Slash: Witness 1 Prosecution

Slash: Witness 1 – Prosecution

Victim

You were born on the 1st of November 1998.

On the 5th January 2015, whilst your parents were overseas on an extended holiday, you visited Dr Nick’s surgery and had your tongue split.

You wanted to split your tongue because you had seen that the lead singer of your favourite band had recently had his tongue split – you saw this in Rolling Stones Magazine.

You asked Dr Nick about the procedure and in particular you asked whether splitting was substantially different to having the tongue pieced.

You recall Dr Nick stating that splitting takes longer and involves cutting the tongue whilst piecing is very quick and simply involves putting a hole in the tongue.

You were not informed that a split tongue does not simply grow back. You assumed that it would simply grow back and was therefore easily reversible

You cannot recall Dr Nick taking any notes on a computer or with a pen and paper

You cannot recall Dr Nick asking you any questions other than whether you were sure that you wanted to proceed.

The consultation lasted no more than three minutes.

Five days after having your tongue split your brother drove you to a body piercing shop where, at your request, the proprietor inserted a ring into your left nipple.

You look similar to your brother – you both have dark hair and brown eyes but you are considerably shorter – you are only 1.6m, your brother is 1.8m.

You do not recall what you and your brother were wearing on the day in question.

Your brother is your older brother – he is 20 years old.

You do not recall what driving plates were on the car while your brother was driving (ie you do not recall if they are green or red)

On the 15thJanuary your parents returned home from their holiday and upon discovering your split tongue and pierced nipple, they took you to the police station where you gave a statement.

Edge: Witness 2 - Prosecution

Older brother

On the 10thJanuary you drove your younger brother to the city where you parked outside a body piercing shop. Your brother was in the passenger seat.

You look similar to your brother but you are 1.8m tall and he is 1.6m tall. You were wearing a bright red t-shirt and shorts. Your brother was wearing jeans and a black t-shirt.

Although you are on your green provisional driving plates you recall using the red plateson that day because your green plates were in another car.

You and your brother got out of the car at the same time and you both walked across the street towards the shop and stood looking through the shop window.

You recall that the shop was still being renovated but there was an open sign on the door.

Your brother went in and you waited outside but you could hear some of the conversation between the shop owner and your brother.

You heard the shop owner say that he would pierce Slash’s nipple provided that Slash promoted the shop by telling all his friends about the new body piercing shop.

You did not hear anything concerning age or whether or not your brother signed any document or indicated his consent. However, you did not hear all of the conversation because there was a lot of traffic passing the front of the shop.

Dr Nick Witness 1 – Defendant

You have recently opened a cosmetic surgery clinic specializing in ‘body modifications’.

You recall that on the 5thJanuary, Slash attended your surgery and requested to have his tongue pierced.

You also recall that as Slash appeared quite young, you asked him lots of questions to ascertain whether he understood the nature of the procedure requested.

You have a checklist of information that you ‘tick off’ while discussing any cosmetic or body modification procedures with a patient. You do not recall the exact conversation with Slash about the nature of the procedure, what it involves and whether the procedure is reversible (you have performed over 200 tongue splitting procedures in the last 6 months) but you are sure that you would have gone through each item of the checklist before agreeing to undertake the procedure.

One of the items on the checklist is whether the procedure is reversible – there is a pencil mark on the checklist to indicate that you discussed this with Slash. The procedure is reversible but is very painful as it involves sewing the tongue back together (it does not grow over and rejoin).

You recall that Slash was very keen to have his tongue split and that your performed the procedure with utmost care.

Mr Lance: Witness 2 – Defendant

Body piercing shop owner and operator

You are short sighted and you have recently opened a new business as the owner and operator of a body piercing shop.

On the 10th of January you were working on the refurbishment of your new shop when you saw a car park across the road and one person get out.

You cannot recall what that person was wearing but he had dark hair and was about 1.8m tall

You recall seeing green provisional plates on the car and you are sure theperson alighted from the driver’s side of the car.

Shortly after, a young man came into the shop and started asking about having his nipple pierced.

You recall telling the young man that your shop had not yet opened and he should come back in two days.

You also recall that the young man was rather persistent and after a considerable amount of time you agreed to pierce his left nipple for free.

You were not concerned about whether the young man was 18 years or older as you were sure that he was driving a car with green plates.

After the piercing you semi-jokingly asked the young man to tell all his friends about the wonderful new body piercing shop that was opening.

You dispute the fact that there was an open sign in the door.

CHARGE SHEET

Dr Nick has been charged with unlawful wounding (s 323 Criminal Code 1899 (Qld))

Mr Lance has been charged with the prohibited body piercing of a minor (s 18 of the Summary Offences Act 2005 (Qld)).

Legal issues to consider:

a)Does the splitting of the tongue come within the definition of wounding?

b)Was there consent to the procedure performed?

c)Is tongue splitting a form of surgery to which a person can consent?

d)On the facts have the elements of prohibited body piercing of a minor been met?

e)Can Mr Lance successfully raise mistake of fact and is the fact that he is short sighted relevant to the excuse.

Cases:

Devine (1982) 8 A Crim R 45

R v Patel Ex parte Attorney-General (Qld) [2011] QCA 81

Reeves v R (2013) 304 ALR 251

X v The Sydney Children’s Hospitals Network [2012] NSWCA 320

Gillick v West Norfolk and Wisbech Area health Authority [1986] 1 AC 112;

R v Mrzljak [2005] 1 Qd R 308

Aubertin v State of Western Australia [2006] 33 WAR 87