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Court of Criminal Appeal 13 May 2004

R v Johnson

[2004] NSWCCA 121

Sexual offences

Citation: R v Johnson [2004] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 13 May 2004
Judge(s): Tobias JA, Wood CJ at CL, Hidden J

Background

The appellant was convicted in the Bathurst District Court, following a judge-alone trial before Nield DCJ, of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900. The charge arose from an alleged anal rape of a 16-year-old male in Orange in early March 2001. The complainant gave evidence that the appellant entered his bedroom armed with a knife and performed penile-anal intercourse on him without consent.

The appellant, who was 61 years old at the time of the alleged offence, did not give evidence at trial on legal advice, and no witnesses were called on his behalf. In a recorded police interview conducted after his arrest, he denied being the penetrating party and asserted he had been unable to achieve an erection for some years.

Before trial, the appellant told his legal representatives he had sought treatment for impotence, but mistakenly named his treating doctor. Efforts to locate that practitioner failed, and the trial proceeded without any medical evidence on the point. New legal representatives, retained after a grant of legal aid on appeal, tracked down the correct doctor.

  • Whether fresh evidence of the appellant's impotence met the test for admission on appeal
  • Whether that evidence, if admitted, gave rise to a significant possibility that it would have produced a reasonable doubt about the appellant's guilt, warranting a new trial
  • Whether the Crown could rely on the proviso (that the verdict would not have differed) on the basis that digital penetration, also alleged, could sustain the conviction

Decision

The Court received the fresh evidence provisionally, as the Crown did not concede it met the test for admission. The evidence comprised the appellant's own affidavit, a report from his general practitioner Dr Corbett-Jones (who had consulted the appellant about impotence almost two years before the alleged offence), and a report from genitourinary physician Dr McMahon.

Dr Corbett-Jones' report confirmed the appellant had a significant history of ischemic and coronary heart disease and had raised impotence as his main concern at two consultations in April 1999. Dr McMahon, who did not examine the appellant but reviewed the available material, opined that the appellant's multiple vascular risk factors meant he was "highly likely to suffer a degree of erectile dysfunction" at the time of the alleged offence. Dr McMahon nonetheless acknowledged he could not unequivocally state that the appellant's erectile dysfunction would have precluded penile-anal penetration.

The Court acknowledged the Crown case was strong and that the fresh evidence was not watertight. Neither doctor could state with certainty that the appellant was incapable of achieving an erection on the night in question, and the appellant had at some point obtained a prescription for Caverject, a medication for impotence. Nonetheless, the Court concluded the evidence was of obvious importance and that there was a "significant possibility" it would have created a reasonable doubt about the appellant's guilt.

The Court rejected the Crown's submission that the proviso should be applied on the basis that digital penetration could sustain the conviction. The case had been conducted on the footing that the charge rested on penile penetration, and the trial judge had made no specific finding about the digital penetration allegation.

Orders Made

  • Appeal allowed
  • Conviction and sentence set aside
  • New trial ordered

Key Takeaways

  • Fresh evidence of a medical condition directly relevant to the physical capacity to commit a charged act can satisfy the threshold for admission on appeal where there is a "significant possibility" it would have produced a reasonable doubt in the trial below.
  • A failure to identify the correct treating practitioner before trial, resulting in no medical evidence being led, does not automatically bar the admission of that practitioner's evidence on appeal where the interests of justice require it.
  • The "significant possibility" standard does not require the fresh evidence to be conclusive or even certain in its effect; material raising a genuine question about physical capacity was sufficient here.
  • Applying the proviso requires the court to consider whether a clear finding was actually made at trial on the factual basis proposed to sustain the conviction. Where the trial judge made no specific finding on an alternative allegation (digital penetration), the proviso was not available on that basis.
  • Where a charge is framed and conducted at trial on the basis of a specific mode of penetration, an appellate court will not uphold the conviction by substituting a different factual basis to which the fresh evidence does not speak.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)

Cases
- Gallagher v The Queen (1985-1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259