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Court of Criminal Appeal 9 July 2013

ZHU v R

[2013] NSWCCA 163

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SIGNIFICANCE OF JURY QUESTION APPEAL DISMISSED.

Citation: ZHU v R [2013] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 9 July 2013
Judge(s): Hoeben CJ at CL; Fullerton J; McCallum J

Background

The appellant was a practitioner of traditional Chinese medicine who was tried before a judge and jury on five counts involving three separate complainants. Counts 1 and 2 related to allegations that in January 1994 the appellant twice digitally penetrated a patient's vagina without consent while performing acupressure during treatment for a skin rash. Counts 3, 4 and 5 related to separate allegations of indecent assault and non-consensual digital penetration involving two other patients in 2009, in circumstances where the appellant was said to have touched and penetrated those complainants while purporting to conduct legitimate medical examinations.

The jury convicted the appellant on counts 1 and 2 but acquitted him on counts 3 to 5. He was sentenced to a total term of 2 years and 6 months imprisonment, with a non-parole period of 1 year and 3 months. He was admitted to parole before the appeal was heard.

The appellant challenged his conviction on four grounds, each concerning how the trial was managed or how the jury was directed.

  • Whether the failure to order separate trials for counts 1 and 2 (1994 offences) from counts 3 to 5 (2009 offences) gave rise to a miscarriage of justice, given that the jury acquitted on the later counts.
  • Whether the trial judge erred by failing to direct the jury that the Crown must prove penetration occurred otherwise than for proper medical purposes, as required by the definition of sexual intercourse under s 61H(1) of the Crimes Act 1900.
  • Whether the trial judge erred in refusing to admit evidence of the appellant's professional qualifications and areas of study.
  • Whether the trial judge's direction on good character was deficient.

Decision

Ground 1: Separate trials and tendency evidence. The pre-trial ruling permitted the evidence of each complainant to be used as tendency evidence in relation to the others, on the basis that the appellant had a tendency to sexually exploit female patients while purporting to treat them using Chinese medicine techniques. The Court of Criminal Appeal found no miscarriage of justice arose from the joint trial. The acquittals on counts 3 to 5 demonstrated that the jury engaged in careful individual assessment of each count rather than reasoning impermissibly from tendency evidence alone. The tendency notice and the trial judge's directions adequately managed the risk of prejudice.

Ground 2: Proper medical purpose direction. Under the statutory definition, "sexual intercourse" requires that penetration occur other than for proper medical purposes. The appellant argued the trial judge should have directed the jury on this element, particularly in light of a jury question during deliberations that touched on the issue of clinical intent. The Court rejected this ground. The appellant had given no evidence at trial that per vaginal examination was part of any legitimate treatment for a skin condition around the eye and mouth, and he had specifically denied inserting his finger at all. McCallum J described the notion of a proper medical purpose for such penetration in those circumstances as "frankly ridiculous." Because no evidence properly raised the issue, no direction was required.

Grounds 3 and 4: Qualifications evidence and good character direction. The Court refused leave to rely on these grounds. No error was established in the trial judge's handling of either the appellant's professional qualifications or the good character direction.

Orders Made

  • Grounds of Appeal 1 and 2 dismissed.
  • Leave to rely on Grounds of Appeal 3 and 4 refused.

Key Takeaways

  • A joint trial of counts with different complainants does not automatically produce a miscarriage of justice; a jury's careful differentiated verdict can itself demonstrate that tendency evidence was not applied impermissibly.
  • Where a defendant denies the alleged conduct entirely and calls no evidence to suggest penetration could have been for a legitimate medical purpose, no direction on the "proper medical purpose" element of sexual intercourse is required, even if a jury question touches on clinical intent.
  • The Court of Criminal Appeal confirmed that the "proper medical purpose" carve-out in the definition of sexual intercourse requires some evidential foundation before it must be left to the jury.
  • In dismissing all grounds, the Court affirmed that the adequacy of jury directions must be assessed in the context of the case actually run at trial, not hypothetical defences that were never raised.
  • Sufficient probative value to support admissibility of tendency evidence can exist even where there is a significant gap in time between the alleged tendency acts, though the Crown in this case acknowledged that the 15-year gap weakened (though did not defeat) its tendency argument.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H(1), 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 97

Cases
- Carney v R; Cambey v R [2011] NSWCCA 223
- Dupas v The Queen [2012] VSCA 328
- Gillard v R [2003] HCA 64; 219 CLR 1
- Ith v R [2012] NSWCCA 70
- Madden v R [2011] NSWCCA 254
- Pemble v R [1971] HCA 20; 124 CLR 107
- R v Forsti [2010] ACTSC 85
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v XY [2013] NSWCCA 121
- R v Zaidi (1991) 57 A Crim R 189
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- R v Demirok [1976] VR 244