The Relevant Issues and Applicable Law
There was a ritual whereby holiness would be entered into her body to complete her purification.
Bianca was told to remove the robe and grip handles on the sides of the A-frame. Mother Verity retreated to pray in the other wing of the L-shaped room, out of direct line of sight of the ‘ritual’ that Bianca was undergoing, but a mere 10 metres away.
The Supreme Patriarch had a two-metre branch of a local native tree. One end of the branch was bare. The other end had branching twigs and was covered in spiky leaves and hard, nut-sized seedpods. The Supreme Patriarch started whipping Bianca with the branch with some force, thirty-six times, across her bare back and buttocks. Despite the painkillers, the whipping caused extreme pain and the spiky leaves and twigs had caused severe deep scratches, which were exacerbated by repeated striking on the same spot – some lacerations were bleeding freely. The hard nuts also caused severe bruising. The pain was so great that Bianca struggled to keep hold of the frame.
Following the thirty-six lashes, the Supreme Patriarch told Bianca to lie face up on the bed. Bianca complied, despite the pain of lying on her wounded back. He then proceeded to conduct the ‘holiness’ ritual by inserting his penis into Bianca’s vagina. Bianca raised no objection. Children in the compound were not given any type of sex education and Bianca was completely naive about such matters.
In due course, the ‘ritual’ was over, and Mother Verity took Bianca back to her room. Mother Verity gave Bianca some antibiotic tablets, and disinfectant, and told her to take the tablets according to directions on the packet, shower again, and wash her back immediately thereafter with disinfectant, and then repeat daily.
Mother told her that food and water would be brought to her during her one-week remaining period of purification and that Bianca should use the time to pray.
Bianca was upset, confused, exhausted and in severe pain from the experience and was feeling groggy from the sedatives. As soon as Mother Verity left, Bianca took more sedatives and lay face down on the bed and passed into a deep sleep. When she woke, Bianca felt no better. Under the influence of the sedatives, and in light of the impact of her traumatising experience, Bianca had forgotten about theantibiotics and disinfectant, but she did take more painkillers. Not long after waking, she consumed some food and fluids and took more sedatives.
Facts and Assessment of Liability
After a few days, Bianca started to experience symptoms of sepsis, including chills, fever, nausea, heart palpitations and rapid breathing, and she continued to experience extreme pain. By the following day, Bianca’s thinking was becoming confused and disoriented, and she stopped collecting her food tray from outside the door.
By the 7th day, when Mother Verity came to collect Bianca and welcome her back intothe community as a purified bride-to-be, Bianca was unconscious with a high fever. Her pulse was weak and breathing shallow. Despite being dehydrated, she was covered in sweat. There was dried vomit and excrement in the bed.
Mother Verity noticed that the food had remained untouched, probably for a few days, that no antibiotics had been taken and that the disinfectant had not been used. Clearly, Bianca was extremely unwell. The wounds on her back were visibly seriously infected. The Supreme Patriarch was brought in to advise. He told Mother Verity to clean her up, disinfect the wounds, apply Savlon, keep her cool with wet towels and try to force her to take fluids. He said no-one had ever suffered adverse effects from the ritual before. He believed, as he had at all relevant times, that it was the Deity’s will for Bianca to marry as planned.
Mother Verity took Bianca into a cool shower, cleaned her, and tended her wounds as instructed. Mother cleaned the room and the bed and put Bianca back onto clean sheets. Over the next 24 hours, Mother stayed by Bianca’s side, cared for her, kepther clean, bathed the wounds on her back every few hours, and kept trying to cool her fever with cool wet towels. She managed to get Bianca to take some fluids. The Supreme Patriarch was regularly updated on Bianca’s condition.
The following morning Bianca was even weaker and the fever hadn’t abated. Mother Verity beseeched the Supreme Patriarch to allow Bianca to be taken to hospital. By late afternoon, he agreed, and Bianca was taken to the nearest hospital. Sadly, the sepsis was too far advanced and Bianca died the next day of multiple organ failure. Medical experts opined that the whipping was so severe as to have been likely to leave some minor scars, even without the wounds becoming infected. The whipping was beyond doubt the cause of the sepsis, although the experts also opined that the scepsis was unlikely to have occurred if the antibiotics and disinfectant had been used according to Mother Verity’s instructions.
Discuss the liability of the Paul Marshall, aka the Supreme Patriarch, forunlawful homicide. In your answer, explain why a conviction would or would not be available on each potential basis for liability. (You need not consider Mother Verity’s liability.)
In your answer, please ensure that you identify the relevant issues, state the applicable law, apply it to the facts and draw a conclusion. The above events occurred in NSW.