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Court of Criminal Appeal 8 March 2024

Decision restricted

[2024] NSWCCA 32

Sexual offences
CRIME APPEALS 40 COUNTS OF AGGRAVATED SEXUAL OFFENCES 19 COMPLAINANTS VERDICT OF NOT GUILTY DIRECTED DIRECTED VERDICTS ERRONEOUS

Citation: [2024] NSWCCA 32
Court: Court of Criminal Appeal (NSW)
Date: 8 March 2024
Judge(s): Davies J, Button J, Weinstein J

Background

The respondent, a gynaecologist and obstetrician practising in regional New South Wales, stood trial on a 40-count indictment alleging aggravated sexual offences against 19 female patients. The alleged offending spanned from 1993 to 2015 and involved counts of sexual intercourse without consent and indecent assault (now sexual touching), all said to have been committed during medical consultations. Each offence was alleged to have occurred while the complainant was under the authority of the respondent by reason of the doctor-patient relationship.

The respondent, who appeared unrepresented at trial, defended the charges on the basis that the physical acts were either performed for a proper medical purpose or did not occur at all. Most complainants' evidence was received by way of recordings from a discontinued 2021 trial rather than live testimony.

After the close of the Crown case and the respondent's evidence, the trial judge directed the jury to return verdicts of not guilty on all 40 counts. The trial judge found the Crown had failed to adduce direct evidence from each complainant as to whether she was not consenting, and that the Crown had failed to put to the respondent that he possessed the requisite mental element for the offences. The Crown appealed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW).

  • Whether the trial judge erred in directing verdicts of acquittal on the basis that there was no evidence the complainants had not consented to the sexual acts constituting each offence.
  • Whether the trial judge erred in directing verdicts of acquittal on the basis that there was no evidence the respondent knew the complainants did not consent.
  • Whether the Crown's grounds of appeal involved "a question of law alone" as required by s 107 of the Crimes (Appeal and Review) Act 2001.
  • Whether a new trial should be ordered, given this would be the third trial and the respondent submitted it would be unduly oppressive.

Decision

The Court of Criminal Appeal (Button J, with Davies and Weinstein JJ agreeing) allowed the appeal on all grounds.

On the consent issue (grounds one and two), the Court held that the absence of direct evidence from each complainant about her state of mind at the time of the alleged offence was not determinative. Lack of consent could be readily inferred from the circumstances. Where proper medical purpose was in issue, there was evidence that complainants were operating under a mistaken belief that the relevant act was for medical or hygienic purposes, meaning any apparent consent was superficial only. Where medical purpose was not in issue (for example, being kissed on the lips), there was evidence of lack of consent on its face. The trial judge erred in requiring the Crown to adduce explicit testimony from each complainant that she would not have consented had she known the act was not for a medical purpose.

On the mental element issue (grounds three and four), senior counsel for the respondent conceded before the Court of Criminal Appeal that the trial judge's approach was erroneous. The Court found there was evidence the respondent at least foresaw the possibility that each complainant was not consenting to anything beyond a procedure undertaken for medical purposes. Any failure by the Crown prosecutor to put the mental element directly to the respondent in cross-examination could have been corrected simply by briefly recalling him; it did not warrant directed acquittals.

On the s 107 threshold, the Court found that grounds one and two involved a question of law alone because they concerned the correct identification of the elements of the offence. Grounds three and four involved a readily severable question of law alone concerning the purported legal consequences of a party's failure to comply with a legal rule of practice (the rule in Browne v Dunn).

On whether a new trial should be ordered, the Court acknowledged the respondent's submissions about the oppressive nature of a third trial had "significant force." However, the fact that the question of whether the Crown had proven each count beyond reasonable doubt should have been left to the jury overwhelmingly countervailed against allowing the acquittals to stand. The interests of justice did not permit legally erroneous acquittals to remain.

Orders Made

  • Appeal allowed on all four grounds.
  • All 40 verdicts of not guilty quashed.
  • New trials ordered on all counts.

Key Takeaways

  • A directed verdict of acquittal requires a finding that there is no evidence whatsoever of an essential element of the offence; the threshold is extremely low, and evidence need not be strong to be sufficient.
  • The Court of Criminal Appeal held that lack of consent in sexual offence cases can be inferred from surrounding circumstances and does not require direct testimony from each complainant about her subjective state of mind at the time of the alleged act.
  • Where a patient consents to medical procedures but the acts performed are not for a genuine medical purpose, there is a basis for inferring that apparent consent was superficial only, grounded in a mistaken belief about the nature of the act.
  • A failure by the Crown to comply with the rule in Browne v Dunn (by not putting a proposition directly to a witness in cross-examination) does not necessarily warrant a directed verdict of acquittal, particularly where the deficiency could be corrected by recalling the witness.
  • In ordering a new trial, the Court confirmed that the interests of justice can require a retrial even where it would be the third trial and the respondent argues oppression, provided the earlier acquittals resulted from legal error that prevented the jury from properly determining guilt or innocence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61I, 61L, 61R
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 111

Key Cases:
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74
- Browne v Dunn (1893) 6 R 67
- R v DB [2022] NSWCCA 87
- R v Williams [1923] 1 KB 340
- R v Kitchener (1993) 29 NSWLR 696
- Hofer v The Queen (2021) 271 CLR 351; [2021] HCA 36
- R v Court [1989] AC 28
- R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
- Davern v Messel (1984) 155 CLR 21; [1984] HCA 34
- R v BK [2022] NSWCCA 51
- Harkin v R (1989) 38 A Crim R 296