LAWYERS for a body modifier convicted of killing one woman, mutilating the genitals of another and performing a "tummy tuck" on a third say the women's "informed consent" to the procedures should have been available as a defence in his 2021 trial and his convictions should be quashed.
The landmark two-day all grounds appeal of Central Coast body modifier Brendan Leigh Russell, now 42, began in the Court of Criminal Appeal in Sydney on Monday.
Russell was in 2021 convicted of manslaughter after a silicon snowflake he implanted into a woman's hand at Toowoon Bay in April, 2017 became infected and she later died.
He was also found guilty of causing grievous bodily harm with intent for performing a quasi-medical and "clearly dangerous" abdominoplasty or "tummy tuck" on a 38-year-old woman in November 2016 and mutilating a woman's genitals at a tattoo parlour in Newcastle West in 2015, during which Russell used a branding iron to burn off the woman's labia majora.
Judge Helen Syme said Russell had shown no remorse, acceptance or responsibility for causing the woman's death and disfiguring the two others and jailed him for a maximum of 10 years, with a non-parole period of seven years and six months.
The Newcastle Herald revealed earlier this year that Russell - believed to be the first person in the industry prosecuted in Australia - had lodged an appeal against his convictions and jail term and it was headed for a landmark two-day hearing in the Court of Criminal Appeal.
On Monday, barrister Mark Tedeschi, KC, for Russell, said the legislation relating to genital mutilation was intended only for "ritualistic or traditional acts of genital mutilation performed on children".
And Mr Tedeschi said "informed consent" was an important issue for the CCA to consider and pointed to cases in Australia, New Zealand and the UK where, on appeal, it was found consent should have been made available as a defence.
Mr Tedeschi said one case was a Korean preacher in New Zealand convicted of manslaughter for killing parishioner Joanna Lee during an exorcism.
The preacher, Yong Bum Lee, had his conviction overturned on appeal, with the decision resting heavily on Ms Lee's "consent" to the ritual.
Mr Tedeschi urged the CCA to take the same approach as the New Zealand's Court of Appeal in that case.
Mr Tedeschi said community values in relation to body autonomy had changed considerably over the years, pointing to euthanasia laws and rugby league players participating in the sport despite now knowing the full effects of serious head injuries.
But he said the prosecution intended that "sane, adult persons capable of making decisions" were incapable of lawfully having body modifications done, other than by registered medical practitioners, who he said would never conduct those procedures.
"All of these procedures would amount to an offence because the consent of the client would never amount to a defence to grievous bodily harm or wounding," Mr Tedeschi said.
"It is submitted that this approach does not place significant weight on bodily autonomy and does not accord with values of modern, liberal society."
The appeal hearing continues on Tuesday before the CCA reserves its judgment to a later date.
