. The consideration of causation was recently discussed in the Court of Appeal in the Attorney General's application pursuant to s 108 Crimes (Appeal and Review) Act 2001 in Re Robert Burton (a pseudonym) [2021] NSWCCA 87. This was an entirely different factual situation however the full court observed in answering to the questions put said (Simpson AJA ;Campbell and Adams JJ) "The capacity or incapacity of one circumstance to be causally to be related to another is a question of law. It was not necessarily that the crime establish the deceptions" (as were relevant in that case) "were the sole cause of the financial advantage or disadvantages. It is sufficient they significantly contributed to the outcome. Unless it could be said that there was no evidence sufficient to support such a contention (even if the available evidence were tenuous or inherently weak or vague), the question of was one of fact for determination by the jury…." 1. The Crown must prove beyond reasonable doubt that the accused caused the death of the victim. The Crown says that the accused caused this injury because the breach of the accused's duty of care to the deceased was of such a high nature as to the negligent to the criminal standard and that the death was caused by the accused's act or omissions in breach of that duty. The accused submits that there was no gross breach of the duty of care . The accused submits further that his act or omission were not causative of the deceased's death. 2. In deciding whether the Crown has proven this I would apply my common sense to all of the facts surrounding the infliction of the various harms to the victim, keeping in mind at all time that I am deciding that whether to attribute legal responsibility to an accused person for the harm suffered by another person in what is a criminal prosecution. I acknowledge that this is not an issue of philosophical or scientific proof. I am deciding a more practical issue that is whether an accused person has committed a crime involving the causing the death of another person. 3. The Crown will have proved this fact if I am satisfied beyond reasonable doubt that an act or omission of the accused substantially or significantly contributed to the death of the deceased. It is not sufficient if the act or omission was merely coincidental with the death or was insignificantly connected with it. This is a question of fact. I do not have to determine what if any was the major or direct cause of that harm, it is sufficient that I find beyond reasonable doubt that an act or omission of the accused remained an operating and substantial cause of her death, despite in the context of this case ,any possible contributing cause. Expert Evidence 1. The Crown contended a major cause of death was septicaemia. Helpfully Dr Bezic in exhibit 13 describes septicaemia as a systemic or whole body inflammatory response to infection by a micro-organism. There is an invasion of these micro-organisms or their toxins in the blood stream causing illness. The generalised signs of illness are temperature, elevated pulse and more rapid breathing. If septicaemia progresses without treatment it can lead to organ damage and failure and then multi organ failure, septic shock and finally death.There is general agreement by all of the experts that it is a difficult diagnosis to make after death and that the timing of death if it occurs as a result of sepsis maybe quick or very quick. Each of the Crown defence experts explained this process in more detail and with particular reference to the autopsy findings. The terms of sepsis and septicaemia were used interchangeably. The Crown and defence experts reports relied on were tendered by consent. Defence did not call some witnesses whose reports were referred to in evidence of other experts and the reports were not tendered. This was of no consequence, and those parts of reports were not relied on. . Each of the witnesses whose reports were tendered were called to give evidence allowing me to independently and objectively assess their evidence and basis of considerations. Crown Experts Dr Brian Beer 1. Dr Brian Beer, Senior staff specialist in forensic pathology New South Wales Health. He prepared a number of reports: autopsy report dated 2 August 2017 exhibit 50; Report dated 7 July 2021, exhibit 51; report dated 16 August 2021 exhibit 52. His report is to be read with the report from Thi Kim Tran (Bach Applied science, Master of science –environmental toxicology) from FASS. Exhibit 36 is a certificate of analysis which sets out an analysis of the samples taken during the course of the autopsy. None of these measurements were in dispute, although some substances referred to by the various experts were not tested for. 2. On 18 April 2017 an autopsy was conducted by Dr Brian Beer. He concluded in his first report that the direct cause of death was septicaemia. The only antecedent cause identified for this infection was, infected site of body art implant right hand. In cross‑examination, he conceded that sepsis was in his view a probable mechanism of death, but by no means certain. Dr Beer noted that toxicology showed non‑toxic range levels for a number of prescription drugs that were detected and that there is no convincing evidence for a primary mixed‑drug toxicity mechanism of death, but a minor contribution could not be fully excluded. 3. In further reports and in his evidence, he observed that it was still a possibility or probability that the cause of death was septicaemia, but he said again it was by no means certain. For that reason he returned a finding of unascertainable in his second report. It is observed that this conclusion was returned after he became aware that another expert had doubted his findings based on that expert's understanding that the criminal standard of proof was important. 4. In his evidence in court, Dr Beer reconfirmed that the mostly likely cause of death was septicaemia. He said that the pointers against sepsis included the observations of Dr Van der Walt and Professor Sturm which he understood to be that the deceased was presenting well as on 11 April 2017. I have already commented on these doctors' observations above. Dr Beer did not have the advantage that I did of the evidence of the non‑medical witnesses to compare with the evidence of the medical witnesses. 5. In discussing an alternative observation, that of combined drug toxicity being the cause of death, Dr Beer observed that with all opiate drugs there is a wide overlap between the non‑toxic and toxic ranges ,depending on a range of factors, including tolerance issues and other personal factors. The long delay between death and post‑mortem investigation was a factor he took into account. 6. Of importance to his findings were the levels of C‑reactive protein and procalcitonin (PCT) and neutrophils in lungs and heart. He observed that potentially a small amount of inflammation in the lungs may have produced something in the nature of increased levels for these substances, but the findings in the heart were indicative of something else, by which he meant a generalised infection indicative of septicaemia. He observed that the lung infection, if it existed, was minor or microscopic, therefore unlikely to produce significant change in levels. . The potential could be at an infection in its early stages unrelated to infection in the hand, but he did not believe that the C‑reactive protein increase would come from that source. He agreed that there were conflicting opinions on the stability of PCT after death, but pointed out that if it goes anywhere it goes down, not up. Therefore he said the (high) PCT measurement post‑mortem was still an indicator of septicaemia. 7. In cross‑examination he confirmed that the potential source of sepsis was in the hand infection. It was suggested to him that hand surgery that had occurred on 10 April 2017 could account for the increase in PCT in the post‑mortem measurement. He disagreed that the procedure, which was a reference to the further implant procedure on that day, would account for this increase in PCT levels. . He pointed out that major surgery might increase PCT levels, but he did not consider that the hand procedure relevant, explaining that it was not a major surgery. 8. When asked about protective factors against septicaemia, Dr Beer confirmed that a young age might be a protective, but pointed out that anyone can become septic. 9. In discussing the potential influence of drug toxicity levels, he commented that he did not find that it was a relevant cause of death, commenting that the changes were quite low and the results were, he said, underwhelming. However, he observed that he could not exclude that mixed drug toxicity made a contribution, and if it did it would have been minor. He said that if the evidence concerning the hand did not exist, then the cause of death would most likely have gone unascertained. He was of the view however that the hand showed infection on his examination. . Professor Peter Ellis 1. Professor Peter Ellis, a Bachelor of Medicine; Bachelor of Surgery; Fellow of the Royal College of Pathologists (Australia); Fellow of the Australasian College of Legal Medicine (UK). He is in summary a specialist forensic pathologist 2. He conducted a review of the evidence. His reports were tendered, exhibit 26 report dated 3 December 2020; exhibit 27, supplementary reported dated 9 December 2020; exhibit 28, report dated 23 April 2021; exhibit 29, reported dated 29 April 2021; and exhibit 30, report dated 31 June 2021. 3. Professor Ellis explained that the processes undertaken to arrive at an opinion as to cause of death commences with an investigation, often by others of the circumstances surrounding death. In this case, that included statements from various people including doctors who had seen the deceased in the days and months before her death. Professor Ellis explained that pathologists then use the information contained in the body, internal and external, and other information, to build up a story of how an individual comes to die. It is implied that the content of other professionals' reports, such as in the context of this case, toxicologists, are part of the information contained from the body. 4. The opinions and observations of each of the experts in this category ought be viewed with this perspective. Obviously, any expert's opinion will be guided by the source material used as the input for their considerations, as well as the reasoning processes undertaken. 5. Professor Ellis' explanation of the holistic approach to a cause of death investigation was sensible and convincing and not challenged as being the correct method. There was a process repeated by many of the expert witnesses to a greater or lesser extent. Apart from Dr Beer none of the expert witnesses has had personal access to the deceased. 6. Professor Ellis based his source material largely on the autopsy report, although he had other source material as referred to in his various reports. He viewed as significant the presence of a local hand infection, the presence of pus, and the quantity of neutrophils present in the heart and lung area, suggesting he opined ,a lot in the blood at the time of death. Pathological indications of spreading of infection were detailed in his report and referred to below. 7. He observed that no bacteria were grown from samples taken, but he observed reasons for this, the most significant being the delay of six days, during which time he assumed the body to have been refrigerated. He observed the potential use of antibiotics by the deceased prior to her death may also have been relevant to this negative result. For this reason he found this negative result to be inconclusive. He explained that C‑reactive protein and procalcitonin, referred to in his report and in the autopsy report, are non‑specific reactions to inflammation and/or infection. No testing was undertaken as to the nature of the neutrophils, and therefore because of the increased number is specifically unknown, although lung infections and allergies, he said, were unlikely. He concluded: "Considering these various reports and opinions, I am in general agreement with all three opinions which are referred to that there is evidence, albert indirect, of septicaemia, and this is well known to be a cause of death. Additionally, given the reported presence of a foreign implant in the hand which was associated with significant pain, swelling and apparent accumulation of infected material, together with the microscopic observation of accumulation of inflammatory neutrophils in identified blood vessels, the diagnosis of septicaemia arising from infection introduced by foreign material would seem to be strongly supported…This is also supported by the elevated levels of C-reactive protein and procalcitonin, both of which are non-specific indicators of active inflammatory processes" 1. With respect to whether there was a reasonable or rational possibility that the deceased's prescription drug use could be the sole cause of death, Professor Ellis concluded: "What I took from his examination was a lot of drugs present but virtually all at low levels except for an antidepressant". He observed that "there was a possibility that they may have affected her responses but nothing so high that you could say it was it was a cause of death" 1. In addition he observed that the deceased's history, of use of those substances would have to be taken into account to consider any tolerance that the deceased had had to them. In the context of this case other evidence supports that the deceased would have had a high level of tolerance. 2. Doctor Ellis further reported: "Mixed drug toxicity is a somewhat non-specific concept which implies that there are a number of drugs present and that the overall effect of these drugs is toxicity although it is not possible to specifically delineate which of the individual agents is responsible for the toxic effect. There is nothing specific in the measurements taken that mandates any individual drug being responsible for death. …Notwithstanding that rider, the comments of Doctor Fu together with the opinions of Doctor Beer and Professor DuFlou support the belief that the possibility of sedative or depressive effects induced by one or more of these drugs may have contributed to the effects of septicaemia by a worsening of the depressive effect. …In my opinion it is not possible to either confirm or refute the likelihood that mixed drug toxicity may have been a contributing factor but certainly it cannot be excluded". 1. With respect to whether septicaemia or mixed drug toxicity could have been the sole cause of death of the deceased, Professor Ellis concluded,: "While the evidence for septicaemia is only inferred by virtue of the negative blood culture test and autopsy, it is still very strong. There is no doubt that dissemination of blood borne infection as evidence in this case (intense neutrophilia seen in the cardiac and pulmonary blood vessels, together with the elevated C-reactive protein and procalcitonin levels) can be the sole cause of death, especially if left untreated or if treated inadequately. A negative blood culture test can be explained either by the possible use of antibiotics or even by the delay in testing. The presence and possible effects of mixed drug toxicity are less definite as the levels detected, while certainly abnormally high for some of the drugs, are complicated partially by the delay in testing but also by the uncertain clinical and pharmacological history of the deceased, not to mention the possible interaction between some of the drugs being measured". However, he said: "Given the fairly definite presence of septicaemia and the known serious and sometimes fatal consequences of this condition, it would seem imprudent to suggest that drug toxicity could have been a cause of death by itself when the drug levels were not particularly high and when there is", he said, "another definite cause present". 1. In a later report Professor Ellis concluded: "I consider it to be unreasonable that the deceased's prescription drug use is the sole cause of death in this case. For prescription drug use to be the sole cause of death it would require firstly there be no other probable cause of death present and secondly, that any prescription drugs which are present are detected at concentrations sufficient to result in or precipitate death in the absence of another cause. It is evident that neither of these conditions have been met". 1. Doctor Ellis stated in summary that he agreed with the initial opinion of Doctor Beer, the opinion to which I'll refer to later of Professor DuFlou to which he had access ,and the pharmacologist Shuang Fu. 2. Dr Ellis also considered the reports of defence experts. In relation to Dr Patterson's report, Dr Ellis opines in summary that the basis for Dr Patterson's rejection of a diagnosis of sepsis is unsound. He commented on Dr Baber's report (which was not before the Court) and considered and rejected the observations in it. He also confirmed that the antemortem observations of Dr Van der Walt and Professor Sturm should be taken into account. He had available to him their statements containing such observations as they made . Dr Ellis said their observations generally countered against septicaemia. My Observation is that I give the observations of each doctor commented on above, very little weight. 3. Dr Ellis maintained his view that infection from the hand remains the most important cause of death. Dr Ellis reiterates that there is sufficient evidence that infection was present especially in the region of the implanted object in her hand. He also noted that the absence of post‑mortem bacteriology is not uncommon in people who have died of septicaemia. Dr Isabel Brouwer 1. Dr Isabel Brouwer is a forensic pathologist, senior staff specialist and chief forensic pathologist for a New South Wales Health pathology. Among other things, she has a Bachelor of Medicine in Epidemiology and a Bachelor of Science in Public Administration. Her reports dated 8 January 2021, (exhibit 48), and 17 August 2021, (exhibit 49) were tendered. 2. A review of all of the evidence was conducted by Dr Brouwer. She had available to her the relevant reports from all Crown experts referred to in these proceedings, in addition to the results of blood tests taken at autopsy and the statements from all relevant witnesses, all of whom have now given evidence in the current proceedings. For her later report she also had access to the later reports of Crown witnesses and also the reports provided by proposed defence witnesses Professor Wecht, Dr Barber, Dr Collins, Professor Patterson and Mr Farrar. Dr Wecht's and Dr Barber's reports were not tendered. 3. Dr Brouwer observed the findings of Dr Beer. His observations and conclusions are contained in p 4 of her first report. Dr Brouwer does not dispute his observations. She observed and summarised Dr Fu's report on pages 5 and 6 or her report and again concurred with those observations. 4. She observed "the interpretation of post-mortem blood levels and the contribution thereof to the death is complex. Post-mortem changes in the blood and cells may affect the levels of the drugs measured. Interpretation of these blood levels cannot occur in isolation without examination of the relevant circumstances surrounding the death, a review of the medical history, autopsy findings and literature comparisons" 1. I pause here to observe the importance of the prior-death circumstances of CC as I have discussed at length above. 2. Dr Brouwer continued, "The value of post-mortem drug concentrations due to the tolerance which may develop in life associated with chronic use of certain drugs as well as the post-mortem phenomenon of redistribution. The drug interactions may be unpredictable and effects of drugs may vary from person to person". 1. Dr Brouwer then went on to describe the potential variations and reasons therefore. It is not necessary to repeat the detail here. 2. She also however observed, "Long-term use of opioid analgesic drugs may lead to the development of tolerance which requires higher doses of the drug to achieve the same analgesic effect. From the medical history it is clear that [CC] had been prescribed opioid analgesics for a significant period of time prior to her death (Months to years), which she said most likely resulted in the development of tolerance against those drugs". 1. She observed that just before her death, Dr Van der Walt documented that CC was taking a total of eight tablets of Endone 5mg, where the normal prescribed dose is one tablet every six hours. After discussing theories involved in reaching a conclusion on cause of death, Dr Brouwer concluded: "Based on my review of the available information and review of the literature I would like to conclude as follows: (1) My response to the question, is there a reasonable or rational possibility that the deceased's prescription drug use could be the sole cause of death in this case? Answer: In my opinion, it is not a reasonable rational possibility that the deceased prescription drug use was the sole cause of her death. Her death cannot be classified as a linear dying type according to Leiss. A morphological cause of death was identified at autopsy. Autopsy pathology findings of septicaemia were sufficient to declare death." "My response to the following two questions: (1) The extent to which septicaemia and mixed drug toxicity may have caused or contributed to the death of [CC] and (2) Whether either or both of septicaemia or mixed drug toxicity could have been or could not have been the sole cause of the death in this case? Answer: Post mortem examinations identified although morphological cause of death, (septicaemia due to infected site of body art implant…) the post mortem findings (autopsy histology toxicology) relating to her septicaemia were sufficient and severe enough to declare death without any doubt. (Medea Group 1)" "The toxicology findings, alone," she said, in her opinion, "is not sufficient to reasonably or rationally explain her death and I agree with the opinion, she said, of Professor Duflou and Dr Beer that the cause of death is septicaemia due to infected site of body art implant. One cannot, however, exclude with absolute certainty that her diagnosed fatal disease and the systemic effects thereof may have made her more susceptible to the toxic effects of the combination of the drugs and that the medication may have contributed or hastened her death. (Leiss converging dying type). 1. In her second report on observing the defence experts' evidence, Dr Brouwer summarised the findings of each of those reports and commented on those findings and observations. In particular, she noted Professor Wecht observations and disagreed with them. Professor Wecht's report was ultimately not relied on by defence. 2. Dr Brouwer concluded: "(1) In my opinion as previously stated, it is not a reasonable or rational possibility that the deceased's prescription of drug use was the sole cause of her death and my view remains unchanged; (2) Considering the additional information available in expert opinions and reports, … review of the noted literature on post mortem diagnosis of sepsis and review of the autopsy findings including a review of the histology slides, I am of the opinion that there is some doubt introduced regarding the certainty of the post mortem diagnosis of sepsis and the cause of death as stated by Dr Beer who the autopsy report for the Coroner, that is, sepsis due to infected site of body art implant. There is, she said, clear evidence of localised infection at the site of implant. The histological evidence of increased intramuscular neutrophils in the lungs and heart lowers the rate of CRP and PCT values indicate a systemic reaction to an inflammatory process but this appears to be insufficient for a definite diagnosis of sepsis." 1. She observed that no swab was taken of the infection site right hand to identify an infected microbiological agent. She observed: "the negative blood culture may have been due to the administration of antibiotics prior to her death but it cannot be excluded in the absence of a positive culture suggests that there was indeed no disseminated bacteremia." However, she continued in para 3: "The significance of serratia marcescens cultured from the bronchial swab is unclear and may suggest post mortem contamination." 1. In conclusion she said: "It is my opinion that it is reasonably possible that the deceased may have died from sepsis as a consequence of the infection to the dorsal of her right hand caused by the foreign body implant. I am, however, not convinced that it can be said with absolute certainty that sepsis led to [CC]'s death. A diagnosis of certainty cannot be given." 1. In cross-examination, Dr Brouwer said that the potential causes of death could be either sepsis or drugs or a combination or even an indeterminant cause. Of greater importance in her view was the following observation: "A post mortem absolute confirmation of sepsis which is a life threatening organ dysfunction caused by a dysregulation host response to infection is not possible due to the lack of such an absolute form of test being able to be performed on a post mortem subject. Diagnostic certainty of sepsis requires specific investigations not all of which were carried out nor able to be carried out and can only be supported absolutely if supported by other investigations and clinical observations." 1. I observe that most of the investigations that could be undertaken such as respiration, temperature and blood analysis and the like require a living subject and, of course, in the circumstances of this case, a living subject was not available. 2. In evidence, Dr Brouwer finally confirmed that any diagnosis of sepsis must include procalcitonin levels observed and more. She said that, "In the current observation the combination of factors mentioned in her report pointed to sepsis and in combination pointed to nothing else." (My emphasis) 1. She noted the observations of Dr Goman that septic shock may occur in a five hour timeline and did not disagree. Professor Johan Duflou 1. Professor Johan Duflou, forensic pathologist with relevant qualifications in Bachelor of Surgery, Master of Medicine (forensic pathology) 2. Fellow of the Royal College of Pathologist of Australasia, Fellow of the Faculty of Forensic & Legal Medicine of the Royal College of Physicians London. 3. Professor Duflou is a highly qualified medical practitioner who has specialised in forensic pathology. His curriculum vitae which became exhibit 55 in the proceedings shows an impressive array of qualifications and contributions to research. His expertise and professionalism was not challenged. In addition to practicing as a doctor for a number of years, he was the specialist forensic pathologist and the senior forensic pathologist and ultimately, clinical director of Department of Forensic Medicine Sydney. He held that position between 1988 and 2015. In addition, he has worked as a specialist forensic pathologist interstate and internationally and has conducted and reviewed a large number of autopsies and related investigations. In addition, he has co-published in peer review chapters or journals, studies on fatal heroin overdose cases, cocaine related fatalities in New South Wales and relevantly also, the prevalence and nature of cardio vascular disease in methamphetamine related death. 4. Dr Duflou's first report, (exhibit 53), sets out the information he was provided with for the preparation of his report. I observe that he received all relevant information including various witness statements and photographs both at autopsy and photographs taken prior to death. The first photographs have been made exhibits in the current proceedings and had been referred to previously by me. 5. In general terms Professor Duflou concurred with Dr Beer's autopsy findings which he set out in summary in paragraph 22 of his report . He commented that Dr Beer performed a detailed comprehensive and competent autopsy and as a consequence he did not feel disadvantaged by not having been present at the original autopsy. 6. Professor Duflou confirmed Dr Beer's opinion that the death was attributed to septicaemia as a result of an infected site of body implant as the most probable cause of death. He also agreed that multiple drug toxicity needs to be considered as a possible cause or contributor of death but given the nature and severity of the infection was a most unlikely cause of death in this case. 7. In his second report, exhibit 54, Professor Duflou reviewed the reports of Professor Ellis and Dr Brouwer. In relation to the contribution of drug toxicity he agreed with Dr Brouwer that it was not possible to exclude with absolute certainty the deceased's fatal disease, septicaemia, and the systemic effects thereof that may have made her more susceptible to the toxic effects of the combination medication detected and the medication that may have contributed to or hastened her death. 8. The doctor also reviewed the anti mortem photographs. He commented these photographs, and videos, confirmed (paragraph 31 of his report) that the hand appears obviously infected at the time of the filmed procedure on 10 April 2017. As I have referred to earlier in my decision. Dr Duflou commented that at the time emergency and expert hand surgical intervention was required. He opined that had such treatment been provided at that time very likely the deceased would have survived her infection although there may well have been a long term disability as a result of the infection or delay in treatment. I note that this concurs with the view of Dr Bezic, a practising medical surgeon. 9. Taking all of the observations of witnesses and photographs and video clips into account, and the microscopic observations and the results of the bio-chemical tests Professor Duflou had no doubt there was an extensive infection in the right hand. He noted that the failure to grow a culture was not significant for a number of reasons that he referred in his report, and those reasons are as reflected in Professor Ellis's report. 10. Professor Duflou made a diagnosis of septicaemia based on the presence of excessive neutrophils in the blood stream on microscopic examination and the raised C reactive protein and PCT levels in the blood. His evidence was clearly that the combination of these three indicators were highly indicative of septicaemia. He further opined that it could be reasonably anticipated that a hand infection, if left untreated, will almost inevitably cause further deterioration over time and without treatment can readily resolve in systemic disease including specifically, septicaemia. 11. He pointed out that septicaemia is without doubt a very serious medical condition and life threatening unless treated expeditiously and appropriately. 12. Professor Duflou considered other potential causes of death and discounted the possibility of the injection of local anaesthetic as being a cause and further rejected the possibility of mixed drug toxicity as being the sole cause of death. In discussing the various levels of drugs detected in her system and even including the substance pregnalagon. He concluded that it was relatively unlikely that drug overdose caused death especially given the presence of pathological process that would be expected to cause death in the absence of medical treatment. 13. The Professor gave important evidence that infections in the hand are a well known medical emergency and require expert treatment to prevent serious complications from developing. He further observed that in this case the delay in effective treatment to the original infected site on the hand would have contributed to the deceased's death, even without the second foreign object being inserted. When asked what he took into account in forming his view he replied it was his "general medical training". 14. The doctor was cross-examined on whether his observations of redness of the hand that he identified as infection would simply be associated with the turning of the snowflake implant on 10 April. The doctor concurred that it was inflamed and that could have been caused by either the new implantation or the turning of the old implant, however as he pointed out either of those activities would only serve to increase the spread of the infection from hand to a generalised infection. Dr Bezic made a similar observation, I note. 15. In observing the videos, exhibit 14, Professor Duflou confirmed that there was extensive infection of the deceased's right hand. He agreed that the results of blood findings are highly indicatives of septicaemia. He based his opinion on a number of markers including the number and nature of neutrophils, the infection as well as the C Reactive protein and procalcitonin levels. He said his observation that there was an infection and evidence of that infection in another part of the body is sufficient reason for an investigation of sepsis or septicaemia. 16. Professor Duflou was cross-examined on whether the raised neutrophils or a raised level of C reactive protein are individually sufficient for a diagnosis of septicaemia. He indicated that probably not, however he observed that the presence of the combination of all of those factors is an important indicator. . He pointed out that a diagnosis of septicaemia requires looking at multiple criteria not simply at a single criteria. He observed that those multiple criteria were present in the deceased. 17. When considering next drug toxicity he agreed with the observations of Dr Beer. 18. In conclusion Professor Duflou observed "the cause of death in this case as septicaemia brought on by the presence of a foreign object in the hand. I remain of this view. It also appears to me that the reports of all of the pathologists consider the relevance of the drugs detected in the deceased's blood, and to a greater or lesser extent view the presence of those drugs as a possible contributor to death". 19. Professor Duflou also received and commented on the report from Professor Patterson and a report from Mr Farrar which raised the proposition that there was a lung infection in existence, and at the time of the infection would have caused the observations that were referred to in the autopsy report. Professor Duflou commented that the increase in neutrophils must be assessed in context and there was an obvious context of the local infection in the hand. He said that such a local infection, as was observed in the deceased's lungs would not cause the level of neutrophils that were found in the lung and in the heart. He observed an infection in the lungs may raise PCT but there was not an infection of such significance to cause this effect. 20. He was not aware of "local minor trauma" such as the hand procedure on 10 April 2017 raising procalcitonin levels, but said that they may be raised after major surgery, by which he meant "body cavity surgery". 21. With respect to protective factors presented by the deceased he agreed that the deceased's young age was a protective factor, as was the lack of comorbidities assuming, as he did, that she did not have a lung infection. 22. With respect to the lack of observation by doctors who saw her the day before her death he opined that it would depend on the degree of examination carried out by the doctor and it would be useful if an examination for sepsis markers was carried out, such as blood pressure, temperature observation, observation of sites of infection and a blood test to see if there was any infection in the body. 23. I have commented on the observation of those two doctors above. They did none of those investigations. When commenting on the report of Mr Farrar (below) below Professor Duflou observed that the case quoted by him where reference was made to death associated with a clonipramine level of 0.54 mls/L to his understanding was a case in the 1980s or early 1990s. While he agreed to a proposition put in cross-examination that human beings have not evolved greatly since that time, he did observe that medicine, methods of detection investigation and testing for various substances has evolved dramatically since that time and therefore an observation made in the 1980s or 1990s is not necessarily persuasive in 2018.He further questioned whether Mr Farrar, who is a qualified pharmacologist, had medical training. As I note below, he has not. He observed that if Mr Farrar did not have medical training his observations were not, he said, valid. He observed that when assessing toxicity for an individual it is not possible to simply take a number relating to a particular drug and say if was the cause of death. He said you cannot make a diagnosis on that examination only and you must look at the levels of the drugs and the experience with drugs and the absence of any competing diagnosis. Other professional witnesses made the same observation referring to the process as drug tolerance. 24. Professor Duflou said that as a doctor it is not possible to make a diagnosis of anything at any greater level than a reasonable level of certainty. He pointed out that with the exception of for example a gunshot wound to the head the majority of findings on autopsy rely on excluding other potential causes and looking at the entirety of the findings in context. A cause of death or diagnosis is a medical opinion. Professor Duflou maintained his opinion that the cause of death was as stated above. 25. With respect to the requirements for inserting any foreign object into the body including silicone materials and metals Professor DuFlou said that such a procedure always raises the risk of infection as a result of introduced microorganism and that meticulous antiseptic techniques, including a clean, appropriately ventilated environment, thorough hand washing with appropriate antiseptic, use of sterile gloves, gowns, drapes and meticulous sterilisation through autoclaving and other forms of sterilisation are all essential. 26. I observe from others that these techniques were not put in place by the accused during the two procedures under examination. Dr Shuang Fu 1. Dr Shuang Fu is a forensic pharmacologist, toxicologist, currently employed by the New South Wales Police Force. She has a Bachelor of Science in Pharmacology, Graduate Diploma of Pharmacological Sciences, Doctorate in Philosophy in pharmacology and other relevant experience and qualifications. She is, in summary, a specialist forensic pathologist. 2. Exhibit 37 is the toxicology report dated 21 July 2018. Dr Fu noted that the level of oxymorphone in the deceased's blood at the time of her death was at the lower end of the reported oxymorphone levels in fatal overdose cases. Dr Fu also noted that the level of clomipramine in the deceased's blood was in the toxic range as well as the lower end of the reported levels in fatalities. Dr Fu opined that the detected levels of Codeine 6 glucuronide, Ibuprofen, Paracetamol and especially oxycodone and oxymorphone could mask the pain sensation that the deceased had at the time of her passing. She said that the combined effects of these drugs is additive but cannot be determined in an arithmetic sense. 3. Dr Fu's evidence was that an assessment of therapeutic and toxic levels of these substances will depend on the experience or tolerance that an individual has to each drug. She noted" That is, if the deceased had been using these substances for up to two years then her tolerance would have been high, therefore toxic and lethal levels more likely to be at the upper end of the scale" 4. This observation is relevant to the morphine based drugs such as oxycodone, and its metabolic derivative and to the substance clomipramine. Based on the deceased's medical records Dr Fu opined that the at the time of her passing she would expect the deceased to have a high tolerance to these substances. The levels of toxicity must be read with this qualification in mind., she said. 5. She further opined that the post mortem distribution of the drugs would not be significant and the levels found in the phenol(?) sample taken was likely to be a fairly accurate measurement of the levels in the deceased's blood at her death. 6. In cross-examination Dr Fu agreed that many of the substances in the deceased had a sedative effect to a greater or lesser extend with drugs such as Codeine, Morphine, Oxycodone, Oxymorphone and their additives and they work on the same opioid receptors . She told the court however that Zpoiclone is a different mechanism therefore not additive in the same way as the others. In any event the levels of this substance ,she said, in the deceased's body were very low. She did not accept that any of the substances in the deceased's blood sample were at a lethal level, even taking into account the additive effects of them all, especially she observed, considering the apparent experience the deceased had with those substances. 7. Dr Fu was also of the opinion that if the deceased consumed 11 Lyrica tablets in the hours before her death the level would be at the lower end of the toxic level for that substance. The result, she said, would be insignificant. This substance was not tested for. She was asked the effect of the various substances on the memory of the deceased and was able to agree that as a class of substances benzodiazepine can affect cognitive function but on the levels found in the deceased's system no such finding could be made as the levels, she said, were very low. Dr Fu concluded as follows: "Based on the information in relation to septicaemia indicated in Professor DuFlou's expert opinion report and in the autopsy report I consider the potentially lethal level of clomipramine and oxymorphone which have been reported in fatalities in addition to the sedative effects from the combination of 7 amino-clonazepam merzadepene and zopiclone may have been a contributing factor to [CC]'s death and the level of these drugs contribution to [CC]'s death is depending on her experience with drugs." 1. As noted above, when considering that experience the level of contributions would be, she said, at a lower level. Dr Emma Goman 1. Dr Emma Goman, an infectious diseases physician and clinical microbiologist. Her evidence was in two parts with cross-examination being delayed as requested by defence. Briefly, Dr Goman is a member of the Royal Australasian College of Physicians, Royal College of Pathologists Australasia. She has a Master of Public Health and Topical Medicine, Bachelor of Medicine, Bachelor of Surgery. Her CV was tendered as exhibit 32 and her qualifications and experience were not challenged. 2. Exhibit 33 contained her report which is dated 11 August 2021. Dr Goman confirmed that sepsis is a clinical syndrome and can be present with or without demonstrable microbial replication in the bloodstream such as a bloodstream infection. Likewise, she said, bloodstream infection can be present without features of sepsis or septic shock. 3. She assisted the Court by telling us that sepsis is defined simply as an infection associated with organ injury which is distant from the site of infection. Septic shock is defined as a subset of sepsis in which the risk of mortality is substantially increased and is characterised by low blood pressure that persists. She said that even a brief period of significant hypotension (low pressure) can be fatal. She continued in her report to discuss the various definitions and consensus definitions of sepsis and explained that the current definition of sepsis and septic shock ,which was revised in 2016, is "a life threatening organ dysfunction caused by a dysregulated host response to infection". The doctor's report then discussed the significant factors in this particular case that would be risk factors or protective factors for the deceased individually. Her observations are consistent with the observations of other expert witnesses. 4. Importantly, Dr Goman opined that there was no validated gold standard for the diagnosis of sepsis either antemortem or post mortem. However, in this case she observed that there were a number of features from which she draw a conclusion that it was reasonably probable but by no means certain that the deceased had sepsis at the time of death. She based her conclusion on the presence of risk factors for sepsis and sepsis related death which included the presence of a significant infection on the back of her hand, the presence of systemic inflammation evidenced by the neutrophils in the small vessels of the heart and lungs, raised C-reactive protein and the raised procalcitonin and the plausibility of rapid demise from sepsis from an abscess on her hand over a period of up to five hours, even without obvious early warning symptoms or necrotising infection. 5. Dr Goman acknowledged in reaching her conclusion that she had taken into account the lack of features of sepsis including the lack of observation of two medical practitioners on a day before her death, the lack of necrotising infection, the negative post mortem blood and spleen cultures collected six days post mortem, the apparent lack of fever, a criteria for sepsis until at least five hours before death and the lack of ischaemic changes in the liver and kidneys. 6. Dr Goman was cross-examined at length on her observations that the opinion that the level of procalcitonin would likely have been higher at the time of death than the measured 2.35 nanograms per milligram as part of the autopsy process. She explained why this was her view and when asked took issue with the published medical review report that was given to her by defence counsel. However, there was no dispute at all that the significant level for the cut-off for procalcitonin when assessing it as being a relevant biomarker for sepsis is over 2ng per millilitre. The measured level for the deceased was 2.35ng per millilitre. Whether the level at death was slightly or significantly higher than the 2.35 level is therefore not relevant. However, a great deal of cross-examination explored this point. Dr Goman was thorough in her assessment as to why the report relied on by defence counsel which was a study by Bojanis and others was not particularly relevant to the deceased's case. She pointed out that a table in the report observed that when neutrophils were present in lung tissue in six of the 25 cases all of those cases were ultimately confirmed death related to sepsis infection. 7. In addition, I observe that nowhere in that study was it suggested that a cut-off level for PCT of more that 2 nanograms per millilitre was not a useful biomarker for sepsis. Further, it was not suggested anywhere in the paper that PCT levels may increase post mortem. Neither the cut-off level nor the measured level appears to be in dispute. This line of questioning was diverting but unhelpful. 8. Dr Goman was also able to explain that more commonly sepsis occurs when a subject has been systemically unwell for some days, however, said this is not invariably the case. Situations, she said, in which rapid onset of sepsis is seen tends to be in young people who are otherwise well and in addition in cases where the subject is taking medication that may reduce any of the fever. 9. This observation is particularly relevant, in my view, to the deceased's presentation. We know, for example, from the autopsy report and from her conversations with others that she was taking both ibuprofen and paracetamol and perhaps she was taking antibiotics. 10. With respect to questions asked about inflammation in the lungs, Dr Goman was clear that the observations of Dr Beer were that microscopic evaluation of the lungs was not specific, there was no pus or inflammation within the lung, itself. She stated simply that the question is whether there is such a presentation within the lung tissue, itself, and if there is not there is no pneumonia. She pointed out that the term "congestion" suggests a neutrophil in the small blood vessels of the lungs therefore this congestion is a marker of a systemic inflammation not local to lungs. Such an observation is therefore, Dr Goman reported, a further marker for sepsis. In summary, Dr Goman confirmed that the most likely cause of death was septicaemia. Defence Experts Professor David Patterson 1. Professor David Patterson is a consultant infectious diseases physician, professor of medicine and director of the Centre for Clinical Research University of Queensland. His qualifications and experience were not challenged. 2. His practice is largely with living patients rather than having significant experience in post mortems. He told the Court he frequently saw patients with upper limb or hand infections. There is no dispute that he is well qualified to provide the report he has. His CV was tendered as exhibit O and his report of 26 April 2021 was tendered as exhibit P. The doctor reviewed the deceased's medical records and the Crown's expert medical evidence as referred to in his report including the most recent reports and articles including the transcript of Dr Goman's evidence. He had access to some police investigative reports including scene of death photographs and summary of medication and packaging. 3. He also had access to the images which were tendered in the proceedings that became exhibit 14 and exhibit 23, and to the autopsy photographs. He did not apparently have the advantage of access to the witnesses' statements referring to CC's complaints and observations of her by lay witnesses prior to her death nor any of the transcripts of evidence in this trial. 4. Prof Patterson observed that Dr Beer concluded that the direct cause of death was septicaemia arising from infection of the right hand. He observed that photographs and videos do not show, he said, convincing evidence of infection of the hand and his evidence in this regard is referred to above. He was alone in this opinion . However, he conceded that autopsy findings on 18 April 2017 were highly suggestive of infection at the site of insertion of the artificial snowflake. 5. He observed that Dr Beer did not collect cultures for micro biological confirmation of infection in hand which he thought to be relevant. However during his evidence Dr Patterson confirmed again that there was no doubt in his mind that the deceased suffered an infection in her hand which was evident in post-mortem observation. 6. Dr Patterson observed in summary that his opinion there was considerable doubt as to the direct cause of death as septicaemia arising from infection of the hand because: 1. There was lack of evidence for sepsis at two visits to the doctors within 24 hours of death. 2. His clinical experience is that hand infections rapidly leading to sepsis are due to necrotising fasciitis or other spreading infections rather than localised abscess. 3. There was a lack of ischemic changes in microscopic examination of the liver and kidneys suggesting there was no prolonged hypo-tension as is typically seen in sepsis. 4. There was no growth of any organism in blood cultures. He observed potential reasons for this but it was a consideration weighing away from the finding of sepsis. 5. There was no growth of the bacteria from respiratory samples. This was accompanied by microscopic evidence of lung infection. He thought that there was a potential for these to have contributed to the increase in bio-markers for sepsis. 1. Dr Patterson based his responses concerning the hand infection from the videos that were available to him. In his report he was less than positive of a finding of hand infection however in cross-examination he conceded that the post-mortem pictures show the hand infected. There is little explanation for this inconsistency other than a suggestion that the hand may have suddenly become infected in the 24 hour period. This is not an observation supported by any other evidence and contradicted by much of it. 2. Dr Patterson's major concern with the autopsy finding of sepsis was that he was not convinced beyond reasonable doubt, or even he said "to 90% that the cause was sepsis". However he was unable to proffer any alternative cause of death and specifically ruled out combined drug toxicity as a major cause. 3. Finally he gave evidence that his view as to whether it was sepsis was 50/50. He did not rule it out and that is why he proposed an unascertained cause of death. 4. I observe that this concession that sepsis may well have been the cause of death includes his belief that the hand was not infected on 10 April 2017 and that two doctors on the 11 April 2017 did not notice evidence of sepsis. Both of these primary observations and conclusions are questionable, as I have referred to in detail above. I will not go through it again. Part of the difficulty, and accepting Dr Patterson's evidence, was the lack of primary information he was given on which to base his opinion. 5. Another difficulty was his lack of experience with post-mortem diagnoses compared to his vast experience with diagnosing potential infections in a living person and avoiding fatality by sepsis or other disease. In analysing reasons given by Dr Patterson having, as he said, considerable doubt as to the direct cause of death being sepsis he was taken to the reasons he gave for this reservation. The first reason there was a lack of evidence for sepsis at the two visits to doctors within 24 hours of death. He relied solely on the statements by those two doctors. He did not have the benefit of their evidence in court. He did not have the evidence from friends, family and neighbours of the deceased who told the court of her presentation in the weeks and then days before her death. Dr Patterson's opinion that a person would not be expected to die from a sepsis infection if she was, as he said, "walking and talking the day before." In cross-examination Dr Patterson was given some information that Natalie Shackleton and family members gave to the court. He dismissed their observation as being "the observations of a lay person" without in my view any real consideration as to what they observed, and whether what they did observe may well have been valid observations. He preferred to rely on the statement evidence of the two doctors who saw her the day before her death, indicating that "doctors would have noticed if a patient was sick and would have taken appropriate action". My observation of the evidence of those two medical witnesses is referred to elsewhere. 6. Suffice to say that I accept the observation of friends and family as being valid and supported observations. The quality of their observations is superior to that of the doctors. 7. When asked how he would have acted if a patient had told him and shown him an infected hand similar to the sort the deceased appeared to be suffering from, he advised the court that he would have immediately advised that person to go to an emergency department in a hospital as her situation was very serious. This observation in reality supports the Crown contention that in failing to do exactly that the accused failed in his duty of care to the deceased. It also supports the observation of the other experts linking the hand infection with the septic full body response. 8. It seems that Dr Patterson placed great weight on the lack of observation by Dr Van der Walt and Dr Stern. I do not. Dr Patterson's opinion is based on flawed primary information. 9. The second reason that Dr Patterson gave for doubting sepsis was his clinical experience is that a hand infection rapidly leading to sepsis is due to necrotising fasciitis or other spreading infections rather than localised abscess. In this regard it is noted that he has no specific experience in post-mortem diagnosis of sepsis and the correlation of procalcitonin in post-mortem examination. His major research relates to the detection and treatment of bacteria in the living, rather than as at post-mortem study. His opinion was based on the material he had access to and the limitations of his experience. He is not a forensic pathologist. 10. Dr Patterson agreed however, in cross-examination, that "there was much more evidence of the hand being the site of infection rather than the lungs", and that the lung infection was "far less significant than the hand infection especially if there was no evidence of focal consolidation in the lungs", which was conceded. 11. He also agreed that the absence of necrotising fasciitis was not an indication that sepsis was not present, thus supporting the evidence of the major Crown witnesses but specifically Dr Goman. 12. His third and fourth reasons for doubting the existence of sepsis as a cause of death was that there was a lack of ischemic changes in microscopic examination of the liver and kidneys suggesting there was no prolonged hypo-tension as is typically seen in sepsis. In addition, there was no growth of any organism in the blood cultures. He observed potential reasons for this but it was a consideration he said weighing away from a finding of sepsis. In evidence he agreed that sepsis can occur without either ischemic changes if the onset of septic shock was rapid, or in other cases. He agreed with the observations of Professor Ellis and Dr Beer on these issues and fairly deferred to their greater experience in assessing post-mortem analysis. 13. He further agreed that the potential use of antibiotics must be considered both on the potential of culture growth and the potential to reduce overall infection. He recognised that not every case of sepsis has a positive blood culture and that the small sample size of blood available may be a consideration. He said he was unaware of the recommended sample time after death was 24 to 48 hours and therefore presumably unaware that a six day delay in sample time may adversely affect any conclusions. . He rightly indicated that he would defer to microbiologist's opinion on the issue of delay and effect that it may have on the growth of bacteria. 14. He stated that he never intended his report to be interpreted that a negative blood culture would rule out a finding of sepsis. 15. His final reason for diagnosing sepsis as a cause of death was the growth of bacteria from respiratory samples and microscopic evidence of lung infection. He said that there was a potential for this to have contributed to an increase in biomarkers seen at autopsy. In evidence, however, he did not suggest that such a localised infection of a relatively small size could account for the entirety of the increase in the measured biomarkers found at autopsy. His evidence was that a lung infection might account for some of it. No other qualified expert suggested that the microscopic lung infection could be responsible for the degree of biomarkers in the post-mortem findings. Professor Patterson did not disagree. 16. I observe that when given the full information in evidence from other professionals, Dr Patterson resiled significantly from his position of doubt that sepsis was a cause of death. Where he did not, he did not have the advantage that I had of comparing the evidence of the two doctors with others who saw the deceased prior to her death. 17. In conclusion Professor Patterson observed that "nothing is a hundred percent in medicine." He referred to the observations only in rare cases such as, he said, a massive heart attack can certainty be given as to the cause of death on post-mortem results. I observe that Professor Ellis gave the same example adding the gunshot wound to the head as being another potential cause of death in a hundred percent certainty. This is not the test that the doctors were asked to consider. 18. Professor Patterson agreed that his instructions for his report included the direction that the standard of proof he ought to direct his comments to was the criminal standard and therefore different to the usual practice he has of looking for the most likely cause of infection and then, in his practice, acting to divert it. He agreed that he structured his report on the basis of being required to consider a direct and certain cause of death and the opinions he gave were within that context. 19. In his clinical practice he has dealt with fewer than ten cases of sepsis and only one that led to death. I find that his report and the evidence provided by Dr Patterson increases the Court's understanding of the features of sepsis and septicaemia but the reservations in his report are based on incomplete information on which to base a conclusion and indeed on less experience and qualifications than the Crown experts. 20. The second expert called by defence was John Farrar. He is a pharmacologist. His CV was marked exhibit Q, indicated that his expertise in forensic pharmacology and toxicology. He was provided with and read some of the witness statements in these proceedings including the autopsy report, the pharmacology report, the statements of doctors and the deceased's medical records. He did not have access to the transcripts of evidence given in court by previous experts. 21. His report was tendered with the sections objected to admitted provisionally as exhibit R. In his report he reviewed the post-mortem examination report and the various certificates of analysis and expert opinion provided by Crown witnesses as detailed in the introduction to his report, exhibit R. He analysed and gave information concerning the substances he found - reported on in the deceased's system and commented on the levels of those substances. He said Clomipramine and its metabolite, he observed, had a long half life and is toxic in large doses. He noted that the metabolite was not tested for, therefore he noted the level of that metabolite was unknown. He made comment on what it might be expected to be but fairly stated this was no more than a guess. He said that overdosage of this substance can cause central nervous system depression, agitation, convulsions and cardiac arrhythmia which can be fatal. 22. He fairly observed that the report of Professor Duflou observed that there was no pathological evidence of agitation, convulsions and cardiac arrhythmia. It would therefore seem that the only relevance of Mr Farrar's observations are in relation to the additive effects of all of the substances and the potential that the combination of clomipramine and its metabolite to cause, as he said, "breathing to stop." He recalled one case where a lower concentration than was found in this case was found to be a cause of death, (para 53 of his report) but ultimately fairly conceded that one case is insufficient from which to draw any conclusions. This finding is commented on above by Professor Duflou. 23. As to other substances in the deceased's system, he observed and reported that Endone was present in a concentration a little above the therapeutic level but on its own would not be of concern, notwithstanding its respiratory depressive effect; another substance with a sedative effect included 7 aminoclonazepam probably showed a level above the therapeutic level anti-mortem. This substance increases the sedative effect of the opiate drugs. Codeine and its metabolite have a mild sedative effect but its concentration was not a concern on its own. Mirtazapine has a sedative side effect he said. Zoplicoe is a sedative and perhaps at a level to suggest it was consumed at a high concentration. 24. Apart from the toxicology results from the post-mortem, he observed that other substances may have been consumed but not tested for. This included pregnenolone (lyrica) perhaps up to 11 tablets and topiramate both of which would have had, he said, sedative or respiratory depressive effects. He opined that if a drug was sedating then tolerance may be developed but he said it is never absolute. He was of the opinion that notwithstanding this observation, the combined effect may be profound. 25. In general he opined that there was not sufficient information to make an analysis of these drugs that may have been in her system and on that basis he said that drug toxicity cannot be excluded as a cause of death. At the same time he acknowledged that he was not qualified to comment on the cause of death. 26. It is observed that Mr Farrar has no medical training or qualifications. He did not suggest he was qualified to comment on the development of septicaemia nor on the cause of death in this case. However, notwithstanding that concession, he told the Court that his view was that the cause was multiple drug toxicity in general. This evidence was objected to but I have admitted it as in reality it exposes the lack of rigour in Mr Farrar's report as a whole. 27. He gave the Court an interesting overview of how a substance such as alcohol can result in respiration depression to the point of death. This was irrelevant to the current case as there was no alcohol found in the deceased's system. Mr Farrar could not point to any pathological evidence to support a finding of respiratory depression related to cause of death which is how he described the mechanism of death if caused by drug toxicity. I observed the more he was challenged in relation to the substance of his findings the more belligerent but less persuasive he became. 28. He further observed that many of the substances in the deceased's system also may affect in a detrimental way her ability to recall accurately events that she was discussing with others. He agreed that most of the drugs in her system were those usually taken for pain relief. Those that were sedatives were, he agreed, likely to be taken to sedate herself so she could sleep. 29. In summary Mr Farrar's evidence was contradictory. He remained of the opinion there was insufficient toxicology results to exclude combined drug toxicity as a cause of death, however conceded several times that he was not qualified to comment on the cause of death which he eventually defined as being the mechanism of death. He noted that he was not qualified to comment on the development of septicaemia by the deceased nor indeed any cause of death. His evidence is of little use in the deliberations I must undertake. Dr Richard Byron Collins 1. Dr Richard Byron Collins is a consultant forensic pathologist. He has appropriate medical and pathology qualifications and his CV was tendered, (exhibit U) and his report, (exhibit S) without opposition. He currently works in a private consultancy practice in forensic pathology. His qualifications and experience were not challenged although noted that his post-mortem experience has been limited in the past six years. 2. Dr Collins had available to him all of the relevant reports including the relevant Crown expert reports, videos of the procedures and other images taken on 10 April 2017 and the findings and investigation of police that led to the autopsy report. He had access to all Crown expert reports and defence expert reports, evidence from those experts and a summary of the evidence given by lay witnesses who observed the deceased at the time prior to her death . This information was marked exhibit V. 3. He also viewed the microscopic slides prepared from samples of tissues and organs of the deceased. His report was, I observe, short and largely devoid of the reasoning he used to produce his opinion. Dr Collins observed that notwithstanding the poor quality of the photographs he was of the view that the photographs apparently taken on 8 April 2017 was consistent with an underlying hand infection. He observed that by the time the autopsy was undertaken the infection was, he said, well established and probably had been developing for greater than one week. He was given some information suggesting that trauma from a dog may have been associated with the hand injury and he discounted it as irrelevant. This observation suggests to me that the hand infection occurred, as Dr Collins said, not as a result of external influence but internally as a result of the process involved in the implant procedure. I observe that this observation is consistent with the evidence of the lay witnesses who observed and spoke to the deceased in the week prior to her death. 4. Dr Collins observed that there was "a reasonable possibility that she was suffering from sepsis at the time of her death but did not believe that septic shock was likely". He observed that the identification of markers of acute inflammation in a post-mortem sample of her blood is consistent with the presence of inflammation in her body although not necessarily diagnostic of life threatening septicaemia. His report concluded that there is no hard evidence to support the diagnosis of the presence of septicaemia at or about the time of CC's death particularly in the absence of positive blood culture, although he observed and commented on a number of factors, which could prevent or decrease bacterial growth, such as delay in sampling or use of antibiotics. I pause to observe that this is the observation of all of the properly qualified expert witnesses. 5. Dr Collins confirmed that the markers of acute inflammation, namely CRP and PCT is consistent with the presence of inflammation or infection in the deceased's body although he said not necessarily diagnostic of life threatening septicaemia. He further indicated that the timing of the sampling, six days post‑mortem, the diagnostic significance had to be interpreted with caution. The delay, he said, may mean that the levels might not be reflective of the level at death. He did not suggest, however, that the levels would be lower at death than they were at the time of sampling. 6. Dr Collins was critical of the lack of brain microscopic examination which may have, he said, confirmed the cause of death. He indicated that it was not possible to indicate whether or not septicaemia was a substantial and significant cause of death and in the alternative the same difficulty is applicable to mixed drug toxicity. He was therefore of the view robustly, he said, that the cause of death was unable to be determined. He agreed there were features consistent with septicaemia but doubted that septicaemia progressed to septic shock. He commented that these difficulties are likely related to the time delay between the performance of the post-mortem examination on 18 April and the death on 12 April. 7. However, Dr Collins concurred with all other qualified opinion in relation to the treatment of septicaemia and the earlier the institution of appropriate medical management the greater the potential for return to normal health, although he was unable to say for sure if medical attention would have resulted in the deceased's recovery. 8. With respect, this is an obvious conclusion in the circumstances. 9. In cross-examination Dr Collins agreed that if an assumption was made that the infection on the back of the hand was in due course the cause of the spread of the infection, then there could have been benefit to treat the infection. He suggested intravenous antibiotics may have assisted. 10. He concurred that the image on the back of the hand taken 8 April 2017 showed mottling consistent with infection and that on reflection, a review of the samples, it confirmed infection. He observed that the crusted area below the index finger was most likely an ulceration. Microscopic examination confirmed that the infection had been going on for days and was, he said, well established. He observed evidence that the body was trying to mount a healing response in reference to the levels of procalcitonin and neutrophils. 11. Finally Dr Collins confirmed that there was a reasonable possibility that the presentation of the deceased showed sepsis infection but was not prepared to confirm septic shock. He observed that there was no evidence of damage to major organs and as the mechanisms of death includes a reaction to hypotension damage is usually expected. In evidence he reluctantly conceded that it is not always seen and he was unaware of research on this issue. This line was not pursued . 12. He saw the engorgement of small vessels with neutrophils. He concurred with Dr Beer that the conclusion on such observations is a subjective interpretation. He said that if they had all been engorged then the conclusion of septicaemia would have been more convincing but did not suggest that this observation ruled out organ damage. His final observation that he was not able to say what the sole cause of death was. He resolved therefore that it was undetermined, while not excluding life threatening septicaemia as a possibility. 13. He did not have access to all of the lay witnesses' evidence but he did have a summary of relevant parts of it. He did not have the advantage I had of assessing that evidence opposite the doctors' evidence. Dr Collins' experience in recent years of examining autopsy findings has been more limited than either Professor Duflou or Dr Ellis. He has in the past conducted many autopsies but only required to undertake private examinations and undertakes about six a year in his current position. He has not been involved in the diagnosis of sepsis related death diagnosis since 2016. This is a relevant period as in 2016 an improved definition and an array of diagnostic tests and researches concluded that there was a new definition of sepsis as being an improved method of diagnosis especially at autopsy. This is called Sepsis 3 and was referred to in the background information from Dr Goman. 14. Dr Collins was able to accept on that basis that the presence of elevated CRP is of interest but observed that it was only moderately raised. He suggested that for procalcitonin any level greater than 2 would be consistent with sepsis. I observed that the measurement was 2.3. He was unaware of the significance of delay on those measurements. He was similarly happy to agree that for sepsis to occur a local site of infection was required for the whole process to commence. He agreed that the hand infection had been present for several days on his observation. He did not seem to accept the significance of this finding. 15. He was not able to totally agree that the neutrophils in the heart had clinical significance as he said not every vessel was engorged and observed that engorgement was not present in some of the other major organs. He was however unable to point to any clinical or other research to support his proposition. He agreed that neutrophils in the lung tissue was an indicator of sepsis. 16. Importantly, he pointed out that every case was different. If the person was still alive observations of respiration and organ function could be measured. In a post mortem situation this was obviously not possible. He suggested that a battery of tests would be performed on a living person in order no doubt to identify the nature of the infection so as to properly combat it. He conceded that that type of testing is not possible on a deceased person. 17. Finally Dr Collins agreed that the absence of observation of liver or kidney damage was not determinative and agreed that it takes some time for blood pressure observations to have that effect. He conceded the research by Kumar and others that rapid onset mechanism for sepsis and the absence of hypoxic change to organs does not negate disease. Dr Collins was unable to suggest any other cause of death consistent with the findings. These concessions were subtle concessions and in effect supported the final conclusions of Professor Duflou, Professor Ellis and Dr Goman that the most likely cause of death was septicaemia associated with the infected hands. 18. I do note that Dr Collins was given the summary of the evidence of the lay witnesses, Shackleton and others, which became exhibit V after his report was prepared. He commented on that in his evidence but it is obvious, comparing his report to his oral evidence that reading that summary of evidence did not alter his original conclusions, that is, that the deceased was well on 11 April. He obviously gave the lay observations no weight at all in his reconsideration. I disagree that their evidence or the personal observations of the deceased prior to her death are not important. Each of the other experts placed weight on the presentation of the deceased in the days before her death in one way or another. 19. Dr Collins was one of the major witnesses who had access to this evidence given in Court but he did not obviously give it any weight. This lack of consideration by Dr Collins diminishes in my view the reliability of his findings. Causation 1. I have made findings above as to the duty of care owed by the accused too the deceased. I have made findings as to the breach of that duty and how it was breached. I have made findings as to the degree of seriousness or negligence of that breach. In considering whether the Crown have proved beyond reasonable doubt that an act or omission of the accused substantially or significantly contributed to her death, I acknowledge that it is not sufficient that the act or omission was merely coincidental with the death of the victim or was insignificantly connected with it. 2. In considering the cause of death I have discussed at length the evidence of all of the experts. 3. Mr Farrar's evidence cannot be accepted for the reasons noted above. In my view reliance can be placed on the individual and combined force of the evidence of Dr Beer, Dr Goman, Professor Duflou and Professor Ellis. All of those pathologists including ultimately some concessions by Dr Patterson and in part Dr Collins agree that sepsis, a mechanism of death, was operating and it was in effect a substantial cause of death. Drug toxicity may have been a contributing factor. 4. In particular, the evidence of the Crown witnesses, especially Professor Ellis, Professor Duflou and Dr Goman, was compelling and well-reasoned and supported by research and expertise. The fact that a pathologist, Dr Collins, remained relatively neutral suggesting that the cause of death was unascertained has been discussed. 5. No expert witness with appropriate qualifications that enabled a cause of death to be considered suggested a cause of death that was anything other than sepsis associated with the hand infection and ultimately all of the pathologists, even those called by the defence, confirmed that sepsis as a cause of death was consistent with the autopsy findings, was consistent with the infection at the back of the hand and that no other cause was. 6. The unascertained opinions that I have referred to above do not detract from the affirmative opinion of Professor Ellis, Professor Duflou and Dr Goman. Their substantial experience, study and research underpin a reliable basis for acceptance of their considered opinions. In particular, the evidence of Dr Goman which is supported by significant study, research and reasoning, is entirely acceptable. 7. Professor Patterson ultimately gave evidence that he did not suggest positively any other cause of death able to be found on the evidence that he saw. I have already made comment on the lack of information that he was given with which to draw a conclusion. 8. Dr Collins was an impressive witness in giving evidence but was unable to support his opinion by any recent peer review research and his recent autopsy experience was limited and non-specific. Ultimately his findings that the cause of death was undetermined was unable to be sustained under cross-examination and ultimately he agreed there was no other cause of death consistent with all findings. 9. Where any expert expressed a doubt as to cause of death a major consideration was the deceased's presentation in the days prior to her death. That was the subject of very convincing evidence in the hearing before me. The expert witnesses did not have the advantage that I had of assessing that evidence. I find that in the days before her death CC's presentation was that of a very sick individual consistent with an infection that was becoming uncontrolled. She was in significant pain and presenting as unable to stay awake, notwithstanding her complaint of not being able to sleep. She was suffering extreme pain from her hand and was presenting as exhausted and generally unwell. 10. This evidence supports the findings of the experts that an infection was likely to be extending beyond her hand within that limited time frame. It is not necessary to find when the hand infection became the generalised blood infection resulting in death. It may have been within the five hours immediately before her death or some greater time before it. The lack of ischaemic changes to her organs is not conclusive by the way. A contributing cause of death may have been drug toxicity which, as explained by Dr Goman, may have contributed to the speed of her demise. 11. I have considered again the requirement for the Court to be very careful drawing inferences when considering matters to which the Crown obligation is to prove its case beyond reasonable doubt. 12. Having made findings that a significant or substantial cause of death was sepsis then the Court looks to the further issue of causation. That is with respect to the accused's duty of care, the breach of that duty of care as I referred to above. The act of the accused were; 1. To insert the implant under the deceased's skin on or about 20 March 2017. 2. To do so in such circumstances that it was likely that the proper care was not taken to avoid future infection. 3. When advised that the hand was presenting as infected he did not refer the victim for proper medical attention. 4. He advised her that the hand was not infected and then proceeded to manipulate the implant in such a way as was likely to cause further spreading of infection. 5. Notwithstanding the presentation of infection already existing, he inserted more implants under the skin at the thumb. The insertion of those further implants would have been likely to increase the risk of infection especially as I note in the circumstances that those implants were inserted, which again was without proper care to avoid further infection without proper antiseptic care. 6. Further on 10th and 11th April 2017, he avoided telling the victim to seek proper medical attention as a matter of urgency. He told her, she should not worry and to take further migraine medication for the pain. 1. His breach of duty of care was so significant as to be considered a gross breach, deserving of a criminal response. His actions and omissions played a direct causative path in CC's death. All of these by actions by the accused ,as I have noted above operated singularly or together as a substantial cause of harm suffered by the victim, ultimately her death. 2. There was no intervening act. There is no conclusion from all of the evidence before the Court that is consistent with accused's innocence. 3. I find that the death of CC was initially as a result of an infection to the hand which developed into septicaemia was a significant or substantial cause of death. The accused breach of his duty of care was at such gross level that his acts and omissions were causative of her death to a significant or substantial degree. 4. I am for those reasons satisfied beyond reasonable doubt that the accused caused the death of the deceased and therefore return a finding of guilty on count 3. ********** Amendments 12 April 2022 - paragraphs [352], [371], [564], [565] and [569] - anonymisation of name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2022