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Court of Criminal Appeal 21 February 2013

Reeves v R; R v Reeves

[2013] NSWCCA 34

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL CONVICTION CRIMES ACT S 33 MEDICAL ASSAULT WHETHER LAWFUL CAUSE OR EXCUSE

Citation: Reeves v R; R v Reeves [2013] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 21 February 2013
Judges: Bathurst CJ; Hall J; R A Hulme J

Background

The appellant was an obstetrician and gynaecologist who practised at Bega and Pambula District Hospitals between December 2001 and July 2003. He had previously been the subject of disciplinary proceedings before the NSW Medical Board's Professional Standards Committee, which in 1997 ordered him to cease clinical obstetric practice, permitting only conditional gynaecological work. He continued to practice in both fields despite those restrictions.

The appellant was convicted of four offences arising from his conduct toward patients at those hospitals: obtaining a financial advantage by deception (to which he pleaded guilty), maliciously inflicting grievous bodily harm with intent, and two counts of aggravated indecent assault. The grievous bodily harm conviction related to an operation performed on a patient in August 2002, during which he removed almost all of her external genitalia, including her labia and clitoris. The Crown's case was that the procedure was unnecessary and performed without the patient's informed consent. The aggravated indecent assault convictions related to two other female patients.

The appellant sought leave to appeal against conviction on the grievous bodily harm and indecent assault counts. The Crown separately appealed the total sentence of three years and six months imprisonment (with a non-parole period of two years) as manifestly inadequate.

  • Whether the jury was misdirected on the elements of lawful excuse, consent, and intention in relation to the grievous bodily harm charge under s 33 of the Crimes Act 1900
  • Whether the jury directions were more appropriate to a civil negligence action than a criminal prosecution for a violent offence
  • Whether, if any misdirection occurred, the proviso in s 6(1) of the Criminal Appeal Act 1912 applied so that no substantial miscarriage of justice resulted
  • Whether the convictions for aggravated indecent assault were unreasonable or unsupportable on the evidence, having regard to the reliability of the complainants' testimony and the relevance of delay in reporting
  • Whether the total effective sentence was manifestly inadequate, and whether the sentencing judge gave undue weight to subjective mitigating factors

Decision

Grievous bodily harm conviction: Bathurst CJ acknowledged that the trial judge's directions to the jury on consent drew heavily on civil law concepts of informed consent, which are relevant to negligence actions rather than criminal proceedings. However, his Honour concluded that even if the directions contained errors, the proviso in s 6(1) of the Criminal Appeal Act 1912 applied. Given the strength of the evidence, including the complainant's account that she was told only that a small flap of skin would be removed, expert evidence that the surgery was unnecessary, and the remark made by the appellant on the operating table, the court was satisfied no substantial miscarriage of justice had occurred. Leave to appeal was granted but the appeal was dismissed.

Aggravated indecent assault convictions: R A Hulme J considered each count separately. His Honour dismissed the appeal in respect of complainant CA, finding the verdict was not unreasonable and that the trial judge, sitting without a jury, had properly assessed the complainant's evidence and directed himself appropriately on the significance of delayed complaint. In respect of complainant RF, however, the court allowed the appeal, quashed the conviction, and entered a verdict of acquittal. The court found on that count that the evidence did not sufficiently support the guilty verdict.

Crown sentence appeal: Hall J found that the original total effective sentence of three years and six months was manifestly inadequate having regard to the objective seriousness of the offences, in particular the grievous bodily harm offence. His Honour concluded that the sentencing judge gave undue weight to subjective mitigating factors and that the structure of the sentences did not reflect the criminality involved. The court set aside the District Court sentences and resentenced the appellant, increasing the effective custodial term significantly.

Orders Made

  • Leave to appeal against conviction for maliciously inflicting grievous bodily harm with intent granted; appeal dismissed.
  • Leave to appeal against conviction for two counts of aggravated indecent assault granted.
  • Appeal against conviction for aggravated indecent assault (complainant CA) dismissed.
  • Appeal against conviction for aggravated indecent assault (complainant RF) allowed; conviction quashed; verdict of acquittal entered.
  • Crown appeal against sentence allowed; District Court sentences set aside.
  • Appellant resentenced as follows:
  • Obtaining a financial advantage by deception: non-parole period of 1 year 3 months from 1 June 2011, expiring 31 August 2012; parole period of 6 months to expire 28 February 2013.
  • Aggravated indecent assault (CA): non-parole period of 1 year 2 months from 1 June 2012, expiring 31 July 2013; parole period of 4 months to expire 30 November 2013.
  • Maliciously inflicting grievous bodily harm with intent: non-parole period of 2 years from 1 December 2012, expiring 30 November 2014; parole period of 2 years to expire 30 November 2016.
  • First eligible date for release on parole specified as 30 November 2014.

Key Takeaways

  • A misdirection to the jury does not automatically produce a successful conviction appeal: where the evidence against an accused is overwhelming, the proviso in s 6(1) of the Criminal Appeal Act 1912 can operate to dismiss the appeal even if the direction was erroneous, provided no substantial miscarriage of justice resulted.
  • In criminal prosecutions for assault arising from surgical procedures, the relevant consent framework differs from the civil law doctrine of informed consent applied in negligence actions; directing a jury in civil-law terms carries a real risk of misdirection.
  • Delay in a complainant's reporting of a sexual assault does not, of itself, render that evidence unreliable; the court confirmed that a trial judge sitting without a jury is required to direct himself or herself on the significance of such delay and consider it in the overall assessment of the evidence.
  • Where a Crown appeal establishes manifest inadequacy, the Court of Criminal Appeal will resentence the offender afresh, restructuring individual terms to reflect properly the objective seriousness of the conduct rather than simply increasing a global figure.
  • Giving undue weight to subjective mitigating factors at the expense of objective seriousness, particularly in offences involving serious personal violence, can render a sentence manifestly inadequate and susceptible to Crown appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 61M(1), 178BA
- Crimes Amendment Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Medical Practice Act 1992 (NSW)

Cases
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Appleton v Garrett [1996] PIQR P1
- Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 86 ALJR 549
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
- Chatterton v Gerson [1981] 1 QB 432
- Cheung v The Queen (2001) 209 CLR 1
- Collier v R [2012] NSWCCA 213
- Cooper v The Queen [2012] HCA 50
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Darkan v The Queen [2006] HCA 34; (2006) 227 CLR