Ibrahim v Police - [2012] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
IBRAHIM v POLICE
[2012] SASC 231
Judgment of The Honourable Justice White
19 December 2012
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - PROCEDURE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - GENERALLY
EVIDENCE - WITNESSES - CORROBORATION
The appellant is a general practitioner - he was found guilty by a Magistrate of the indecent assault of two of his patients - the appellant appeals against those convictions.
Held (dismissing the appeal):
(1) the Magistrate identified in his reasons the conduct constituting the indecent assaults and the appellant knew the conduct relied upon by the prosecution for its charges, (at [53]-[54]);
(2) the conduct alleged plainly went beyond the bounds of an acceptable medical examination, and the possibility that the complainants had impliedly consented or that the appellant had a lawful excuse for the conduct was not reasonably open, (at [56]);
(3) the Magistrate applied correctly the onus and standard of proof - this was not a case in which the Magistrate merely preferred the evidence of the complainants to that of the appellant; the Magistrate made positive findings rejecting the appellant's evidence, and expressly considered whether the appellant's evidence, although rejected, was sufficient to give rise to a reasonable doubt, (at [72]-[75]);
(4) it cannot be said that the Magistrate failed to consider the appellant's evidence or to give reasons for his rejection of it, (at [82]);
(5) the Magistrate was correct in concluding that it is objectively improbable that, without collusion or concoction, two patients who did not know each other would give such similar accounts if they were mistaken or lying, (at [90]);
(6) it was open to the Magistrate to look to corroborative evidence when deciding whether or not to accept the disputed evidence of the second complainant, (at [94], [96]);
(7) the appellant was sufficiently on notice that his claim of having no recollection of the first complainant was in issue, (at [112]);
(8) the discrepancies in the first complainant's evidence about the appellant's gift of a medication are not matters which can reasonably be understood as undermining the Magistrate's assessment of the first complainant's reliability, (at [122]);
(9) the Magistrate's reasons bespeak a close attention to the evidence and a close consideration of the matter - the absence of mention of the minor inconsistencies to which the appellant now refers does not indicate a failure by the Magistrate to have proper regard to the evidence, (at [137]);
(10) the Magistrate's reasons were sufficient, (at [140]);
(11) there was a sound basis for the Magistrate's verdicts and they should not be characterised as unsafe, unsatisfactory or unsupported by the evidence, (at [142]).
Criminal Law Consolidation Act 1935 (SA), s 56, referred to.
R v Chen [1997] QCA 355; R v Calides (1983) 34 SASR 355;

Details

AGLC: Ibrahim v Police [2012] SASC 231
Case: [2012] SASC 231
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the case of Ibrahim v Police, the appellant, a general practitioner, appealed against his convictions for the indecent assault of two of his patients. The case originated in the Magistrates Court of South Australia, and the appeal was brought before the Supreme Court. The appellant was found guilty of indecently assaulting CC on 31 March 2010 and AF on 15 July 2010. The primary legal issues before the court were whether the Magistrate correctly assessed the credibility of the complainants' evidence and whether the evidence of BMcG, who overheard a conversation between AF and the appellant, was properly considered as corroborative evidence.

The court addressed the issue of the credibility of the complainants' evidence. The Magistrate found CC to be a convincing witness based on her demeanour and the consistency of her account. However, the Magistrate considered certain aspects of AF’s evidence to be unreliable, though still found her account of the alleged assault convincing. The appellant argued that the Magistrate erred in considering BMcG's evidence as corroborative of AF’s account, given that parts of AF’s evidence were deemed unreliable. The court clarified that Australian courts look to corroborative evidence when deciding whether to accept disputed evidence, not after making that decision. Therefore, the Magistrate was not in error in considering BMcG's evidence as corroborative, as it was relevant in determining whether to accept AF’s evidence.

The court upheld the convictions, finding no error in the Magistrate's assessment of the evidence and the application of the principle of corroboration. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

AF reported the incident on 13 January 2011. When spoken to by the police, the appellant denied AF’s allegations and exercised his right to silence.The Appellant’s Evidence The appellant gave evidence in his own defence and did not call any other evidence. He said that the medical centre was busy and that he would see on average 50 patients a day and work some 50 hours a week. The appellant said that he did not recall the consultation with CC on 31 March 2010 but accepted that he had seen her on that date and that the notes recording the consultation were his. Using the notes, the appellant explained what he thought had occurred in the consultation. The notes indicated that CC had presented with a recent history of lethargy and bruises and that she had complained about a lump on her right breast. The appellant’s initial impression was that the lump was folliculitis, a superficial inflammation or infection of a sweat gland. He offered CC antibiotics but in the end result did not prescribe any. He could not recall why that was so. The appellant assumed that CC had undressed so that he could examine the lump on her right breast. The appellant said that his usual practice when conducting a breast examination was to ask the patient to stand and to place one hand behind her head. He then stands in front of the patient to conduct the examination. Whilst doing so he explains to the patient the appropriate method for self‑examination. The appellant acknowledged that having the patient stand during the course of an examination was “a modified position that I adopted myself” (CB 245) and said that he had seen a doctor doing likewise on a “few occasions” during his medical training (CB 246). The notes of the consultation on 31 March 2010 also indicated that CC had complained of discomfort when urinating and discomfort in her vagina. The appellant said that he had counselled her regarding STDs and had organised a urine test and a blood test. The appellant said that if he had prescribed Duromine at the consultation he would have recorded that in the case notes. There was no such record. The pathology reports indicated CC’s samples were positive for chlamydia. The appellant asked the medical centre staff to contact CC to ask her to re‑attend for advice and treatment in relation to the chlamydia. Initially CC did not respond. On 21 April 2010 the medical centre sent a further letter advising CC of the results and requesting her to contact the centre. Eventually contact was made with CC by the reception staff on 22 April 2010 and she was put through to the appellant. The appellant said that he did not recall the conversation but the case notes indicated that he had advised CC to return to the centre to collect a prescription for antibiotics. The appellant denied the prosecution allegations of indecent conduct towards CC. The appellant did recall his consultation with AF on 15 July 2010 and gave evidence about it by reference to that recollection and by reference to the centre’s case notes.

Decision

Reasons for decision

WHITE J

The appellant denied that any indecent conduct involving AF took place. He said that the touching and contact which had occurred was part of a proper medical treatment examination.The Decision of the Magistrate The Magistrate noted (at [4], [14], [182]) that it was common ground that the conduct alleged by CC and AF, if it had occurred, went beyond a proper medical examination and amounted in each case to an indecent assault. In addition to the evidence of CC, AF and BMcG, the prosecution led evidence from AW, the friend who had accompanied CC to the surgery on 31 March 2010, and from the two investigating police officers, Detectives Lang and Clarke. The Magistrate also had some documentary evidence and a series of agreed facts, but the prosecution led no evidence as to the accepted manner of conduct of breast examinations. One of the agreed facts was as follows:Dr Lynton Stephens, a general practitioner, of the Modbury Medical Centre provided a statement to SA Police. Dr Stephens holds the view that a breast examination should usually be done with the patient sitting down and by examining one breast at a time.The Magistrate said, however, that he did not regard this agreed fact as providing any assistance. After reviewing the evidence in some detail and analysing aspects of it, the Magistrate found CC to be “a convincing witness” and said that he was persuaded by her evidence. He said:[148]In Court CC presented as a good witness. She was frank and natural and gave her evidence in an uncoloured matter of fact style. She did not appear to be motivated by any antipathy towards the defendant. Her evidence‑in‑chief was not shaken in cross‑examination. In my view she presented as both an honest and reliable witness.[149]Her account was plausible. It was plausible that the defendant may have been attracted to her. The term “naughty things” attributed to the defendant is a slightly old fashioned expression. The defendant presented as a studious and conservative person. The term “naughty things” is a term that was in keeping with that presentation. Furthermore it is not a term that I would expect CC to use herself in her everyday language nor is it a term I consider that she would be likely to choose if she was fabricating her account. Her account had verisimilitude. Later, he said:[156]In conclusion I found CC to be a convincing witness both having regard to her demeanour and the consistency of her account with surrounding facts. Her convictions for dishonesty are a cause for concern. It is plain that she can be dishonest to suit herself when she is of a mind to be. However, even after taking that into account, I remain persuaded by her evidence. Although the Magistrate considered AF to be an honest witness, he considered that certain aspects of her evidence were not reliable. She was mistaken about the number of telephone calls she had received from the appellant and about aspects of her medical history. She was confused about the purpose of the consultation on 15 July 2010 and had forgotten all about the third consultation with the appellant on 5 August 2010. The Magistrate considered that some aspects of her evidence involved elements of reconstruction and that in other respects her evidence was not “balanced and dispassionate”.[2] He then continued:[176]… These matters potentially detract from the weight to be given to her account of the alleged assault. Even so, her evidence with respect to the alleged assault was convincing. She presented as someone giving evidence of those details from her clear recollection of events and not reconstructing them. In this respect I consider that she was an honest witness and did not set out to mislead the Court. The Magistrate also regarded BMcG’s evidence of what she had overheard via AF’s mobile phone as supporting AF’s account of the appellant’s apology.[2] Reasons at [158]-[160].

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

It is to be observed that the appellant did not contend on the appeal that the two counts had been inappropriately joined, or that the Magistrate had erred in rejecting his pre‑trial application that they should be severed.Corroboration of AF The appellant submitted that the Magistrate had been wrong to regard the evidence of BMcG as corroborating AF’s evidence. Counsel contended that the evidence of AF, having been assessed by the Magistrate as unreliable, was not capable of being corroborated by other evidence. She referred to Director of Public Prosecutions v Kilbourne[38] in which Lord Hailsham said:Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise. … [C]orroboration is a doctrine applying to otherwise credible testimony and not to testimony incredible in itself.[39][38] [1973] AC 729.[39] Ibid at 746-7. I observe first that the Magistrate did not regard the evidence of AF as being completely unreliable. He identified certain aspects only as being unreliable. It was open to the Magistrate to be satisfied by some aspects of AF’s evidence even though he was not satisfied of other aspects. However, more fundamentally, the approach suggested by Lord Hailsham in Kilbourne, if understood literally, has not been followed in this country. Australian courts look to corroborative evidence when deciding whether disputed evidence may be accepted and not after that decision has been made. Thus, in R v Doney,[40] Hunt J said:It was submitted by the appellant that the jury should have been directed that it should first decide whether to accept the evidence of the accomplice (Freeman) before looking for corroboration of that evidence. …The appellant’s submission is contrary to what has generally been understood to be the use to which corroboration is put. As I understand it, if the tribunal of fact is in doubt as to whether to accept the evidence of any particular witness, it looks at what is put forward as corroboration in order to determine whether or not it will accept the evidence of that witness. In other words, it looks for corroboration of that evidence before deciding whether or not to accept that evidence. The appellant’s submission is that it should not look for corroboration until after it has decided to accept it. …[R]eliance was placed by the appellant upon what Lord Hailsham LC said in Kilbourne …: “Corroboration can only be afforded to or by a witness who is otherwise to be believed”.Taken out of its context, that statement may perhaps afford some support for what is otherwise a surprising proposition. But the slightest reference to the context of that statement demonstrates that the Lord Chancellor was not asserting that the witness must first be accepted before consideration could be given to the question of corroboration. The phrase “to be believed” used in that sentence means simply “credible”, not “accepted”. His Lordship was only saying that evidence which is itself incredible should be rejected before any question of corroboration is considered. [41](Emphasis in original, citation omitted)[40] (1988) 37 A Crim R 288.[41] Ibid at 298-9.