R v Foster [2021] NSWDC 725

Citation: R v Foster [2021] NSWDC 725
Court: District Court of New South Wales
Date: 27 August 2021
Judge: Bourke SC DCJ

Background

The accused was a senior nurse at Kaoriki House, a 12-bed psychiatric inpatient ward within Morisset Hospital. The complainant was a patient there from March 2018 to April 2019, diagnosed with schizoaffective disorder and a rare degenerative neurological condition called Pantothenate Kinase-Associated Neurodegeneration (PKAN). The accused was tried by judge alone on eight charges arising from alleged sexual contact with the complainant during her admission.

The charges fell into three categories under the Crimes Act 1900: sexual touching of a person with a cognitive impairment, committing a sexual act toward such a person, and sexual intercourse with such a person. Because the complainant's cognitive impairment was not in dispute and the accused was her treating nurse, consent was not an element the Crown was required to prove. The only live question on each count was whether the alleged sexual act had actually occurred.

The accused admitted that his semen ended up on the complainant's breasts on the night of 28 January 2019, but gave a different account of how that came about. He denied all other alleged conduct.

Legal Issues

Whether the complainant's evidence was sufficiently credible and reliable, given her mental health history including psychotic episodes, delusions, and hallucinations, to prove each charge beyond reasonable doubt
Whether the accused's version of events on 28 January 2019, that the complainant had invited and initiated the sexual act, should be accepted or could not be excluded as a reasonable possibility
Whether the forensic, circumstantial, and complaint evidence corroborated the complainant's account on any or all counts
How tendency evidence (or, alternatively, evidence of actual state of mind) from proved conduct applied across the multiple counts
Whether the principles in R v Markuleski required a finding on one count to inform the assessment of reasonable doubt on others

Decision

Credibility of the complainant: The court found the complainant to be a credible and reliable witness despite her significant mental health history. She presented as logical, reasoned, and articulate over two days of evidence, answered questions directly, acknowledged matters that did not favour her, and showed no obvious tendency to embellish (at [80]-[82]). The court nonetheless gave itself a formal unreliability warning under s 165 of the Evidence Act 1995, noting documented episodes of psychosis, delusions about demons and fairies, and the false belief that she had received electroconvulsive therapy at Kaoriki House (at [84]-[88]).

Rejection of the accused's evidence: The court rejected the accused's claim that he had no sexual interest in the complainant. His own admission that he ejaculated onto her breasts, an undisputed fact confirmed by forensic evidence, was objectively inconsistent with being entirely indifferent to or unattracted by her (at [70]-[71]). The court also rejected his evidence that the complainant had previously exposed her breasts to him and proposed filming a sexual encounter, finding no support for those claims in witness testimony or clinical notes, and characterising them as an attempt to construct an exculpatory narrative (at [72]-[73]).

Count 8 (sexual touching, 28 January 2019): The court was satisfied beyond reasonable doubt that the accused rubbed his penis between the complainant's breasts until he ejaculated. Corroborating factors included: the DNA evidence matching the accused on a breast swab and the complainant's singlet top; the complainant's immediate distressed phone calls to her daughter that evening; her deliberate collection of semen on her shirt, marked with lipstick for identification and posted to her daughter; bruising on the complainant's chest consistent with her account; the discovery of a lighter bearing another person's name in the spare room where the assault occurred, consistent with the complainant's account of losing her lighter there; and evidence that the accused had been giving the complainant extra cigarettes, consistent with her account of him using cigarettes as hush money (at [103]-[115]).

Counts 6 and 7 (sexual intercourse, vaginal and oral penetration): The court acquitted on both these counts. No forensic evidence supported penile-vaginal or oral penetration, and the complainant's language in her initial police interview, using words such as "began" and "started" in relation to vaginal penetration, was more equivocal than her descriptions of other conduct. The complainant had not mentioned oral penetration in her video-recorded police interview at all. The accused's evidence that he would not have risked penetration due to his belief that the complainant had a hepatitis infection, while not fully corroborated, provided sufficient support to leave a reasonable doubt on these two counts (at [117]-[125]).

Counts 1 to 5 (sexual touching and sexual act across three earlier incidents): The court convicted on all five remaining counts, relating to the Christmas Eve incident in the courtyard alcove (count 1), fondling of the complainant's breasts and vagina in the open courtyard (counts 2 and 3), and fondling and self-exposure in the tribunal room (counts 4 and 5). The court reasoned that the complainant's credible account, taken together with its finding that the accused had a demonstrated sexual interest in the complainant, and various pieces of supporting circumstantial evidence, established each of these offences beyond reasonable doubt (at [127]-[131]).

Orders Made

The accused was convicted of counts 1, 2, 3, 4, 5, and 8 (sexual touching and sexual act offences)
The accused was acquitted of counts 6 and 7 (sexual intercourse by penile-vaginal and oral penetration)

Key Takeaways

Forensic DNA evidence played a central role in this verdict. Its presence on both the complainant's body and her clothing provided objective corroboration for the complainant's account of the count 8 incident, and enabled the court to reject the accused's claim of complete indifference toward the complainant as internally inconsistent with his own admitted conduct (at [58], [70]-[71], [103]).
A judge sitting alone must direct themselves as if directing a jury, including on unreliability warnings under s 165 of the Evidence Act 1995 where a complainant has a documented history of psychosis or delusion. The existence of such a warning does not preclude a finding of credibility; the court assessed the complainant as reliable on the core facts notwithstanding periods of clear mental disturbance (at [84]).
Under the principles in R v Markuleski, a reasonable doubt arising on one count must be actively considered in the assessment of other counts where the complainant is an essential witness across all of them. Here, the acquittals on counts 6 and 7 were factored into the analysis of the remaining counts, though they did not displace the convictions (at [12], [126]).
Where an accused admits to a sexual act with a complainant but disputes the complainant's account of how it arose, the court will assess objective evidence including the complainant's contemporaneous conduct, such as distressed phone calls, deliberate evidence preservation, and consistent complaint to multiple people, in determining whose version is more probably true (at [104]-[110]).
In a judge-alone trial, tendency reasoning and reasoning from an established actual state of mind are doctrinally distinct. Where the court finds that proved conduct reflects an actual sexual interest rather than a probabilistic tendency, it may use that finding to inform consideration of other charged conduct, while remaining alert to the prohibition on reasoning from general bad character (at [17]-[20], [116], [128]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- Elomar & Ors v R [2014] NSWCCA 303
- Jiang v R [2010] NSWCCA 277
- R v Markuleski [2001] NSWCCA 290