Cassim v Dahaby
[2025] VSC 26
•12 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01018
| AHMED KAMIL MOHAMED CASSIM | Plaintiff |
| v | |
| LAUREN DAHABY | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 September 2024 |
DATE OF JUDGMENT: | 12 February 2025 |
CASE MAY BE CITED AS: | Cassim v Dahaby & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 26 |
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JUDICIAL REVIEW – Plaintiff convicted of four charges of sexual assault in County Court –Appeal before judge alone – Whether County Court decision legally unreasonable – Decision not legally unreasonable – Whether County Court failed to provide adequate reasons – Whether reasons adequately deal with character evidence – Limited nature of character evidence – Reasons adequately deal with character evidence – Whether reasons merely prefer evidence of complainants – Reasons allow for an assessment that evidence of complainants not merely preferred – Liberato principles properly applied – Whether reasons given for rejecting the evidence of the plaintiff – Reasons not given for rejecting evidence of plaintiff – Reasons inadequate – Douglass v The Queen (2012) 86 ALJR 1086; Ta v Thompson (2013) 46 VR 10; DL v The Queen (2018) 266 CLR 1; Wade v R [2018] NSWCCA 85; Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; Makeham v Sheppard [2020] VSCA 242; Dadashy v Scholte [2021] VSC 246.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Gurvich KC with Ms N Kaye | Avant Law |
| For the First Defendant | Mr J Johnston with Mr R Slattery | Office of Public Prosecutions |
| For the Second Defendant | No appearance |
HIS HONOUR:
The plaintiff, Dr Cassim, seeks to set aside orders of the County Court made on 8 December 2023 which found him guilty of four charges of sexual assault pursuant to s 40 of the Crimes Act 1958 (Vic) (‘Crimes Act’).
On 19 December 2022 a Magistrate found Dr Cassim guilty of seven charges of sexual assault pursuant to s 40 of the Crimes Act. Those charges related to four female patients who were alleged to have been assaulted during the course of medical consultations conducted by Dr Cassim, in the course of his practice as a general practitioner. In the Magistrates’ Court, Dr Cassim was sentenced to 18 months imprisonment with a non-parole period of 12 months.
Dr Cassim lodged an appeal against conviction and sentence in the County Court. The appeal was heard over 12 days in August and September 2023. On 8 December 2023 her Honour, Judge Ellis of the County Court, found Dr Cassim not guilty of charges in relation to two of the four patients and found Dr Cassim guilty of charges in relation to the two remaining patients, who I will refer to in these reasons as Complainant A and Complainant B.
In this proceeding, Dr Cassim seeks to set aside those findings of guilt. He advances four separate grounds for doing so:
(a) That the learned judge erred in concluding that there was no legitimate medical examination of Complainant A and reached this decision by a method or process that was seriously unreasonable or irrational;
(b) That the learned judge failed to give adequate reasons for convicting the plaintiff of the charge in relation to Complainant A;
(c) That the learned judge erred in concluding that there was no legitimate medical examination of Complainant B and reached this decision by a method or process that was seriously unreasonable or irrational; and
(d) That the learned judge failed to give adequate reasons for convicting the plaintiff on charges relating to Complainant B.
The first defendant was the informant in the County Court trial. The second defendant submits to such orders as may be made by the Court in accordance with what are commonly described as Hardiman[1] principles.
[1]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
For the reasons which follow, I do not accept that Dr Cassim has demonstrated legal unreasonableness. I have however found that in one respect, the County Court failed to give adequate reasons. I propose to hear from the parties regarding the consequences which should flow from that finding.
Relevant legislation
Dr Cassim was found guilty of four charges under s 40 of the Crimes Act. That section relevantly provides:
(1) A person (A) commits an offence if—
(a) A intentionally touches another person (B); and
(b) the touching is sexual; and
(c) B does not consent to the touching; and
(d) A does not reasonably believe that B consents to the touching.
Central to Dr Cassim’s application is s 48A(1)(a) of the Crimes Act which provides:
(1) A does not commit an offence against—
(a)Section 38(1) or 40(1) if the sexual penetration or touching (as the case requires) is of a person and is done in the course of a procedure carried out in good faith for medical or hygienic purposes;
The County Court reasons
Judge Ellis’ ruling dated 8 December 2023 (‘the Reasons’) run to 161 pages.[2] They start with an analysis of preliminary and procedural matters (including principles of law) and then analyse the witness evidence in relation to each charge.
[2]Cassim v DPP (County Court of Victoria, AP-22-1569, Judge Ellis, 8 December 2023) (‘Reasons’).
In the case of Complainant A, the Reasons provide a summary of the evidence of:
(a) the complainant;
(b) the complainant’s mother;
(c) an expert called by the prosecution, Dr Rachel Marr;
(d) the informant, Detective Dahaby; and
(e) Dr Cassim.
In relation to the charges relating to Complainant B, the Reasons summarise the evidence of each of:
(a) Complainant B;
(b) Complainant B’s stepfather;
(c) Complainant B’s mother;
(d) Dr Marr; and
(e) Dr Cassim.
The Reasons also provide a summary of evidence which is applicable across all charges, including:
(a) further evidence of Dr Marr;
(b) evidence of another medical expert witness called by the prosecution, Dr Maria Nittis;
(c) further evidence of Detective Dahaby; and
(d) further evidence of Dr Cassim.
Having summarised the evidence, the Reasons then set out the submissions of counsel in relation to each of the complainants in respect of whom charges were laid.
In the introductory section of the Reasons, her Honour notes that, consistent with the requirements of the Jury Directions Act 2015 (Vic), she is required to direct herself, and has directed herself, in accordance with the fundamental general directions that apply in all criminal trials. Later in the Reasons, having considered the evidence and submissions, her Honour sets out in some detail the directions applicable to the evidence.
This aspect of the Reasons starts with a reminder of fundamental principles, including:
(a) the presumption of innocence and proof beyond reasonable doubt;
(b) the need to consider each charge separately; and
(c) given a previous ruling refusing an application to rely on tendency reasoning, the need to avoid using evidence to reason that Dr Cassim had a tendency to act in a particular way or have a particular state of mind.
The Reasons then deal with directions as to the drawing of inferences, a ‘Liberato’ direction, Dr Cassim as a witness, Dr Cassim’s good character, previous representations, prior inconsistent statements, differences in complainants’ accounts, elements of sexual assault, directions on consent and belief in consent and ‘misconduct’ evidence. Dr Cassim does not contend that any of these directions as to the approach to be taken to the evidence were in error. Rather, his contention is that in her consideration of the evidence, her Honour has misapplied or failed to apply those directions in the manner required.
In the resolution of this proceeding, three directions are of particular significance:
(a) the Liberato direction;
(b) the direction regarding Dr Cassim as a witness; and
(c) the direction regarding character.
I will consider those aspects of the Reasons further below.
Having set out the directions applicable to the evidence, the Reasons then make findings of fact relevant to the charges and conclude with the verdicts of:
(a) not guilty in relation to the charges in respect of two of the complainants and one charge in respect of Complainant B; and
(b) guilty in relation to the charge in respect of Complainant A and three charges in respect of Complainant B.
Principles regarding legal unreasonableness
Dr Cassim accepted that the test for legal unreasonableness is stringent. The parties agreed as to the principles which, for present purposes, may be summarised as follows:
(a) the court will only intervene where the decision ‘could not have been reached if proper reasoning had been applied… in the particular circumstances’;[3]
[3]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 573 [83] (Nettle and Gordon JJ).
(b) where a conclusion lacks an evident and intelligible justification it may be considered unreasonable;[4]
[4]Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332, 367 [76] (Hayne, Keifel and Bell JJ).
(c) ‘[i]f probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion’;[5]
[5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131] (Crennan and Bell JJ).
(d) species of decisions which will be unreasonable include:
(i) if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion;
(ii) if the decision was simply not open on the evidence; or
(iii) if there is no logical connection between the evidence and inferences or conclusions which are drawn from it.[6]
[6]Ibid 649-650 [135].
Here, the plaintiff says the Reasons are unreasonable in the relevant sense because a proper analysis of the evidence left open only one conclusion, which was that in respect of each of Complainant A and Complainant B, the prospect that the alleged touching had been carried out in good faith for a medical purpose could not be excluded beyond reasonable doubt.
Unreasonableness – Complainant B
At the time of her medical consultation with Dr Cassim, Complainant B was 18 years old and in the midst of undertaking Year 12 exams. She had been experiencing pain and swelling in her left knee and wished to obtain a medical certificate to exempt her from wearing school uniform in her exams.
Complainant B gave evidence that during the course of her consultation with Dr Cassim, on four separate occasions he touched her external genitalia each time for a minute or so in a motion she variously described as ‘poking and massaging’ or ‘poking and pressing’. Dr Cassim was charged in respect of three of those occasions. Her Honour’s findings in this regard are as follows:
I consider that [Complainant B] was very clear in her evidence about the way in which she said the appellant moved his fingers up her inner thigh and underneath her outer thigh to her groin area and her vagina, which is the subject of charge 3. She clearly described that the appellant used his hands to touch her labia while she was on her back and that using his fingers he made a poking massaging type motion on her labia for at least a minute or so.
She was also clear in her evidence that he did the same on her right leg poking and pressing in a circle type motion up her inner thigh to her labia and vagina area poking and pressing asking if it hurt. This was over her tracksuit and went on for a minute or so. This is the subject of charge 8.
Similarly, with respect to charge 9, the complainant was clear in her evidence that whilst on her stomach, the appellant moved his hands up her leg until he reached the buttocks area and began pressing around her hip underneath. She described that he then pressed her inner thigh touching her labia. He was poking and pressing using his index finger and middle finger moving in a circular motion. He asked her whether it hurt as he pressed her labia. She said that he pressed on this area for at least a minute or so. He then did the same thing on the right-hand side although this is not the subject of a specific charge.
I found the complainant’s evidence about this touching to be credible – in relation each of these 3 allegations.
Her Honour then dealt with the evidence of Dr Cassim in the following manner:
Dr Cassim disputes that he intentionally touched the complainant on the external genitalia. In his evidence, he did not accept that he touched her vagina or labia. He said he did not go to the genital area. He referred to the way in which he might conduct an examination when hip pain is reported, and this might include palpating the front anterior aspect around the groin line. The purpose of examining the inguinal zone is to palpate to the area where there is no pain. He cannot recall whether he went to the femoral triangle but that would be the maximum point. He gave evidence that he did not touch the inner thigh and would only have touched the back of the thigh.
Her Honour’s conclusion regarding the touching is in the following terms:
Despite Dr Cassim’s evidence that he did not touch her in this area, I accept the evidence of [Complainant B] in relation to the manner in which she was touched on the external genitalia. I accept this beyond reasonable doubt. The touching described is consistent with an intentional touching and accordingly I exclude that it was merely incidental or inadvertent touching. I do so given the duration of the touching in each instance as described by [Complainant B]. I am satisfied beyond reasonable doubt that there was an intentional touching of the complainant’s external genitalia.
Her Honour then considered whether or not the touching which she found had occurred was done in the course of a procedure carried out in good faith for medical purposes. In that context, the Reasons make the following findings:
(a) the complainant’s complaint of hip pain may have provided a basis to examine the inguinal area or the femoral triangle; and
(b) based on the evidence of both Dr Marr and Dr Cassim there would have been no basis to palpate, examine or touch Complainant B’s external genitalia.
On this issue, the Reasons conclude:
Given this and in light of Dr Marr’s evidence, and having accepted the complainant’s evidence that the appellant touched her external genitalia in the four instances described (three of which are the subject of charges), I am able to exclude to the required standard that the touching occurred in the course of a medical procedure carried out in good faith.
It is this finding which Dr Cassim challenges as legally unreasonable. Dr Cassim’s argument in this respect is that:
(a) there was a legitimate purpose to palpate and examine the inguinal area and the femoral triangle;
(b) the legitimate purpose to palpate and examine those areas was consistent with the patient notes, his record of interview, his sworn evidence and Dr Marr’s evidence;
(c) the palpating occurred over clothes; and
(d) he had given sworn evidence denying any touching of the labia.
Dr Cassim says that those matters collectively make it unreasonable to reject the defence case beyond reasonable doubt. I disagree.
Once her Honour had rejected Dr Cassim’s evidence that he did not touch the labia and had accepted the complainant’s evidence regarding the nature and manner of the touching, a conclusion rejecting beyond reasonable doubt the defence under s 48A of the Crimes Act was, in my view, plainly open.
Ground three of Dr Cassim’s application therefore fails.
Unreasonableness – Complainant A
In the case of Complainant A, there is no dispute on the evidence that Dr Cassim touched her buttocks. Dr Cassim’s defence before the County Court was that any such touching was in good faith and for the purposes of a medical procedure. Her Honour rejected this defence.
Her Honour accepted that:
There may have been a basis to touch certain areas of [Complainant A’s] buttocks, indeed that it may have been necessary based on the notes, to touch her sacral bone, her iliac crest and giving Dr Cassim the benefit of the doubt, even to press on her ischial tuberosity; but to be palpating her buttocks in the way she describes does not seem to be consistent with a legitimate medical examination. I accept the complainant’s evidence that her inner thigh was touched but I am prepared to accept that the touching on her thigh may have been inadvertent as part of him touching her buttocks.
The Reasons then set out in some detail the manner of touching which her Honour finds occurred and why she regards that touching as going beyond a legitimate medical examination:
[Complainant A] stated that Dr Cassim was pushing down her back area under her jacket and asked if he could pull her leggings down a bit. She thought he was talking about the upper area but on her evidence he pulled her leggings down to her thighs and began pushing around different spots on her bottom working his way into her inner thigh. She felt uncomfortable as she was not really covered and it seemed to take longer than it needed to. The appellant was telling her to lower her leggings further. She described him touching her lower back in a pushing motion but as he got lower he used more of a pinching motion and she believed he was using one hand to do so. I accept her evidence that it felt to her like he was pinching her bottom and her inner thighs. I accept her evidence that he was pinching every spot around the outer and worked his way towards the inner thigh area from the middle down every point. She described that he was pushing with his fingers but when at the bottom part of her bum it felt more like him using his whole hand when he went to her inner thigh area it was more of a grabbing motion.
This does not seem consistent with palpating specific areas of the buttocks. Touching in this manner on its own may lead to the conclusion that [Dr Cassim] was seeking to palpate certain parts of her buttocks, but the fact that he did so on her naked skin, with that [scil. without] telling her beforehand that he would need to press on such an intimate area of her body, leads me to conclude that the touching went beyond a legitimate medical examination and that it was not simply for a legitimate medical purpose. I am satisfied that in these circumstances, I can exclude that this was an examination conducted in good faith for a medical purpose. Rather it suggests that the touching was of a sexual nature. [Complainant A] said it felt like it went for a long time; the pressing and pushing around different spots of her buttocks seemed to take longer than it needed to. This supports my finding that the touching was both intentional and sexual.
I am satisfied beyond reasonable doubt that the touching was sexual. In reaching this conclusion I have taken into account the evidence of Dr Marr, the description of the touching given by [Complainant A], and [Dr Cassim’s] evidence.
Her Honour then says that she is fortified in that conclusion because she accepts the evidence of Complainant A that Dr Cassim, during the course of the consultation, called Complainant A ‘a pretty young lady’.
Dr Cassim critiques four specific findings in the Reasons in support of his submission that the decision is subject to legal unreasonableness.
First, Dr Cassim points to the following sentence in the Reasons (which occurs before the passage I have quoted above):
If [Complainant A] was reporting mild tenderness in the sacral bone, this doesn’t explain a need to examine the ischial tuberosity or the greater trochanter.
Dr Cassim asserts that this sentence is plainly not supported by the evidence, and points to various evidentiary references where Dr Marr in particular accepted that in certain circumstances it might be necessary to palpate the ischial tuberosity or the greater trochanter.
I am not satisfied that Dr Cassim has demonstrated any error in this respect. First, it is, in my view, plain when regard is had to the context in which that sentence occurs, that the sentence which Dr Cassim highlights is not a specific finding of her Honour as to a matter of fact, but her Honour’s description of a portion of the evidence of Dr Marr. I am fortified in this conclusion by the fact that in the portion of the Reasons which I have quoted in paragraph 32 her Honour specifically accepts (giving Dr Cassim the benefit of the doubt) that there may have been a reason to palpate the ischial tuberosity. In any event, that portion of her Honour’s reasons demonstrates why the point goes nowhere. Her Honour specifically found that there may have been a legitimate medical reason to palpate areas of the buttocks.
Secondly, Dr Cassim points to the following sentence in the Reasons:
Furthermore, it does not seem there was a basis to palpate the gluteal tendons or ischial tuberosity given that there does not appear to have been a report of pain in the buttock area.
On a similar basis to his first critique, Dr Cassim contends that this sentence is inconsistent with the evidence of Dr Marr and himself. Once again (and for the same reasons) I am not satisfied that, properly understood, the particular sentence is to be regarded as a standalone finding of fact made by her Honour as opposed to a summary of the evidence of Dr Marr. Again, insofar as the ischial tuberosity is concerned her Honour made a specific finding that there may have been a legitimate medical reason to palpate that area.
Thirdly, Dr Cassim contends that the following portion of the Reasons demonstrates three errors:
It may be that Dr. Cassim was examining certain areas of [Complainant A’s] buttocks in accordance with those necessary to be palpated ordinarily for a medical purpose. However, it does not explain why he pressed on areas about which she reported no pain. Nor does it explain why he did so without informing her prior. Significantly, in my view, it does not explain why he palpated her naked buttocks.
Dr Cassim contends that this portion of the Reasons demonstrates error because:
(a) the evidence established that it may be appropriate to palpate pain-free areas;
(b) a failure to inform Complainant A of the need to palpate areas where there was no pain was not best practice but not incriminating; and
(c) the evidence supported a need for visual inspection of the buttocks area and Dr Cassim was not to know that Complainant A was wearing a G-string so palpating the naked buttocks was not inconsistent with a medical purpose.
The evidence that it may be appropriate to palpate pain-free areas needs to be understood in context.
Dr Marr described, in her evidence, that it was appropriate to palpate until a patient indicated that there was no longer pain.
Dr Cassim’s own evidence does not establish a basis to palpate areas which are not adjacent to an area where pain has been described. Insofar as there appears to have been a relevant description of pain, on the evidence it is limited to a description of mild tenderness of the sacral bone.
Dr Cassim’s evidence was that:
(a) He could not recall the specific back examination conducted on Complainant A;[7]
[7]Reasons [323], [336]; County Court Transcript 743, 913 (‘CCT’).
(b) His evidence was based on what would have been his normal practice;[8]
[8]Reasons [336]; CCT 913.
(c) The adjacent areas to the sacral bone are the iliac crest, the ischial tuberosity and the gluteal region;[9]
[9]Reasons [325]; CCT 749.
(d) He would have palpated the gluteal area, the sacrum and the iliac crest. It is possible he palpated the ischial tuberosity but he cannot recall doing so;[10]
[10]Reasons [336]; CCT 913.
(e) In relation to how he would palpate:
(i) the iliac crest, he would check two points, he would have his fingers on the outer side of the hips and the thumb palpating the sacral and central spine, the upper part of the sacral spine and the sacroiliac joint;[11]
[11]Reasons [322]; CCT 738-739.
(ii) the gluteal region, on one or two points on the outer side of the buttocks with his thumb, with his fingers on the side of the patient;[12] and
[12]Reasons [323]; CCT 739, 742-743.
(iii) the ischial tuberosity, with his thumb, with hand and fingers on the side of the patient’s body;[13]
[13]Reasons [323]; CCT 742.
(f) He would never perform an examination using the whole hand or pinching and pressing the whole buttocks;[14]
(g) In response to the proposition that there was no medical need to be pressing all over the exposed buttocks, he expressly denied pressing of the exposed buttocks area;[15] and
(h) He denied pressing and pinching around the inner thigh.[16]
[14]Reasons [337]; CCT 913-914.
[15]Reasons [340]; CCT 918-919.
[16]Reasons [329]; CCT 758-759, 915.
In the Reasons (in a passage I have referred to above) her Honour states:
I accept [Complainant A’s] evidence that he was pinching every spot around the outer and worked his way towards the inner thigh area from the middle down every point. She described that he was pushing with his fingers but when at the bottom part of her bum it felt more like him using his whole hand when he went to her inner thigh area it was more of a grabbing motion.
A fair reading of her Honour’s reasons, in my view, makes clear that her reference to Dr Cassim pressing on areas about which Complainant A expressed no pain is a reference to areas which were not adjacent to those where Complainant A expressed pain. In other words, to areas beyond the iliac crest, the ischial tuberosity and the gluteal region (on one or two points on the outer side of the buttocks).
It may be accepted that not telling Complainant A of the need to palpate areas adjacent to her pain is not incriminating but it may be relevant to an overall assessment of the circumstances of the touching. This is how it is treated in the Reasons. In any event, it is not central to the finding that the touching was not for a medical purpose.
Dr Cassim also contends that her Honour’s reliance on the nakedness of the buttocks as an indicator of the sexual nature of the touching and the absence of an appropriate medical reason for the touching was in error. Dr Cassim says that overall, the evidence supported the need for a visual inspection of the buttock area in order for him to properly assess Complainant A’s description of pain ‘projecting’ from her stomach to her back. Dr Cassim said he was not aware that Complainant A was wearing a G-string and so it follows that his visual inspection was necessarily of her naked buttocks. Having conducted a visual inspection, the possibility of a medical purpose for palpating on the bare skin of the buttocks could not be ruled out beyond reasonable doubt.
Dr Cassim has not demonstrated the error for which he contends.
The Reasons record the following finding:
Having considered that evidence, even with the evidence that she has previously reported that there was an examination initially with her pants up, and even accepting there may have been a need to conduct a visual examination by lowering the top of her pants to look at her lower back for a protuberance, it is unclear why Dr. Cassim would have needed to palpate the entire buttock area on [Complainant A’s] naked buttocks. There does not seem to be a medical reason or basis for doing so. Any need to palpate the buttocks does not require a patients pants to be lowered such that a Dr. Cassim would need to make direct contact with her bare buttocks.
Her Honour found that a visual inspection may have been necessary but it was open to her Honour to find that palpating the entirety of the buttock area on bare skin was unnecessary. Dr Cassim has not demonstrated the illogicality or unreasonableness for which he contends.
Fourthly, Dr Cassim says that there is an inconsistency in the Reasons insofar as they deal with touching of the inner thigh.
In this regard, Dr Cassim refers to the following portion of the Reasons:
I also accept that to a layperson, palpating with the thumbs while the fingers were splayed to help steady the patient, might have felt strange. It might have caused a patient to feel uncomfortable or uneasy. It is for this very reason that it would be prudent for a medical practitioner to explain to a patient what he was doing and why the examination was being conducted in this manner. Furthermore it does not explain why he may have touched her inner thigh.
Dr Cassim contrasts that paragraph with the finding in the next paragraph where her Honour found:
I accept the complainant’s evidence that her inner thigh was touched but I am prepared to accept that the touching on her thigh may have been inadvertent as part of him touching her buttocks.
Dr Cassim says that insofar as the Reasons rely on the touching of the inner thigh as a basis on which it is found that the touching was not part of a legitimate medical procedure, that it is inconsistent with the finding that the touching may have been inadvertent.
Dr Cassim’s submission overreads the extent to which the Reasons rely on the touching of the inner thigh. The first reference is no more than a comment as to the manner in which Dr Cassim asserted he had palpated Complainant A’s buttocks and the fact that that description is inconsistent with touching the inner thigh. The comment that that manner of palpation does not explain why Dr Cassim may have touched the inner thigh is open on the evidence, consistent with Dr Cassim’s own evidence on this issue and is not inconsistent with the subsequent acceptance that any such touching may have been inadvertent.
In short, none of the particular bases upon which Dr Cassim asserts illogicality or unreasonableness in relation to the finding that the touching went beyond a legitimate medical examination has been established.
For completeness, I note that her Honour had the benefit of seeing the evidence of Complainant A and the evidence of Dr Cassim, it was therefore open for her Honour to find to the requisite standard:
(a) that she accepted the evidence of Complainant A as to the nature of the touching, being ‘pressing and pushing around different spots of [the] buttocks [which] seemed to take longer than it needed to’;
(b) that it was unnecessary for the palpation to have occurred with Complainant A’s leggings down and against her bare skin;
(c) that she rejected the evidence of Dr Cassim that he had not palpated Complainant A’s buttocks against her bare skin and in the way she described;
(d) that Dr Cassim had referred to Complainant A as a ‘pretty young lady’; and
in all the circumstances, conclude that the palpating of the buttocks was not for a legitimate medical purpose and that the s 48A defence had not been made out.
Dr Cassim has not demonstrated any legal unreasonableness in that conclusion.
Principles regarding reasons
In DL v The Queen (‘DL’)[17] the High Court had to consider the adequacy of a judge’s reasons. The appellant had been convicted of a count of persistent sexual exploitation of a child. The majority found that, in the circumstances, the trial judge’s reasons were not inadequate notwithstanding the failure to specifically resolve a number of factual disputes, they said:[18]
[17](2018) 266 CLR 1 (‘DL’).
[18]Ibid 12-13 [32]-[33] (Kiefel CJ, Keane and Edelman JJ).
The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”.
…
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
In Makeham v Sheppard (‘Makeham’)[19] Priest JA (with whom Kyrou JA and Weinberg JA agreed) described the basal requirements for reasons in the following terms:
In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on each disputed piece of evidence, or make findings on every argument or submission made — particularly where they are numerous and of varying significance — but those that are important to the ultimate decision must be set out.[20]
[19][2020] VSCA 242 (‘Makeham’).
[20]Ibid [38].
Weinberg JA (with whom Kyrou JA agreed) provided separate additional reasons regarding the content of the duty to give reasons. Having referred to differing views expressed by Kirby P and Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd[21] his Honour said:
[21](1987) 10 NSWLR 247.
What is clear is that a bald statement of an ultimate conclusion, even by reference to the evidence that is said to support that conclusion, is unlikely, by itself, to be sufficient. The process of reasoning which enables the path by which the conclusion has been reached must be able to be clearly discerned.
Of course, a judge, though obliged to give reasons, is not required to address every submission advanced during the course of a hearing. Nor are judges expected to deal specifically with every consideration that passes fleetingly through their minds as they proceed to their ultimate determination.
If it is not possible to discern from the reasons given how the conclusion was reached then those reasons will ordinarily be inadequate. Reasons should, at least, trace the major steps in the reasoning process so that anyone reading them can understand, at least in broad terms, how the judge arrived at his or her conclusion. Importantly, reasons must demonstrate that findings of fact were based upon logically probative evidence.
The content of the duty to give reasons will, of course, vary. The obligation that rests upon a busy magistrate, hearing perhaps dozens of summary matters in a day, will obviously be far less onerous than that which rests upon a judge in the County or Supreme Court. Nonetheless, there must be an irreducible minimum below which no set of reasons given by a judicial officer, in the exercise of judicial power, can fall.[22]
(emphasis added)
[22]Makeham [77]-[80].
Both parties accept those general principles apply and that if the Reasons were inadequate this would constitute an error on the face of the record.
Adequacy of reasons – parties’ submissions
Dr Cassim says that the Reasons are inadequate. His arguments are essentially the same for both Complainant A and Complainant B.
Dr Cassim says the Reasons fail to:
(a) deal appropriately with the character evidence;
(b) allow for an assessment that the findings of guilt were not based on mere preference for the complainants’ evidence; and
(c) provide any reasons for why his evidence was rejected.
The first defendant submits that the Reasons are adequate. They say:
(a) the character evidence here was of limited probative value, being limited to Dr Cassim’s lack of convictions. In that context, the Reasons deal with that issue sufficiently;
(b) it is clear that her Honour properly directed herself in relation to and applied the Liberato principles, the Reasons do not demonstrate a decision based on mere preference for the prosecution evidence; and
(c) there was no obligation to say why Dr Cassim’s evidence was not accepted, it was enough to say the evidence was not accepted.
Before dealing with these arguments it is appropriate to observe that in his submissions Senior Counsel for Dr Cassim accepted that the only evidence before the County Court regarding character was the absence of prior convictions but said that her Honour could have taken into account that Dr Cassim was a medical doctor ‘which carries with it certain inherent positive character aspects’. No authority was cited for this proposition and I reject it. There seems to me no basis on which it would have been appropriate to proceed, in the absence of evidence, on the basis that medical doctors are innately of good character.
Character Evidence
Dr Cassim specifically relied on Makeham as to the obligation of a judge to give reasons where the accused has relied on character evidence.
In Makeham at first instance a magistrate convicted Mr Makeham of committing an indecent act with a child under 16, being a friend of his daughter’s, SB. Mr Makeham was interviewed by police where he denied the indecent act.
The prosecution’s case consisted of evidence from SB, from Mr Makeham’s daughter and wife, a friend of SB and two police officers. No evidence was called on behalf of Mr Makeham. His counsel addressed the magistrate on a range of matters including directions from the charge book on the Judicial College of Victoria’s website regarding good character. Counsel’s submission was in the following terms:
Yes. And if Your Honour wanted me to expand on them I would. So the first in the charge book, Your Honour, is 4.3.1 under the heading Character Evidence and then there are two discrete subsections under that 4.3.2 which is the charge for general good character evidence and 4.3.3 which is the charge for specific good character evidence and they both relate to 110 in the Evidence Act.[23]
[23]Ibid [14].
The magistrate referred to evidence of Mr Makeham’s character in her reasons:
In considering Mr Makeham’s position in relation to the allegations the court has received little relevant evidence. Paula Makeham in her evidence to this court on 11 October described her estranged husband as a good man, an honest man with a good reputation and a man against whom there has been [scil, never been] prior been allegations made.
… The informant, Detective Sheppard, confirmed that Mr Makeham was cooperative at all times with police and that he called the police station within 24 hours of police leaving a calling card at his home. Further, that he attended for a fully recorded record of interview cooperatively on 21 June 2017. It is clear to me that Mr Makeham has no prior criminal history with police and courts.
During the interview Mr Makeham denies categorically any wrongdoing.[24]
[24]Ibid [15].
The magistrate’s critical findings in relation to the offence were:
(6), What followed has been accurately and truthfully described by the complainant [SB]. Mr Makeham attempted to remove the covers from [SB] determinedly and slowly so as not to wake her and for the sole purpose of touching her indecently.
(7), [SB] was a compelling witness. Her immediate disclosures to [KJ], to [MA], later to her mother Mrs Makeham [sic] only served to enhance my view of her truthfulness.
(8), I find it would be impossible for [SB’s] version to have been concocted in all of the circumstances and despite inconsistencies to which I have referred. Those inconsistencies in my view occurred through no fault of [SB], but rather through the careless use of language by the individuals that I have referred to.
(9), [SB] presented to this court as a young and unsophisticated girl even now at the age of 16. I could find no evidence of her lying and I felt that she withstood vigorous well planned and well executed cross-examination and remained consistent throughout.
(10), Whilst I am prepared to find that Mr Makeham acted in an opportunistic fashion, disinhibited possibly by the drinking of alcohol during that night, I consider that he breached young [SB’s] trust and the trust of her family by engaging in this conduct which was profoundly indecent.
The charge is proved beyond reasonable doubt.[25]
[25]Ibid.
Mr Makeham was unsuccessful in an appeal to a single judge of this Court on a question of law. Mr Makeham appealed that decision to the Court of Appeal.
In the Court of Appeal, Mr Makeham complained of the adequacy of the reasons of the magistrate. On this issue Priest JA (with whom Kyrou and Weinberg JJA agreed) said:
Very significantly, however, despite it having been at the forefront of counsel’s submissions, as I have said the magistrate did not articulate how — if at all — she had used the evidence of the applicant’s good character. The magistrate stated that the applicant’s wife had ‘described her estranged husband as a good man, an honest man with a good reputation and a man against whom there has been [scil, never been] prior allegations made’. Additionally, the magistrate said that it was ‘clear’ to her that the applicant ‘has no prior criminal history with police and courts’. Despite a mere recitation of the evidence going to the applicant’s good character, however, the magistrate gave no indication whatsoever as to whether she took it into account when considering the credibility of the applicant’s categorical denials of wrongdoing — somewhat curiously, as I have indicated, despite his lengthy interview, she thought there was ‘little relevant evidence’ of the applicant’s ‘position’ — or as bearing on the unlikelihood of the applicant’s guilt. In my view, the reasons were in that respect inadequate.
…
Good character was central to the resolution of the disputed issues in the case. The prosecution relied on the evidence of SB — the credibility of which was supported by the complaint evidence — to support the charge. Against that, the applicant’s ‘defence’ revolved very significantly (if not solely) around his denials in his record of interview, including his explanation as to how his innocent actions might have been misinterpreted. He was entitled to have the evidence of his good character weighed in the balance by the magistrate when she came to consider his denials. This was, after all, as counsel for the applicant tried to make clear, a case of ‘word against word’. Moreover, the applicant was entitled to expect that the magistrate would take his good character into account when considering the unlikelihood of his guilt. Yet, beyond reciting the evidence establishing that he was a man of good character, the magistrate gave no clue as to how she may have used the evidence (if at all). In that respect, the reasons were wholly inadequate, and the primary judge should have so found.[26]
(emphasis added)
[26]Ibid [34], [56].
Makeham thus stands for the specific proposition that where the accused relies on their good character, it must be clear from the reasons that the judge has weighed this issue in the balance when assessing whether to accept the accused’s denials of wrongdoing.
Grabski v Beier[27] is another judgment standing for the same proposition. In that case Mr Grabski had called three character witnesses.[28] Ginnane J found the reasons of the County Court judge were inadequate on a number of bases, including that they ‘made no reference to the character evidence that formed part of the plaintiff’s case and was relevant to the plaintiff’s defence of both charges, both as to the unlikelihood of guilt and as to the credibility of the accused who denies his guilt’.[29]
[27][2020] VSC 156.
[28]Ibid [17].
[29]Ibid [56].
In the Reasons, character evidence is dealt with in the following way:
I heard evidence that Dr. Cassim is of good character. He has no prior criminal history. I direct myself that there are two ways in which I can use this fact. First, it can be used when assessing the credibility of his evidence and his denials of the prosecution case. As a person of good character is generally thought to be more trustworthy than other people, I may be less willing to accept the prosecution’s evidence than if Dr. Cassim was not a person of good character.
Secondly, I can use it when determining the likelihood that the appellant committed the offences charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution’s allegation that Dr. Cassim committed those offences, than if he was not a person of good character.Of course, this does not mean that I must find Dr. Cassim not guilty if I accept that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts – it can only help to determine whether or not those facts have been proven. Also, I keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.[30]
[30]Reasons [578]-[579].
As noted above, Dr Cassim accepts that there is no error in the way her Honour directs herself on this issue. He says however, the error was not to specifically refer to his character in that section of the Reasons which deal with findings. In the circumstances of this case, I am not persuaded there is any inadequacy in the Reasons in this regard.
In this case, in contrast to Makeham and Grabski v Beier, there was no evidence of good character beyond the absence of convictions. In Melbourne v R[31] both McHugh and Kirby JJ (the latter of whom was in dissent but not on this issue) referred to the difficulties with treating good character as synonymous with the mere absence of prior convictions.[32] In R v Cumberbatch (No 5)[33] Flatman J characterised the judgment of Callinan J in Melbourne v R as ‘very strong authority for suggesting that the probative value of simply saying that a person has no prior convictions is very, very limited’.[34] That is not to suggest that her Honour was not to take that evidence into account but it does bear, in my view, on the nature and extent of reasons which are required on this issue in this case.
[31](1999) 198 CLR 1.
[32]Ibid 12-14 [26]-[29] (McHugh J), 42 [108] (Kirby J).
[33](2002) 130 A Crim R 599.
[34]Ibid 602 [12].
In his submissions, in response to a question of what more the Reasons needed to contain, Senior Counsel for Dr Cassim said that in the findings section of the Reasons her Honour should have gone back to the character evidence and said something along the lines of:
Dr Cassim has given an interview, he has given sworn evidence and he is a man of good character. Now, taking the character aspect, that makes his evidence more credible, it gives him credibility, it makes the guilt less likely. So that's number one.
Number two is the credibility of his denials. So when he denied touching Complainant B on the vagina or the labia her Honour should have, was obliged to return his good character, which we accept she set out in general terms much earlier on, and address the interaction between his good character and the credibility of his denials of impropriety.[35]
[35]Supreme Court Transcript 20-21.
In essence, Dr Cassim’s submission on this aspect seems to amount to the proposition that having accurately set out the use which could be made of good character evidence, the Reasons were required, in effect, to formulaically repeat the effect of the directions at each point that her Honour chose not to accept Dr Cassim’s evidence. Makeham does not go so far, neither does Grabski v Beier. I am satisfied that having regard to the relatively limited nature of the character evidence, the passage of the Reasons quoted above sufficiently dealt with that evidence and that it was unnecessary for the Reasons to repeat that formulation each time Dr Cassim was disbelieved.
Liberato principles and mere preference
In Liberato v R,[36] Brennan J (with whom Deane J agreed) held that in a case involving a jury:
The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.[37]
[36](1985) 159 CLR 507.
[37]Ibid 515.
In this case Dr Cassim accepts that her Honour directed herself in an orthodox manner regarding the application of the Liberato principles. He says however, that the Reasons do not demonstrate that she applied them. Dr Cassim relied heavily on two authorities regarding the application of the Liberato principles in the context of reasons of a judge sitting without a jury.
In Douglass v R (‘Douglass’)[38] the accused had been convicted at trial before a judge alone of an aggravated sexual assault of his granddaughter (referred to as CD) who at the time of the alleged offence was aged three. The only evidence of the offence had come from CD. That evidence comprised statements made by her in an interview with a psychologist and unsworn answers in cross-examination at trial. The accused gave sworn evidence in which he denied any sexual assault had occurred.
[38](2012) 86 ALJR 1086 (‘Douglass’).
On appeal, the South Australian Court of Criminal Appeal upheld the conviction. In the High Court the conviction was overturned on the grounds that difficulties with CD’s evidence. In particular, the fact that she had given three inconsistent accounts meant that it was not open for the trial judge to be satisfied of the reliability of her account and to reason from that, despite the accused’s denials, to a conclusion that the offence had been proven beyond reasonable doubt.
The High Court judgment discussed the sufficiency of the trial judge’s reasons. At trial, the judge had found that the accused was guilty without rejecting his sworn denial. The judgment of the High Court reproduces the relevant portion of the trial judge’s reasons as follows:
I warn myself of the caution I must take in determining whether to accept CD’s unsworn evidence and the weight to be given to it.
I bear in mind as well that the accused has given sworn evidence denying the allegations. Further, I do not find anything in his demeanour that assists the prosecution.
While bearing all these matters in mind, I am satisfied beyond reasonable doubt that the accused contrived to have CD touch his penis during or about the time he urinated in a shed. I am unsure of which shed. I find the incident occurred on or about 23 October …[39]
[39]Ibid 1088 [7].
The South Australian Court of Criminal Appeal had dismissed an appeal against conviction on grounds which included the insufficiency of reasons. It had done so on the basis that the case at trial was one of ‘word against word’ and, adopting a statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd,[40] that where a case turns on credibility it may be enough for a judge to state they believe one witness in preference to another.
[40](1987) 10 NSWLR 247.
The High Court disagreed. It said:
It was an error to view the appellant’s trial as reducing to a case of “word against word”. It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. …
To dismiss the appellant’s complaint respecting the sufficiency of the reasons on the footing that the judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true. …
In this case, the failure to record any finding respecting the appellant’s evidence left as one possibility that the judge simply preferred CD’s evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt.
The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant’s second ground must succeed.[41]
[41]Douglass 1089-1090 [12]-[14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Douglass may therefore be summarised as standing for the following proposition that reasons will not be adequate if:
(a) there is a failure to record any finding regarding the accused’s evidence;
(b) the possibility that the decision was made on the basis simply of a preference for the complainant’s evidence cannot be excluded; and
(c) as a result, one possibility is that the judge applied a lesser standard than requiring proof beyond reasonable doubt.
In Dadashy v Scholte (‘Dadashy’),[42] Mr Dadashy had been convicted of an indecent assault in the Magistrates’ Court. He appealed to the County Court. The appeal proceeded as a judge alone de novo hearing. In the County Court appeal the complainant gave evidence, as did a number of other persons to whom the complainant alleged she had reported the assault. Mr Dadashy gave sworn evidence denying the assault. No other evidence was called on his behalf. The County Court found Mr Dadashy guilty. He sought judicial review in this Court on grounds relating to the adequacy of the County Court’s reasons.
[42][2021] VSC 246 (‘Dadashy’).
Justice Gorton, who heard the application for judicial review, notes at the outset that Dadashy was a case where only one of the complainant or Mr Dadashy could be telling the truth.[43] Having reviewed Douglass, Justice Gorton noted the distinctions between the evidence of the complainant in the case before him and the difficulties with the evidence of the granddaughter in Douglass. His Honour said, however, there were similarities between the two cases in that:
(a) the County Court had accepted and acted upon the complainant’s evidence to convict the accused; but
(b) did not ascribe any reason for having rejected the accused’s evidence or otherwise expressed concerns about it.[44]
[43]Ibid [2].
[44]Ibid [26].
Notwithstanding Gorton J’s suspicion that the County Court had directed itself correctly regarding the Liberato principles, his Honour held that suspicion was not enough. The County Court’s reasons failed to sufficiently discuss Mr Dadashy’s evidence beyond noting his denials or provide any explanation as to why that evidence was rejected. In the circumstances, Gorton J held those reasons were insufficient (and there had been an error of law on the face of the record) as they did not allow the determination of whether the Liberato principles had been properly applied and whether the trial judge had in fact considered the evidence of Mr Dadashy.
The first defendant relied upon Wade v R (‘Wade’).[45] In that case, Mr Wade had been convicted of three counts of indecent assault by Arnott DCJ of the District Court. Mr Wade appealed. One of his grounds of appeal was that the trial judge had failed to give adequate reasons as to his treatment of the evidence of the accused. The New South Wales Court of Criminal Appeal dismissed the appeal and rejected that ground.
[45][2018] NSWCCA 85 (‘Wade’).
R A Hulme J (with whom Schmidt and Hamill JJ agreed) first considered a submission regarding the absence of a specific rejection of the accused’s evidence:
Having regard to all of the above matters that were included in the judgment, it is abundantly clear that the judge:
a) had regard to the correct legal principles in relation to the onus and standard of proof, including that if he considered that the appellant's evidence was true, or could reasonably be true, he must acquit;
b) had regard to all of the evidence, including that of the appellant and the other evidence in the defence case; and,
c) did not consider that the appellant's denials of the offences gave rise to a reasonable doubt about his guilt.
The submissions for the appellant included that "it might be assumed that the trial judge rejected the evidence of the appellant". In my view, there is no other inference reasonably available. The possibility that he referred to the appellant's evidence and to the relevant legal principles and then disregarded them entirely is implausible.[46]
[46]Ibid [115]-[116].
Dr Cassim says the Reasons contain the same fundamental error as in Douglass and Dadashy. I disagree. In both Douglass and Dadashy the ultimate conclusion rested on the basis that the reasons did not permit an assessment of whether the court had simply preferred the evidence of the complainant over the accused rather than being satisfied of guilt beyond reasonable doubt. In this case, it is possible to make that assessment and it is plain that her Honour had directed herself properly, took into account the evidence of Dr Cassim and was satisfied beyond reasonable doubt as to his guilt on those charges upon which he was convicted.
Dr Cassim acknowledges that the Reasons correctly set out the terms of a Liberato direction:
In this case, there is a clear conflict between the evidence of [the complainants]; and the evidence of Dr. Cassim.
It is not necessary for me to accept Dr. Cassim’s evidence in order to find him "not guilty". In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, the appellant must be acquitted if his evidence gives rise to a reasonable doubt.
This is the case even I were to prefer the evidence of the prosecution witness (as applies to the relevant charge) to the evidence or the case of Dr. Cassim. It is not sufficient merely to find the prosecution case to be preferable to the defence case. Before convicting the appellant. I must be satisfied that the prosecution have proven their case beyond reasonable doubt.
So even if I did not think the appellant is telling the truth, but are unsure where the truth lies, I must find the appellant "not guilty".
Even if I were convinced that his evidence is not true, it is not the case that I must convict him. In such circumstances, I must put his evidence to one side, and ask whether the prosecution have proved the appellant’s guilt beyond reasonable doubt on the basis of accepted evidence.[47]
[47]Reasons [565]-[569].
Dr Cassim also makes no complaint about the following directions:
There are four broad conclusions that may be reached reach about Dr. Cassim’s
evidence. If I think his evidence is true, then I will find him not guilty.If unsure as to whether his evidence is true, but think it might be, then this would mean I have a reasonable doubt about the prosecution’s case, and again, in those circumstances, I must find the appellant not guilty. Similarly, if I were to merely prefer the evidence of each of the prosecution witnesses (as they apply to the relevant charge) to his evidence, then I must find Dr. Cassim not guilty. As noted, it is not sufficient to merely find the prosecution case to be preferable to the defence case. The prosecution must establish his guilt beyond reasonable doubt.
Finally, a rejection of Dr. Cassim’s evidence does not mean I must find him guilty. Instead, if I reject his evidence, I put it aside and ask whether the prosecution has proved his guilt beyond reasonable doubt, on the basis of the evidence I accept.[48]
[48]Reasons [573]-[575].
Dr Cassim says that the Reasons do not allow an assessment of whether those principles were applied. I will come to his specific criticisms, however, other aspects of the Reasons are inconsistent with that contention.
The first and most obvious point is that the Reasons say those principles were applied. That is not a conclusive answer, but it does mean that Dr Cassim has to demonstrate that the Reasons do not do what they say they do.
Secondly, as noted above, the Reasons contain a detailed recitation of the evidence of each of the witnesses on each charge. In relation to two of the complainants, her Honour ultimately found those charges had not been proved. In relation to Complainant B, a charge relating to touching of the buttocks was not proved because her Honour could not be satisfied beyond reasonable doubt that it was not done for a legitimate medical purpose. In relation to those charges, her Honour considered the evidence of Dr Cassim and properly applied the standard of proof. Of course, it is possible for a judge to make an error in relation to some charges and not make the same error in relation to others. However, the fact that Dr Cassim was found not guilty on a range of charges with the judge conscientiously applying the appropriate standard of proof, does make less likely the suggestion that on the charges where there was a finding of guilty that a lesser standard than beyond reasonable doubt was applied.
In relation to Complainant B, the findings section of the Reasons specifically:
(a) state that the judge has had regard to all the evidence;
(b) set out Dr Cassim’s denial of touching the external genitalia; and
(c) record that ‘despite Dr Cassim’s evidence’ the judge is satisfied beyond reasonable doubt that Complainant B was touched on the external genitalia and that such touching was intentional.
I deal below with the question of whether reasons must say why a witness’ evidence has been rejected. For the moment though, I focus on whether, taken as a whole, the Reasons permit an assessment of whether the Court had simply preferred the evidence of the complainant over the accused rather than being satisfied of guilt beyond reasonable doubt. In this instance, I am satisfied they do permit that assessment and it is plain that the Court was not merely preferring the evidence of Complainant B over that of Dr Cassim but had rejected his evidence and was satisfied beyond reasonable doubt that touching on the external genitalia had occurred.
In relation to Complainant A, the Reasons:
(a) note Dr Cassim’s denial that he was pinching or pressing the whole buttocks in the section summarising his evidence;
(b) accept that there may have been a need to palpate the sacrum, the gluteal area and the iliac crest and giving Dr Cassim the benefit of the doubt, the ischial tuberosity and also accept that any touching of the thigh may have been inadvertent;
(c) accept the complainant’s evidence as to the nature of the touching, including that it was on bare skin;
(d) record the finding that the Court is satisfied beyond reasonable doubt as to the sexual nature of the touching (which is juxtaposed with a legitimate medical purpose); and
(e) say that in reaching that finding her Honour has taken into account the evidence of Dr Marr, the complainant and Dr Cassim.
The ‘findings section’ of the Reasons in relation to Complainant A does not reiterate Dr Cassim’s denial of the nature of the touching or that it was on bare skin, but the Reasons are to be read as a whole. Those denials are recorded in a number of places in the section of the Reasons regarding Dr Cassim’s evidence. There is not a specific finding rejecting Dr Cassim’s evidence that he would not have pinched or pressed over the whole of the buttocks with his whole hand. However, as Dr Cassim accepts, such a finding is a necessary inference in circumstances where, in the directions section of the Reasons, her Honour states that if she accepted the evidence of Dr Cassim, if she was unsure whether it was true or even if she merely preferred the evidence of the complainants, she should find him not guilty.
Again, I deal with the question of whether the Reasons needed to give specific reasons as to why Dr Cassim’s evidence was rejected below. In relation to Complainant A, I accept that if one were to focus only on the findings section of the Reasons, they might appear to suffer the error of principle enunciated in Douglass and Dadashy. However, once account is taken of the Reasons as a whole, I am satisfied that the Court was not merely preferring the evidence of Complainant A over that of Dr Cassim but was satisfied beyond reasonable doubt that touching, which did not have a legitimate medical purpose, occurred.
Were reasons for rejecting Dr Cassim’s evidence necessary?
In DL, Nettle J (who was in dissent) said:
Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other.[49]
(emphasis added)
[49]DL 44 [131].
In my view the majority and Bell J (who was also in dissent) in DL did not go so far. In Kaur v Minister for Immigration and Border Protection (‘Kaur’),[50] the Full Court of the Federal Court characterised Nettle J’s judgment in DL as describing the content of the obligation to give reasons in a very detailed and prescriptive way and contrasted that with the approach of the majority and Bell J before concluding that ‘the description of the obligation to give reasons by Nettle J is more onerous in terms of its content’.[51]
[50](2019) 269 FCR 464.
[51]Ibid 507-508 [166]-[171].
After a review of various authorities the Court in Kaur stated:
All of these statements constitute little more than general guidelines. What is adequate, or inadequate, in any given case will depend on the nature of the proceeding, the evidence and arguments put forward, and the nature of the issues to be determined. However, the following relevant propositions emerge from the authorities:
(a) The more serious the consequences of a proceeding, or the more serious a finding, the more a judge may need to explain why she or he reached a conclusion or finding;
(b) In some circumstances, it may not be necessary for a judge to explain in great detail a finding of adverse credibility, where it is based on demeanour; and
(c) If a judge disbelieves evidence which is uncontradicted, reasonable and inherently probable, he or she may be required to give more detailed reasons for disbelieving that evidence.[52]
[52]Ibid 510 [177].
In Makeham, Weinberg JA (with whom Kyrou JA agreed) favoured what the court in Kaur had described as the detailed and prescriptive view. His Honour said:
I agree, with respect, with [Priest JA’s] discussion of the two leading cases of Perkins v County Court of Victoria, and Ta v Thompson. I also consider his Honour’s dissent in Ta to be persuasive. If a magistrate is to reject the evidence of, for example, a defendant denying the allegations made against him or her, and does so on the basis of findings as to credibility, the magistrate should, at least, say so in sufficiently clear terms. The defendant is entitled to know why his or her evidence has been rejected, and not merely that the magistrate has preferred to accept the evidence of another witness.
I understand that this view may not be universally shared. I note, for example, that in Soulemezis, Mahoney JA expressed the view that judges should have greater latitude in dealing with matters of credibility. His Honour said:
The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.
With great respect, a finding stated in those terms seems to me to fall short of making clear the pathway of reasoning adopted in arriving at the ultimate conclusion. It also falls short of recognising the limitations that we now have come to recognise as applicable when assessing credibility based primarily upon demeanour.[53]
(citations omitted, emphasis added)
[53]Makeham [85]-[87].
As noted above, both parties agree that Makeham requires that reasons need to trace the major steps of reasoning to a conclusion. Whether it goes so far as to establish the proposition embraced by Weinberg JA that in such a case the rejection of the accused’s evidence cannot be expressed merely in terms of preference for a witness over the evidence of the accused requires further consideration. Strictly it is obiter dictum because Makeham was decided on the failure of the reasons to deal with the accused’s good character and the issue of the complainant’s prior inconsistent statements but it is considered obiter dictum of two judges of the Court of Appeal (Kyrou JA having agreed in the reasons of Weinberg JA).
The first defendant contended that Weinberg JA’s view in Makeham was not the prevailing view and that the decision in Ta v Thompson (‘Ta’)[54] established that where a case fundamentally turned on an assessment of credit, sometimes it was enough for the judge simply to reject a witness’s evidence.
[54](2013) 46 VR 10.
In Ta a quantity of heroin was found in the accused’s wardrobe.Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) created a deeming provision the effect of which was that the accused had to demonstrate, on the balance of probabilities, that he was unaware that the drugs were on the premises or had no intention to exercise control over the drugs or the place where it was kept. Mr Ta was convicted of possession of the heroin in the Magistrates’ Court. He appealed to the County Court.
In the County Court, Mr Ta claimed that he had no knowledge of the heroin and that it did not belong to him. He gave evidence that he had held a party over two days, attended by about 15 people, some of whom were not known to him, who had turned his bedroom ‘upside down’. The County Court’s ex tempore reasons were brief:
Right. Now, look, I’ve heard evidence from the appellant about a party and people coming and going and people using his room. He said it was orderly before he…before the party, and it was not afterwards. Usually … he said the house was tidy, the whole house was half tidy before the police attended; his own room had not been done. That his evidence is the only evidence that I have; I have no-one there … anyone to say that it was a party and that people were sleeping all over the place. Simply that I would have to accept his word and in the circumstances, I don’t accept it. And I’m going to find … I find the charges proved. And I find that he did have knowledge, and therefore I will sentence.[55]
[55]Ibid 14 [19].
Mr Ta brought an application for judicial review, including on the ground that the County Court had failed to give adequate reasons, which was unsuccessful. The Court of Appeal by majority (Osborn and Beach JJA, Priest JA dissenting) dismissed the appeal.
In his judgment Osborn JA (with whom Beach JA agreed) held that:
(a) a County Court judge’s obligation to give reasons extended to identifying the grounds or basis of their decision but did not require detailed reasoning as to the evidence;[56] and
(b) ‘[w]here a judge’s decision turns upon the acceptance or otherwise of a particular witness the judge’s reasons for failing to be persuaded by that witness may be capable of no greater explanation than a summary statement’.[57]
[56]Ibid 19 [42].
[57]Ibid 20 [52].
In relation to the latter proposition, Osborn JA referred with approval to statements of Mahoney and McHugh JJA in Soulemezis which he said had not been relevantly qualified by the decision in Douglass. Osborn JA stated that:
I do not take the decision in Douglass v R to relevantly qualify these observations. Douglass was a case in which the Crown bore the onus of proving the elements of the offence beyond reasonable doubt on the whole of the evidence. The present is a case in which the appellant bore the onus of establishing his defence on the balance of probabilities. In turn, the judicial review proceeding before Whelan J was relevantly analogous to an appeal on questions of law as arose in Soulemezis. The High Court in Douglass did not reject the correctness of McHugh JA’s observations in Soulemezis insofar as they applied to civil proceedings or by analogy to a case such as the present.[58]
[58]Ibid 21 [54].
In other words, contrary to the submissions of the first defendant, Ta does not represent the ‘prevailing view’ in matters where the prosecutor bears the onus of proof beyond reasonable doubt.
On this aspect of the case the first defendant also relied upon Wade, where R A Hulme J (with whom Schmidt and Hamill JJ agreed) said that:
[The appellant] did not dispute that each of MB and TM may have seen him in his office for the reasons they claimed. However, he denied committing the offences.
The bulk of the appellant's evidence was concerned with peripheral matters such as his employment as a teacher and as a school principal with the Marist Brothers; the location and layout of his office at the schools at Hamilton and Kogarah; and, in relation to the complaint by TM, whether he had whiskers.
The judge clearly accepted the defence case, largely based upon the appellant's evidence as to those peripheral matters. He discussed his assessment of the evidence of the complainants in the light of errors in their accounts of the location and layout of the appellant's office. He discussed TM's evidence in the light of an acceptance of the evidence that the appellant shaved on a daily basis.
In these circumstances there was little more to be said in terms of reasons why the judge did not consider that the appellant's evidence raised a reasonable doubt about whether the offences were committed. This stands in contrast to a case in which prosecution witnesses give evidence of an incident and an accused gives a different version. In such a case it would be necessary to explain why the accused's version was not accepted. But in this case, the appellant did not give an alternative version; he simply denied that the offences occurred. His evidence as to the primary issue for the judge to determine said no more than his "not guilty" responses when arraigned at the commencement of the trial.[59]
[59]Wade [117]-[120].
Dr Cassim relied on Dadashy for the proposition that reasons had to be given for the rejection of his evidence.
In Dadashy, Gorton J quoted the passage of the judgment of Nettle J in DL referred to above in paragraph 108. Gorton J noted that Nettle J was in dissent in the result but seems to have regarded his description of the obligation to give reasons as consistent with the majority view in DL. As I have indicated, that is not the way I would characterise the particular aspect of Nettle J’s reasons and it is not the way it was characterised in Kaur. Based on the passage from DL and an analysis of Douglass, Gorton J noted that the reasons of the County Court judge:
(a) had accepted and acted upon the complainant’s evidence to convict the accused; but
(b) did not ascribe any reason for having rejected the accused’s evidence or otherwise expressed concerns about it.
His Honour’s conclusion in Dadashy was that the reasons of the County Court judge did not allow him, as the reviewing judge, to determine whether the Liberato principle had been applied or whether Mr Dadashy’s evidence had been considered in determining whether to accept or reject the complainant’s evidence.
Justice Gorton upheld a further ground of review which was that the reasons of the County Court did not show whether the learned trial judge had considered submissions on Mr Dadashy’s behalf relating to the credibility of his evidence. His Honour’s conclusion in this respect was as follows:
The first defendant submitted that the learned trial Judge’s assertion that he had given careful consideration to the submissions should be accepted. Accordingly, she submitted that it should be inferred that his Honour gave careful consideration to the fact that he had to be satisfied beyond reasonable doubt that Mr Dadashy’s evidence was not true before finding him guilty and that in doing so he had regard to what Mr Dadashy’s counsel had submitted.
I do not agree. The absence of any reasons explicitly dealing with the way Mr Dadashy presented, and how he gave his evidence, raises uncertainty about whether or not the learned trial Judge in fact turned his mind to the issue of how Mr Dadashy presented and to the submissions put by his counsel. It allows for the possibility that his Honour did not do so. For this reason, too, I consider that his Honour’s reasons are inadequate. In light of the way in which the case was defended, his Honour, with respect, was obliged to make some reference to the manner in which Mr Dadashy gave his evidence, so as to demonstrate that he had turned his mind to that issue.[60]
(emphasis added)
[60]Dadashy [32]-[33].
In short, in relation to both grounds, it seems to me Gorton J proceeded on the basis that it was necessary for the County Court judge to say something about why the evidence of the accused had been rejected.
The decision in Dadashy in this respect is difficult to reconcile with the approach in Wade. It does not appear that Gorton J was referred to Wade in Dadashy. As I noted above, Dadashy was, like Wade, a case of mere denial by the accused, but Gorton J seems to have applied a more onerous standard regarding reasons than did the Court of Criminal Appeal in Wade. However, any difference of approach between Wade and Dadashy is of no moment in this case. I have formed the view that the facts in Wade are distinguishable from this case because Dr Cassim gave evidence of a different version of the incident beyond a mere denial.
Dr Cassim did not recall specific features of his consultation with either complainant. However, Dr Cassim did give evidence in relation to the medical purpose for the touching of each of the complainants based largely upon his notes.
In the case of Complainant B, that included the need to palpate the inguinal area because of the complaint of hip pain and an acceptance that there would have been no need to touch the external genitalia.
In the case of Complainant A, Dr Cassim’s evidence relevantly consisted of the need to palpate the sacral bone, the iliac crest, the gluteal tendons and the ischial tuberosity as well as the need to conduct a visual inspection of the top of the buttocks and a description of the manner in which he would have palpated various areas.
I would not describe the evidence of Dr Cassim that I have referred to in the previous two paragraphs as going to ‘peripheral matters’ as was the evidence of the accused in Wade. However, as in Wade, that evidence was largely accepted.
Also, as in Wade, Dr Cassim’s evidence as to the critical issues of touching was not based on an actual memory of the event. In that sense, his evidence as to not touching Complainant B’s external genitalia and his evidence of not palpating Complainant A’s naked buttocks in the way she described is not, in my view, qualitatively different to a mere denial.
The result of this is that this case has some similarities with Wade but, on balance, it is my view that Wade is distinguishable because of the extent to which Dr Cassim’s evidence provided an account of the medical procedures that he said he was conducting.
On the facts in this case the dicta in Wade, Makeham and Dadashy all lead to the same conclusion. Ultimately, it is my view that the weight of authority suggests that her Honour was obliged to give reasons for why she rejected Dr Cassim’s evidence.
In this case, her Honour carefully considered all of the evidence, provided detailed and nuanced reasons in which she found which aspects of the complainants’ evidence she accepted, accepted significant portions of Dr Cassim’s evidence and in a number of key aspects where there was a dispute on the evidence, gave Dr Cassim the benefit of the doubt. Untutored by authority, I would have regarded the Reasons as adequate. However, the Reasons do not contain any relevant discussion of why the evidence of Dr Cassim was rejected in relation to the charges of which he was found guilty. Insofar as that appears to be required by authority, it is my view that there has been an error of law on the face of the record.
Relief
I will hear the parties on the question of relief. One possibility that occurs to me is that in circumstances where it is not in dispute that her Honour correctly directed herself, it may be appropriate to return the matter to her Honour so that she may give reasons for her rejection of the accused’s evidence.
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