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District Court 5 September 2018

R v El-Kheir

[2018] NSWDC 245

Sexual offences
CRIMINAL LAW JUDGMENT JUDGE ALONE TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT CONSENT AT ISSUE FOR ONE COMPLAINANT

Citation: R v El-Kheir [2018] NSWDC 245
Court: District Court of New South Wales
Date: 5 September 2018
Judge: Berman SC DCJ

Background

The accused was a medical practitioner working at a clinic in Coffs Harbour. He faced eight counts on indictment: seven counts of sexual intercourse without consent while the complainant was under his authority, and one count of indecent assault while the complainant was under his authority. All alleged offences occurred during medical consultations with female patients between 2012 and 2014 and involved alleged digital penetration or indecent touching.

This was the accused's second trial. At his first trial in 2016, he was convicted on four counts but the jury could not agree on the remaining eight, which formed the subject of the retrial. The accused elected for a judge-alone trial, consented to by the prosecution.

A notable feature of the accused's position at the retrial was a significant shift from his first trial. At the first trial, he gave detailed evidence denying the acts alleged. At the retrial, he conceded he had no actual memory of the relevant consultations and accepted he may have performed the physical acts without awareness, while continuing to maintain he did not believe he had done "these disgusting things." The court found this inconsistency difficult to reconcile and it affected the accused's credibility.

  • Whether the Crown proved beyond reasonable doubt that the accused performed the physical acts alleged by the complainants
  • Whether the complainants consented (relevant to one count in particular)
  • Whether the complainants were "under the authority" of the accused at the relevant time
  • Whether the accused's actions were voluntary, or whether he was acting in a state of automatism (either sane or insane)
  • If involuntary, whether that involuntariness arose from a disease of the mind (which would result in a verdict of not guilty on grounds of mental illness rather than a simple acquittal)
  • Whether the accused was mentally ill at the time of the offences, specifically whether bipolar affective disorder, potentially exacerbated by fluctuating blood sugar levels from diabetes, deprived him of the ability to reason with moderate composure about the wrongfulness of his conduct (the second limb of the mental illness defence)
  • Whether the accused knew or was reckless as to the absence of consent

Decision

Physical acts and consent. The court worked through a structured question trail for each count. It found, applying tendency evidence and assessing the complainants' credibility carefully, that the Crown had proved the physical acts alleged on the relevant counts. Where consent was in issue, the court found it was not given. One complainant attended a consultation wearing a listening device, and the recording formed part of the evidence considered.

Voluntariness and automatism. The accused argued he may have acted in a state of automatism arising from hypoglycaemia (abnormally low blood sugar) or hyperglycaemia (abnormally high blood sugar) associated with his diabetes, potentially compounded by bipolar affective disorder. The court examined the distinction between sane automatism, which results in a simple acquittal, and insane automatism, which arises from a disease of the mind and produces a verdict of not guilty on grounds of mental illness. The court considered extensive expert evidence on whether the accused's medical conditions could have produced an involuntary state and examined evidence of his strange behaviour during the relevant period. The court concluded on the evidence before it that the accused's actions were voluntary.

Mental illness defence. The accused relied solely on the second limb of the mental illness defence: that, even if his acts were voluntary, bipolar affective disorder (exacerbated by fluctuating blood glucose levels) meant he was unable to reason with a moderate degree of sense and composure about whether his conduct was morally wrong. The court examined the expert psychiatric evidence, noting that one expert expressed uncertainty on key aspects. After considering the evidence about the accused's capacity to reason about the wrongfulness of his conduct, the court was not satisfied that the mental illness defence was established on the balance of probabilities.

Verdicts. Having found the physical acts proved, the actions voluntary, and the mental illness defence not established, the court proceeded to consider the remaining elements of each count, including whether the complainants were under the accused's authority and his state of mind regarding consent.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court applied a detailed structured question trail to navigate the sequenced legal questions in sexual assault prosecutions, encompassing physical acts, consent, authority, voluntariness, and mental illness in turn.
  • A significant credibility problem arose from the accused giving diametrically different accounts at his two trials. The court found it was difficult to conclude anything other than that either his first-trial evidence was invented or his retrial claim of having no memory was false.
  • Where a defendant raises automatism, the court must determine whether the alleged involuntary state arises from a disease of the mind. If it does, the appropriate verdict is not guilty on grounds of mental illness rather than a simple acquittal; if it does not, the defendant is entitled to be acquitted outright.
  • Hypoglycaemia and hyperglycaemia were treated differently in the court's analysis of automatism, consistent with established authority distinguishing external causes (capable of supporting sane automatism) from internal diseases of the mind.
  • The second limb of the mental illness defence, requiring proof that the accused could not reason with moderate composure about the moral wrongfulness of his conduct, was examined against the background of bipolar affective disorder and fluctuating blood glucose levels. Expert uncertainty on this question weighed against the defence establishing it on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 61H
- Evidence Act 1995 (NSW)
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Bratty v Attorney-General (Northern Ireland) [1963] AC 386
- Goodridge v R [2014] NSWCCA 37
- Hill v Baxter [1958] 1 QB 277
- R v Bingham (Court of Appeal, Criminal Division, 8 February 1991)
- R v Cha [2012] NSWCCA 142
- R v Gillett [2005] NSWDC 20
- R v Gourlay [2015] NSWSC 67
- R v Hall (1988) 36 A Crim R 368
- R v Hennessy [1989] 2 All ER 9; [1989] 1 WLR 287
- R v Hilder (1997) 97 A Crim R 70
- R v Parks [1992] 2 SCR 871
- R v Quick [1973] QB 910
- R v Youssef (1990) 50 A Crim R 1
- Sodeman v The King (1936) 55 CLR 192
- Taylor v R (1978) 22 ALR 599
- The Queen v Falconer (1990) 171 CLR 30
- Vallance v The Queen (1961) 108 CLR 56