Ibrahim v Police

[2013] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

IBRAHIM v POLICE

[2013] SASCFC 70

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

31 July 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION

EVIDENCE - WITNESSES - CROSS-EXAMINATION

EVIDENCE - WITNESSES - CORROBORATION

Appeal against conviction.  The defendant was found guilty after trial before a Magistrate on two counts of indecent assault against complainants CC and AF.  The defendant’s appeal to a Judge of this Court was dismissed. 

The defendant appeals on three grounds:

(1) The Magistrate erred in making an adverse credibility finding concerning the defendant’s evidence that he did not recall CC when there had been no cross-examination of the defendant to suggest that he was not genuine in his claimed lack of recollection of CC.

(2) The Magistrate erred in concluding that the defendant’s version of the apology to AF should be rejected.

(3) The Magistrate erred in ruling that evidence of each complainant was cross-admissible on the count involving the other complainant.

Held: Appeal allowed.

(1) There had been no challenge to the defendant’s claim that he had no recollection of CC.  The Judge under appeal misunderstood the import of the initial questions put by the prosecutor in cross-examination of the defendant.  The defendant was not challenged on a critical aspect of the case as to the genuineness of his evidence that he had no recollection of the consultation with CC.  Compliance was required with the rule in Browne v Dunn if the appellant was to be so challenged (at [26]-[28]).

(2) The Magistrate failed to have regard to a proper understanding of witness B McG’s evidence regarding the defendant’s apology to AF.  The Magistrate’s rejection of the defendant’s evidence cannot be sustained.  The contention that the terms of the defendant’s apology was not material is rejected.  The Judge on appeal did not address this issue in the course of his reasons (at [35]-[40]).

(3) Findings as to credit were critical in respect of both counts.  As there was a joint trial, the flawed findings in respect of both CC and AF impacted adversely on the credit of the defendant when each separate count was considered (at [41]).

(4) Both convictions and sentence set aside.  Proceedings remitted for retrial before a differently constituted Court (at [41]-[42], [45].

Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
Browne v Dunn (1894) 6 R 67 (H.L.); Reid v Kerr (1974) 9 SASR 367; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; Phillips v The Queen (2006) 225 CLR 303, considered.

IBRAHIM v POLICE
[2013] SASCFC 70

Full Court:       Gray, Sulan and Blue JJ

THE COURT.

1. This is an appeal against conviction. 

2. The defendant and appellant, Mohamed Zaki Ibrahim, was charged on Information that:

   1. On the 31^st day of March 2010 at ELIZABETH in the said State,
   indecently assaulted [CC].
   Section 56 (1) of the Criminal Law Consolidation Act, 1935.
   This is an aggravated offence.
   It is further alleged that the circumstances of aggravation are that the offender abused a position of trust in committing the offence.

   This is a minor indictable offence.

   2. On the 15th day of July 2010 at ELIZABETH in the said State,

   indecently assaulted [AF].
   Section 56 (1) of the Criminal Law Consolidation Act, 1935.
   This is an aggravated offence.
   It is further alleged that the circumstances of aggravation are that the offender abused a position of trust in committing the offence.

   This is a minor indictable offence.

3. Following the defendant’s plea of not guilty, a trial on both counts proceeded before a Magistrate from 7 to 11 November 2011.  The Magistrate delivered judgment on 13 January 2012 and published reasons for his conclusion that the defendant was guilty on both counts. 

4. The defendant’s appeal to a Judge of this Court was dismissed.  He has now appealed, with permission, against that decision.

   The First Count – CC

5. The prosecution case in respect of the first count was that the complainant, a 21 year old woman, CC, attended a medical centre on 31 March 2010 as she was concerned about her weight and a red swollen lump on her right breast.  She was seen by the defendant who, in the course of the consultation, conducted a breast examination. CC removed her upper clothing and brassiere.  The defendant stood to CC’s right, holding her right breast in one hand.  The defendant asked CC to raise both arms and moved behind her.  He then groped both of her breasts and pulled her back into contact with the front of his body.  It was the prosecution case that this situation continued for about 20 seconds.  The defendant then complimented CC on her breasts, said words to the effect that that he would love to do some naughty things to her, kissed her on the neck and moved his left hand to come into contact with her hip.  She rejected his advances, became upset and cried.  According to the prosecution case, the defendant was then profusely apologetic, made mention of his wife and children, asked CC not to leave the consulting room crying and gave her a sample pack of an expensive weight loss medication.  Evidence was also led of distress and complaint.

6. CC reported the incident to the police on 19 April 2010.  The defendant participated in a recorded police interview on 23 May 2010.  In the interview, the defendant said that he recalled CC, but he denied the allegations of indecency.  In June 2010, the defendant contacted the police and informed them that, contrary to what he had said in the recorded interview of 23 May 2010, he had in fact no recollection of CC, and said that he had confused CC with another patient.  The defendant gave evidence that he had no recollection of CC, but proceeded to deny that he would have acted in the way alleged. 

   The Magistrate’s Findings

7. The Magistrate made the following general observations in regard to the defendant’s credibility:

   The defendant gave evidence in a polite and respectful manner.  There was nothing about his demeanour that reflected adversely upon him.  He was responsive in answer to questions and did not waver in cross-examination.  English is his second language but the defendant is clearly well educated and a good English speaker.  As indicated earlier, he presented as a serious and conservative person.

   I bear in mind the defendant’s good character when considering the question of guilt.

   I take his good character into account in considering the credibility of his evidence and the likelihood of him having committed the offences with which he is charged.  I give credit to the defendant for giving evidence and subjecting himself to cross-examination.  He was under no obligation to do so.

8. The Magistrate considered, however, that the recorded interview of 23 May 2010 significantly undermined the defendant’s claim to have no recollection of his consultation with CC.  The Magistrate made reference to an agreed fact that the defendant, following the interview of 23 May 2010, had informed the police that he could not recall the consultation with CC.  The Magistrate then observed:

   The defendant was not cross-examined closely in relation to his change of story and it was not specifically put to him that he was lying in evidence where he claimed not to recall his consultation with CC.  However he was asked if he was able to determine who it was that he had in mind when he answered questions during the recorded interview and he was unable to give any explanation as to who else it may have been.

   Upon reading through the transcript of the [recorded of interview] I am left with the clear impression that the defendant was not simply explaining his notes but had an actual recollection of the consultation and the patient.  He said at least at one stage during the interview that he could recall her, offered an explanation why he recalled her and offered an explanation why she may be malicious toward him.  Accordingly, his claim to the contrary in evidence is significantly undermined by this inconsistency.

   The Judge’s Findings

9. The Judge of this Court, in rejecting the defendant’s appeal, discussed the defendant’s memory of CC.  The Judge addressed the defendant’s complaint on this topic as follows:[1]

   The Magistrate rejected the [defendant’s] evidence that he did not recall his consultation with CC.  He had the “clear impression” that the [defendant’s] responses when interviewed indicated that at that time he did recall CC and his consultation with her. 

   The [defendant] challenged this conclusion saying that the prosecution at trial had not challenged his account that he could not remember CC, that it had been the subject of an agreed fact, and that he had not been cross-examined with a view to suggesting that he was being untruthful on this topic. 

   Agreed fact number 9 does not assist the [defendant] on this topic.  It records only the agreement between the parties that the [defendant] had, on two occasions after 23 May, told the police that he had been mistaken in saying that he did recall CC.  It does not record any agreement by the prosecution that the [defendant’s] assertions in that respect were true.

   [1]    Ibrahim v Police [2012] SASC 231, [98]-[100].

10. The Judge then reasoned:[2]

    [2]    Ibrahim v Police [2012] SASC 231, [101]-[102].

    Contrary to the [defendant’s] submission, I am not satisfied that the trial was conducted on the basis that the veracity of his revised account was not in issue.  The indications are to the contrary.  The fact that the prosecution led the evidence of the [defendant’s] interview but not the evidence of the two later communications in which the [defendant] had sought to withdraw his previous admissions is one such indication.

    Further, the prosecution had asked some questions indicating a challenge to the [defendant’s] account in his evidence-in-chief.  Those questions, while perhaps not penetrating, were sufficient in my opinion to indicate that the [defendant’s] assertions in evidence on this topic were in issue:

    Q.    Who was it you were confused with.

    A.    I can’t recall.

    Q.    Was it another patient.

    A.      Yes.

    Q.    Had you seen that patient around that same time as [CC].

    A.    I can’t recall.

    Q.    Was the name similar, is that what was confusing.

    A.    No.

    Q.    It was just something about it that made you think that the person the police were referring to was this other patient.

    A.      Correct.

    If the [defendant’s] claim of having no recollection of CC was not in issue, it is difficult to understand why the prosecutor thought it necessary to ask these questions.

11. Having reviewed aspects of the defendant’s evidence, the Judge then noted:[3]

    [3]    Ibrahim v Police [2012] SASC 231, [107]-[112].

    It would have been desirable for the prosecutor to make more express his challenge to the [defendant’s] evidence on this topic.  However, as I say, the limited questions which the prosecutor did ask were sufficient to indicate that he challenged the [defendant’s] account. 

    The absence of any more detailed cross-examination by the prosecutor has not resulted in procedural unfairness:  it is apparent from the questions which [senior counsel for the defendant] asked of the [defendant] in examination-in-chief that she was concerned to have the plaintiff [sic] explain (and justify) his changed position. 

    It needs to be kept in mind that the rule in Browne v Dunn[4] is directed towards achieving procedural fairness.  The rule was stated by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation[5] in the following terms:

    It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.  Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.[6]

    Given this is the purpose of the rule, it may have a different operation when a party is on notice that its witness’ version is in contest.  That notice may come from the nature of the matters in issue, from some pre-trial document, from the other side’s evidence, or from the general manner in which the case is conducted.[7]  See also Raben Footwear Pty Ltd v Polygram Records Inc.[8]

    In the present case, the issues in the trial would have made it apparent that the [defendant’s] change of position concerning his recollection of CC was a matter bearing upon his credibility.  That is why counsel sought, after the close of the prosecution case, to place before the Court by agreed fact the evidence about the [defendant’s] post‑23 May communications to the police.  It also explains the evidence‑in‑chief led from the [defendant] on the topic. It is confirmed by the cross-examination of the [defendant] set out above, incomplete as it may have been. 

    That suggests to my mind that the [defendant] was sufficiently on notice about the issue and could, if he had chosen, have led any further evidence he wished on the topic.  That being so, I am not satisfied that there has been any procedural unfairness arising from the prosecutor’s manner of conduct of the trial. 

    [4] (1893) 6 R 67.

    [5] [1983] 1 NSWLR 1.

    [6] Ibid at 16.

    [7]    JD Heydon, Cross on Evidence (8^th Aus ed, 2010) at [17445].

    [8] (1997) 75 FCR 88 at 102.

    The Appeal to the Full Court

12. On the appeal to this Court, the conclusions of the Judge were challenged.  It was said that an agreement had been reached between the prosecution and the defence that it was acknowledged that the defendant had approached the police in June 2010 and informed them that he had no recollection of CC and that his statements to the contrary on 23 May 2010 were incorrect.  Further, it was contended that it had been agreed that the defendant was genuine in his assertion that he had no recollection of CC. 

13. This appeal is against the order of the Judge dismissing the appeal from the Magistrate.  If error is found on his Honour’s part, it is necessary for the Court to reconsider the original complaints against the decision of the Magistrate.

14. The Court indicated to counsel for the defendant that the suggestion that there had been an agreement that the defendant was genuine in his assertion of no recollection needed to be clearly established by admissible evidence.  The proceeding was adjourned to enable this to occur.  Affidavits of senior and junior counsel representing the defendant at trial and from the prosecution were tendered on the resumed hearing.  Neither of the affidavits of counsel for the defendant, as conceded before this Court, established an agreement as to the defendant’s genuineness.  The contention that there had been an agreement that the defendant was genuine was then withdrawn.

15. Counsel for the defendant on the appeal submitted that there had been no cross-examination of the defendant to suggest that he was not genuine in his claimed lack of recollection of CC.  It was argued that the passage in cross-examination referred to by the Judge, as extracted above, was not intended to be a challenge to the defendant’s claimed genuineness on this topic, but rather the questions were designed to confirm that the defendant had no recollection at all of the consultation with CC.  In no sense was it put to the defendant that he was being dishonest in that claim, either in court or out of court.

16. The issue of whether the prosecutor had challenged the defendant’s account that he had no recollection of CC arose during addresses before the Magistrate.  Counsel for the defendant submitted that there had been no challenge.  It was said that there was no suggestion put to the defendant that he had feigned a lack of recollection.  This led the Magistrate to put the prosecutor on notice in relation to the defence assertion that there had been no challenge to the defendant’s evidence that he had no recollection of the consultation of 31 March 2010.  The prosecutor then replied “[t]o be honest, I probably didn’t actually ask that of him.  I’m willing to concede that, because it wasn’t something I had adverted my mind to, so I’m willing to concede that.”  It follows from this concession that there had been no challenge to the defendant’s claim that he had no recollection.  As the prosecutor frankly acknowledged, he had not averted his mind to that topic.  When regard is had to this concession, it is quite apparent that the passage of evidence referred to by the Judge, and extracted above, was not intended to be and was not a challenge to the defendant’s claimed lack of recollection.  The apparent purpose of those questions was to confirm the defendant’s assertion that he had no recollection of the consultation before continuing with the cross-examination. 

17. A review of the Magistrate’s reasons discloses that he considered that the defendant’s claimed lack of recollection was materially at odds with his record of interview of 23 May 2010, such that the defendant’s credibility was significantly undermined.  Given that this relevant allegation was not put to the defendant in cross-examination and that no questions were put by the Magistrate on the topic, a significant unfairness has occurred.  The defendant had no opportunity to meet the allegation. 

18. Counsel for the defendant on the appeal drew attention to the fact that the prosecutor did not make any submission in closing address that the defendant’s lack of recollection was feigned or was not genuine.  In the course of the prosecutor’s closing submissions, the following occurred.  The prosecutor said:

    [The defendant] explained how the Medtech system worked.  He says he didn’t remember [CC], but I find that difficult to believe, given her reaction that she gave, her evidence was she was, that she was upset and crying when she left. ...

    The Magistrate commented:

    I suppose the inference to be drawn is, if [the defendant] didn’t remember [CC’s] consultation, that that consultation didn’t end with her getting upset and leaving crying.  If you accept that she left crying, then you have accepted in large part her account of the consultation.  That sort of begs the question, doesn’t it, whether you should be accepting her account?

    The prosecutor responded:

    In any event, [the defendant] doesn’t remember [CC]; he was relying on his notes. …

19. On the appeal, it was initially suggested by counsel for the Police that the prosecutor’s statement “I find that difficult to believe” was sufficient to raise a challenge to the issue of genuineness.  Counsel for the defendant submitted that this was no more than a throwaway line and that, in any event, the prosecutor’s personal belief did not form the basis of any proper submission.

20. In an affidavit filed on the hearing of this appeal, the prosecutor confirmed that the expression “I find that difficult to believe” was a personal aside, and was not and should not be understood to be a submission being made by him in his capacity as a prosecutor.

21. If the prosecutor had intended to make a submission that the defendant had feigned a lack of recollection, a serious breach of the rule in Browne v Dunn[9] had occurred.  The prosecutor had acknowledged that there had been no challenge because it had not crossed his mind.  If, on the other hand, this was not part of the prosecution case, then it was not open to the Magistrate to proceed in the way that he did. 

    [9]    Browne v Dunn (1894) 6 R 67 (H.L.).

1. In Browne v Dunn,[10] members of the House of Lords discussed the need to cross-examine to put a witness on notice that there was a challenge to the evidence given.  Lord Herschel observed:[11]

   Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. …

   [10]   Browne v Dunn (1894) 6 R 67 (H.L.).

   [11]   Browne v Dunn (1894) 6 R 67 (H.L.), 70.

2. To similar effect, Lord Halsbury said:[12]

   … I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. …

   [12]   Browne v Dunn (1894) 6 R 67 (H.L.), 76.

3. These observations were applied by Wells J in Reid v Kerr.[13]  His Honour’s commentary bears close study.  Wells J summarised what has come to be known as the rule in Browne v Dunn as follows:[14]

   Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which that witness took some part. As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have an opportunity of explanation. …

   [13]   Reid v Kerr (1974) 9 SASR 367, 372-373. See also Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 22-24.

   [14]   Reid v Kerr (1974) 9 SASR 367, 374-375.

4. The Judge under appeal misunderstood the import of the initial questions put by the prosecutor in cross-examination of the defendant.  As noted above, the prosecutor acknowledged to the Magistrate that he had not challenged the defendant’s account that he was genuine in asserting that he had no recollection of CC.  The prosecutor made it clear that it was not a matter that had crossed his mind.  The purpose of the initial questioning in cross-examination was not to challenge the defendant but was to confirm his earlier evidence.  As noted above, the prosecutor also accepted that the reference to “I find that difficult to believe” was a personal aside and no more. 

5. It follows that, on a critical aspect of the case, the defendant was not challenged as to the genuineness of his evidence that he had no recollection of the consultation with CC.  He was not challenged on his evidence that when he contacted the police to indicate that his earlier statement was incorrect, he was genuine in doing so.  He was not challenged by the Magistrate at all on this aspect of his evidence. 

6. Senior counsel who represented the defendant at trial deposed to the fact that there were a number of steps that would have been taken had there been any challenge to the defendant’s evidence on the topic of his recollection of the consultation with CC.  The video record of interview of 23 May 2010 would have been tendered to demonstrate, it was said, the difficulty the defendant had in recalling the consultation even when referring to his notes.  The video record of interview and transcript of the entirety of the interview of 13 June 2010 would have been tendered to demonstrate the veracity of the defendant’s claim to have not recalled the consultation.  Defence counsel would have further examined the defendant in relation to both interviews and would have cross-examined the interviewing officer in regard to the defendant’s demeanour during both interviews and during the telephone conversation that preceded the second interview.  It was said that evidence of other facts that supported the defendant’s claim not to have recalled the consultation would have been led.  This evidence would have included details of the defendant’s workload at the time and of the number of female patients who presented in similar circumstances to that of the complainant CC.  Finally, it was said that counsel would have assisted the Court with submissions and the citation of authorities with respect to the failure of the prosecutor to cross-examine.  It may be inferred that had the Magistrate raised his concerns on this topic, defence counsel would have sought to raise each of the above matters. 

7. The Magistrate made a specific finding that the defendant’s evidence that he had no recollection of CC was implausible.  The Magistrate went further and considered that the defendant’s evidence was significantly undermined.  The Magistrate rejected the evidence of the defendant.  Given that there was no challenge to the defendant’s evidence on the genuineness or otherwise of his lack of recollection, it follows that this finding and its impact on the defendant’s credibility cannot stand and that, accordingly, the conviction in respect of CC should be set aside and a retrial ordered. 

   The Second Count – AF

8. The prosecution case in respect of the second count related to an incident occurring some months later, on 15 July 2010, and involved a different and unrelated complainant.  It was the prosecution case that this complainant, AF, a young woman aged approximately 16 years and nine months, attended the medical centre.  In the course of her consultation with the defendant, it was the prosecution case that the complainant did not raise any concern about her breasts.  However, it was said that the defendant asked how she conducted her own breast examinations.  AF then demonstrated the manner in which she did so.  The defendant told her that this method was incorrect and offered to conduct a breast examination and to demonstrate the correct procedure.  AF agreed and removed her upper clothing. 

9. According to the prosecution case, the defendant then conducted a breast examination standing face to face with AF.  While doing so, he asked AF to raise both of her hands and she did so holding them above her head.  The defendant held both of her breasts and stroked one nipple with his fingers.  He then moved to stand behind her with his body in contact with hers.  In that position, he held both breasts, using both hands.  AF could feel the defendant’s erect penis pressed between her buttocks and the defendant rubbing himself against her.  It was the prosecution case that the defendant then told AF that she had lovely breasts and asked her whether he could keep playing with them.  She refused.  The defendant then apologised repeatedly to her. 

10. Evidence was led of complaint and of what were said to be later admissions by the defendant.  AF gave evidence that on 18 July 2010, three days after the consultation the subject of the charge, she returned and saw the defendant for a second consultation.  On this occasion, she secretly activated her mobile phone, enabling her sister and a friend, B McG, to overhear what was said during the consultation.  According to AF, the defendant apologised and in the course of that apology admitted the indecent assault.  AF’s sister was not called to give evidence.  B McG gave evidence initially confirming AF’s account of the apology, but in cross-examination acknowledged that the defendant’s account – of his having apologised for causing AF to feel uncomfortable but not having made any admission of any indecent conduct – could be accurate.

11. The defendant gave evidence denying any act of indecency.  He acknowledged that he had apologised to AF for having made her feel uncomfortable because of the nature of the medical examination, not because of any indecent conduct.

    The Magistrate’s Findings

12. In the course of his reasons, the Magistrate addressed the topic of the apology given by the defendant.  As discussed above, AF had given an account of a conversation with the defendant on a subsequent occasion to that on which the alleged incident occurred.  AF claimed that during this conversation the defendant “kept apologising to me and saying that he would do anything for me just to keep my mouth closed and not tell...he apologised because I’ve had sexual abuse in the past and he said ‘I shouldn’t have done what I did because of your past’”.  He begged her not to go any further with what had happened.  As noted above, B McG claimed to have heard part of the conversation between the defendant and AF. 

13. The Magistrate, when discussing B McG’s evidence, said:

    In cross-examination [B McG] agreed that she had discussed the incident with AF’s sister [V] before making a statement ‘to get it right’.  She denied that the defendant simply apologised for making AF uncomfortable.

    It appears that the Magistrate materially misunderstood the evidence of B McG.  In cross-examination, the following exchange occurred:

    Q.Well I suggest to you that the only words that you heard were along the lines of the doctor apologising for making [AF] feel uncomfortable.  Do you agree that might be possible.

    A.    Could be.

14. This evidence of B McG was important because, as noted above, the defendant acknowledged that he had said that he was sorry for making AF feel uncomfortable.  This was not, on his account, an admission that he had engaged in any indecent act.  Rather, it was a reference to the nature of the process of a breast examination.

15. The misunderstanding by the Magistrate contributed to his conclusion that the defendant’s version of the apology should be rejected.  The Magistrate considered that AF and B McG had given the same account of the apology.  This was incorrect.  B McG acknowledged that it was possible that the defendant’s version was correct.  It is apparent that the Magistrate failed to have regard to a proper understanding of B McG’s evidence. 

16. The Magistrate considered that the apology given to AF corroborated her account of the alleged assault.  In this respect, the Magistrate concluded:

    The apology given to AF at the second consultation by the defendant further corroborates her account of the assault.  It is not disputed that an apology was given.  Both AF and BMcG, who was secretly listening in, gave evidence of the apology and I reject the defendant’s exculpatory explanation.

    The Magistrate, in concluding that the apology provided corroboration, proceeded on the basis that the apology was in the terms described by AF.  On this critical issue, the Magistrate misunderstood the evidence of B McG.  As a consequence, his Honour’s rejection of the defendant’s evidence cannot be sustained.

17. The Director contended that the terms of the defendant’s apology were not material.  It was said that the Magistrate rejected the defendant’s explanation for apologising because he sensed that AF became uncomfortable.  The Magistrate considered this explanation to be implausible in that there would be little that would cause AF to be upset on the defendant’s version of events.  It was contended that the Magistrate did not rely upon the content of the apology in rejecting the defendant’s explanation.

18. We reject this contention.  It is unrealistic to divorce the Magistrate’s consideration of the defendant’s evidence as to the apology from the Magistrate’s misunderstanding of B McG’s evidence and the mistaken characterisation of inconsistency with the defendant’s evidence as to the wording of the apology.  In any event, it cannot be said that the defendant’s own explanation was so implausible as to warrant rejection out of hand.  A breast examination by a doctor is an inherently private and intimate procedure and some patients may well be expected to be uncomfortable during the procedure.

19. The attention of the Judge under appeal was drawn to the evidence of B McG, as discussed above, and to what was suggested to be the Magistrate’s misunderstanding on this important topic.  However, the Judge did not address this issue in the course of his reasons.

20. Findings as to credit were critical in respect of both counts.  As there was a joint trial, the flawed findings, both in respect of CC and AF, impacted adversely on the credit of the defendant when each separate count was considered.  It was not possible for the Magistrate to separate his views of the defendant on credit in respect of CC and AF when considering the charge against the other. 

21. In the circumstances, for the reasons discussed above, both convictions should be set aside and retrials ordered. 

    A Further Matter

22. On the appeal, a complaint was made about the cross-admissibility of evidence on the two counts.  The question of cross-admissibility was barely explored at trial.  The Magistrate does not appear to have had regard to the High Court decision in Phillips.[15]  It should be immediately pointed out that the Judge under appeal gave close consideration to the observations of the High Court in Phillips[16] in his consideration of this ground. 

    [15]   Phillips v The Queen (2006) 225 CLR 303.

    [16]   Phillips v The Queen (2006) 225 CLR 303.

23. We consider that the approach identified by the High Court should have been carefully followed and applied.  We do not propose to further consider this ground of appeal as there is to be a retrial.  Presumably, on the retrial, issues concerning the admissibility of evidence of discreditable conduct will arise and the question of cross-admissibility will need to be considered.

    Conclusion

24. The appeal is allowed.  The convictions are set aside.  The sentence imposed by the Magistrate is set aside.  The proceedings are remitted for retrial before a differently constituted Court.