A trial judge shouldn't get in the way of people's freedom to receive cosmetic body modifications, even if some in the medical field think the procedures are unwise, a lawyer says.
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Self-proclaimed extreme body modifier Brendan Leigh Russell, who goes by moniker BSlice, believes he is the first person in his industry prosecuted in Australia for breaching the criminal code.
He denies charges of manslaughter, female genital mutilation and intentionally causing grievous bodily harm, related to procedures conducted between 2015 and 2017.
The woman who received the "tummy tuck" subject of the third charge, gave consent at least in a simple sense, Russell's lawyer told the NSW District Court.
"Freedom of choice means nothing unless it includes the freedom to make choices that others think are unwise," Michal Mantaj said in his closing address on Thursday.
Mr Mantaj urged against placing weight in a UK appeal court's 2018 finding that consensual body modification could be in breach of that country's criminal code.
He said Judge Helen Syme should avoid usurping the role of parliament in regulating the industry.
Veering away from the UK judgment would protect "bodily inviolability", also known as bodily integrity, and avoid criminalising the act of receiving such procedures.
The judge-alone trial has heard the woman paid $800 to receive the abdominoplasty in Russell's parlour in Erina Fair shopping centre on the NSW Central Coast.
She said she wanted an "Elle Macpherson tummy", which Russell said he could achieve.
But the woman said she was left with little aftercare instructions to cope with her "extreme pain" and severe bleeding.
Against what she says were Russell's suggestions, she sought medical advice, leading to emergency surgery.
That surgical intervention, involving reopening and repairing the original wound, meant Russell couldn't be found to have caused serious scarring, Mr Mantaj said.
Regardless, the scarring wasn't permanent or permanently disfiguring as it was "completely removed" by a second reconstructive surgery in 2020.
That scar, a thin line running from hip to hip, was compared to a caesarean scar.
Far from intending to "spoil" the woman's appearance, Russell sought to improve it, hampering the case for criminal intent, Mr Mantaj said.
The 40-year-old's most serious charge stems from the 2017 death of a woman who had a plastic snowflake inserted in her hand three weeks before her death.
The woman's hand became infected but she refused to seek medical treatment, with the Crown alleging Russell specifically deterred her from such treatment hours before her death.
Mr Mantaj said his client had a duty of care but the court couldn't rely on any evidence that he breached it, let alone grossly breached it.
A "chorus of experts" expressed uncertainty about the Crown's allegation the cause of death was sepsis.
As for a charge of female genital mutilation in 2015, he asked Judge Syme not read the law literally.
The law, which applies to non-medical mutilations of another person, was in fact trying to outlaw mutilations on children for traditional or ritualistic purposes, he said.
A guilty finding would criminalise labiaplasties conducted by cosmetic surgeons for non-health reasons.
"It is, by now, trite law that legislation ought to be construed ... by the mischief it seeks to address," he said.
The Crown says the judge has little reason to find Russell not guilty for the two earlier crimes. It says a guilty verdict is open on the manslaughter charge, pointing to the non-medically trained defendant's approach to a "high-risk" implant procedure.
Judge Syme is expected to deliver her verdicts and reasons in mid-November.
Australian Associated Press
