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; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; Phillips v The Queen (2006) 225 CLR 303; Director of Public Prosecutions v Kilbourne [1973] AC 729; R v Doney (1988) 37 A Crim R 288; R v Panagiotidis (1990) 55 SASR 172; Browne v Dunn (1983) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88, considered.

IBRAHIM v POLICE
[2012] SASC 231
Magistrates Appeal

WHITE J. The appellant is a general practitioner. A Magistrate found him guilty of the indecent assault[1] of two of his patients. The appellant appeals against those convictions.
[1] Criminal Law Consolidation Act 1935 (SA) s 56(1).
Count 1: The Prosecution Case
Count 1 alleged an indecent assault of CC on 31 March 2010. CC was then 21 years old. She gave evidence that on 31 March she had attended the medical centre at which the appellant worked because of concerns about her weight and to have a sore (in the form of a red swollen lump) on her right breast examined.
CC saw the appellant. During the consultation the appellant conducted a breast examination. In order that he could do so, CC removed her upper clothing and bra. Initially, the appellant stood to her right, holding her right breast in one hand and “sectioning it off” with the other. The appellant then asked CC to raise both her arms. At the same time the appellant moved behind her. CC raised both arms and stood with her hands touching her shoulders. In that position, he fondled both breasts and pulled her back into contact with the front of his body. CC said that she could feel his belt buckle on her bottom and his chest against her back. She described the appellant fondling her breasts in the same manner as did her partner and said that this continued for about 20 seconds. The appellant complimented CC on her breasts and said “I would like to do some naughty things to you”. He then kissed CC on her neck and moved his left hand to come into contact with her hip at the top of her tracksuit pants.
CC rejected these advances, became upset and cried. The appellant then became profusely apologetic, and mentioned his wife and children. The appellant asked CC not to leave the consulting room crying, and gave her a sample pack of Duromine, an expensive weight loss medication.
CC had been accompanied to the consultation by AW, her friend. AW sat in the waiting room during the consultation. AW gave evidence that when CC came out of the consultation room she was crying, but initially would not say why. However, when they got home, AW reported CC telling her that “she was getting her boobs checked and then he came behind her and he had a boner and he like leant a bit forward and stuck it into her back.” (CB 86) AW reported CC telling her that she had then said, “Excuse me”, to which the appellant had responded, “Please don’t say anything, don’t tell, I’ve got a wife and kids at home” and that he had given her free Duromine “to keep her mouth shut”.
Before commencing the breast examination, the appellant had suggested to CC that a test should be carried out for STDs. After the breast examination, and whilst CC was still crying, he gave her a small bottle for a urine sample. CC produced a sample after leaving the consultation room and returned the bottle to the reception desk. Later, a test of the sample proved positive for chlamydia.
The medical centre then sent two letters to CC regarding the test results to which she did not respond. Subsequently, on 22 April 2010, the appellant telephoned CC, telling her of the test result and of the need for treatment. CC said that the appellant told her that he would understand if she did not wish to see him again, and that he would leave a script for her at the reception desk. This occurred, and CC did later collect the script.
On 19 April 2010, (a few days before receiving the appellant’s telephone call), CC reported the incident to the police. She told them at that time that the incident had occurred on 8 April 2010, but at trial it was common ground that the only date on which she had consulted the appellant was 31 March.
The appellant participated in a recorded interview with the police on 23 May 2010, in which he denied CC’s allegations.
Count 2: The Prosecution Case
Count 2 concerned AF who was 16 years and nine months old at the time of the incident she described.
AF attended at the medical centre on 15 July 2010 and saw the appellant. This was after the appellant had been interviewed by the police in relation to the incident reported by CC.
AF said that she did not mention to the appellant any concern about her breasts. However, the appellant asked AF how she conducted her own breast examinations and she demonstrated the manner in which she did so. The appellant told her that her method was incorrect and offered to conduct a breast examination and to demonstrate the correct way. AF agreed and removed her upper clothing.
The appellant then conducted a breast examination standing face to face with AF. While doing so, he asked AF to raise both her arms and she did so, holding them straight up above her head. AF described the appellant holding both her breasts and stroking 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 her breasts, using both his hands. AF said that she could feel the appellant’s erect penis pressed between her buttocks and the appellant rubbing himself against her. She said that the appellant told her that she had lovely breasts and asked if he could keep playing with them. She refused and the appellant then apologised repeatedly to her.
AF said that after leaving the surgery, she went to her grandmother’s house. She told her grandmother of what had occurred. While at her grandmother’s home, AF received a telephone call from the appellant, but when she realised who it was, hung up immediately. AF said that in the weeks which followed she received multiple telephone calls from the appellant but, for the most part, she had refused to speak to him.
On 18 July 2010 AF attended the medical centre again and saw the appellant. During this consultation, she activated her mobile phone secretly, allowing her sister, VM, and a friend, BMcG, to hear the conversation. AF said that during the consultation, the appellant repeatedly apologised and asked her not to report him.
VM did not give evidence in the trial. The evidence indicated that she was hospitalised at the time because of childbirth. BMcG gave evidence that she heard via the mobile phone the appellant say to AF that he was sorry for touching her inappropriately, and asking if there was anything which he could do in order that AF may forgive him.
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.
The appellant said that he had reviewed a blood test previously arranged by another doctor and had some discussion with AF about STDs. He explained to her the importance of her providing a urine sample for testing.
AF then raised a concern about a lump in her right breast. The appellant asked her to undress so that he could conduct an examination. While she did so he left the room to see if a chaperone could be present during the examination. However, none were available. He returned and informed AF of this. She agreed that the appellant could proceed with the examination without a chaperone.
The appellant conducted his examination of AF while both were standing, he in front of her. He demonstrated to AF the proper method for self‑examination of her breasts. The appellant could not locate a lump in AF’s right breast and he sat to record this in the notes. He then asked AF to conduct an examination herself of her left breast. When she did this incorrectly he again stood and demonstrated the correct examination technique.
The appellant said that he then told AF that he needed to squeeze her right breast. He said in evidence that this was a normal part of a breast examination. When he did so, AF leaned back and appeared unhappy so the appellant did not proceed. He said that he felt uneasy at the time about how the consultation had unfolded.
The appellant asked AF to return the following Sunday to review the results of her urine test. When he learnt later on 15 July that she had not provided the urine sample, he asked the reception staff to contact her and to remind her to provide one.
On 18 July 2010, the appellant learnt that AF had still not provided a sample. He then telephoned her and reminded her to do so. She attended the medical centre later that day and saw him. The appellant said that he had then apologised to AF for any discomfort she had experienced during the previous consultation. This related to her reaction when he had been about to squeeze her right breast.
The appellant said that on 18 July there was some further discussion with AF about her painful urination and issues relating to her mental health and lifestyle. He organised an ultrasound for her breast and another urine test. On this occasion AF provided the sample before leaving the centre.
On 22 July 2010 the appellant telephoned AF to inform her that the results of the test were available. He told her that in view of the results and her symptoms he would prescribe antibiotics and leave the prescription at the reception desk for her to collect.
On 5 August 2010 the appellant saw AF for a third time. They reviewed the ultrasound results which were inconclusive. The appellant referred AF to the Lyell McEwen Hospital.
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].

The Magistrate considered that the appellant had given his evidence well and noted his good character. Nevertheless, he considered that the appellant’s credibility was undermined by statements which he had made in the recorded interview on 23 May 2010, to which I will return later.
The Magistrate also referred to the many points of similarity in the accounts of CC and AF. He considered it improbable that both would give such similar accounts if they were mistaken or lying about the conduct they alleged. The Magistrate held that there was no real possibility of concoction between CC and AF, noting that the suggestion had not even been raised during their respective cross-examinations.
As already noted, the Magistrate considered that the evidence of the appellant’s apology at his second consultation with AF corroborated AF’s account. He rejected the appellant’s exculpatory explanation for that apology.
In relation to Count 1, the Magistrate concluded:
[175]In conclusion I accept the evidence of CC and reject the evidence of the defendant. Her evidence was persuasive in presentation, plausible and supported by surrounding facts. Her evidence is sufficient to satisfy me beyond doubt. The defendant’s evidence did not cast any doubt on the reliability of her evidence.
In relation to Count 2 the Magistrate considered that any concerns about the reliability of AF’s account were resolved by the similarity of the accounts given by the two complainants and by the evidence of the apology of the appellant to AF on 18 July 2010. Accordingly, he found both charges proved.
Thus, the Magistrate considered that the evidence adduced in relation to Count 1 was sufficient by itself to satisfy him beyond reasonable doubt of the appellant’s guilt. However, in relation to Count 2, the Magistrate relied upon both the evidence led in relation to that Count and the similarities between that evidence and the evidence which CC had given in relation to Count 1.
The Appeal
The appellant’s counsel subjected the Magistrate’s reasons and the trial evidence to a detailed analysis. The amended notice of appeal contains some 14 separate grounds and many of these have sub‑paragraphs containing further separate complaints. Some were pitched at a level of considerable generality, and some concerned matters which were inconsequential or at the periphery of the issues to be considered by the Magistrate.
Many of the appellant’s grounds are complaints, expressed in different ways, about the Magistrate’s acceptance of the evidence of the two complainants, his process of reasoning, the adequacy of his reasons and about whether the Magistrate had had regard to every item of evidence capable of bearing on the reliability of the complainants’ evidence.
On the appeal, the Court must conduct a real review of the evidence in order to determine whether the appellant was properly convicted. In doing so, the Court should make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. However, if there are incontrovertible facts, or uncontested testimony, or the Magistrate’s conclusion is glaringly improbable, the Court will, despite the Magistrate’s preference for the evidence of a particular witness, substitute its own judgment. Further, if the question is one of inferences to be drawn from facts found or evidence accepted by the Magistrate, the Court can substitute its own decision if it comes to a different conclusion as to the correct inferences to be drawn. With this approach in mind, I have reviewed the entire transcript of the evidence at trial as well as the written exhibits.
Identifying the Particular Conduct Constituting the Indecent Assaults
The appellant contended that the Magistrate had erred by not identifying in his reasons the particular conduct which was the subject of each charge. This had the consequence, it was said, that the Magistrate had not considered whether the contact relied upon by the prosecution had been part of a proper medical examination to which the complainants had consented, or was contact for which the appellant had a lawful excuse. This was linked to a submission that, in the absence of expert evidence, the Magistrate could not exclude the possibility that the appellant’s conduct was a reasonable manner of performing a breast examination. It also meant, it was submitted, that the Magistrate had not considered sufficiently closely the differences between the initial complaints of the complainants and the incidents they described in their evidence.
The appellant did not contend that the two counts in the Information were uncertain or duplicitous or that he had been unaware at trial of the conduct alleged by the prosecution to constitute each offence. Counsel did, however, rely on R v Chen[3] in which the Court of Appeal in Queensland quashed convictions for assaulting police officers on the grounds that the counts alleging the offence were duplicitous. That was because the episode alleged by the prosecution involved six separate identifiable assaults on the police officers and there was uncertainty as to which particular conduct was relied upon for the offence. The Court said:
… [T]hough the various alleged assaults occurred within a short space of time and were part of a connected series of events they were of different kinds, the evidence with respect to them differed both in quantity and quality and there were defences open to some which arguably were not open to others. That they were of different kinds appears from the descriptions above: three were of spitting, one was a push, one was striking with handcuffs and one involved grabbing Constable Smith’s genitals.[4]
[3] [1997] QCA 355.
[4] Ibid.
In relation to CC, the Magistrate summarised the conduct said to comprise the offence as follows:
In the course of the examination the defendant held CC’s breast with his hand standing face to face. She was asked to raise both her arms. He moved behind her, fondled both of her breasts with both of his hands from behind and pushed her back into the front of his body. She could feel his belt buckle in her back. He complimented her on her breasts, kissed her on the neck and said “I would like to do naughty things to you”. CC rejected his advances and the defendant became profusely apologetic for his inappropriate behaviour, mentioning his wife and children.[5]
[5] Reasons at [3].
In relation to AF, the Magistrate summarised relevant conduct in the following passage:
A breast examination was conducted with both AF and the defendant standing face to face. She was asked to raise both her arms. During the course of the examination it is alleged that the defendant held both AF’s breasts and stroked the nipple of one breast with his fingers. He complimented her on her breasts and moved behind her holding both her breasts with both of his hands from behind and pushed her back into the front of his body. AF alleges that she could feel that the defendant had an erection as it was pressed between her buttocks. He said that she had lovely breasts and asked her if he could keep playing with them. She refused and the defendant apologised to her.[6]
It is true that these passages appear in the Magistrate’s summary of the whole of the evidence of the two complainants and not as a discrete description of the offending conduct, but in context they indicate clearly enough the conduct said to amount to the indecent assaults.
[6] Ibid at [11].
The appellant can hardly have been in any doubt at trial as to the conduct alleged by the prosecution for each offence. He was represented throughout the trial by Mrs Shaw QC. There is no suggestion that Mrs Shaw and the appellant did not know at the trial of the conduct relied upon by the prosecution for its charges. The submissions by Mrs Shaw QC when seeking severance of the two counts indicate an awareness of the conduct said by the prosecution to constitute each offence, [7] as did the evidence‑in‑chief led from the appellant.
[7] Outline of Defendant in Relation to Joinder and Severance at [6.3], [6.9].
In my opinion, this is not a case in which the reasoning in R v Chen is applicable. The conduct alleged by the prosecution to amount to the indecent assault in each case was not conduct of different kinds, with each kind capable separately of constituting an assault.
Further, the Magistrate did not need expert evidence concerning the manner in which breast examinations may be conducted appropriately in order to be able to conclude that the conduct of the appellant described by each complainant (which included his statements) plainly went beyond the bounds of an acceptable medical examination. The possibility that the complainants had impliedly consented to the particular conduct of the appellant of which they complained or that he had a lawful excuse for the conduct was not reasonably open.
I observe that the appellant did not contend that the statements made by the Magistrate to the effect that the conduct alleged by the prosecution, if proved, went beyond a proper medical examination and comprised an indecent assault were erroneous. As already noted, this was common ground at the trial. That fact undermines the appellant’s present submission that, in the absence of expert evidence, the Magistrate could not exclude the possibility that the appellant’s conduct was a reasonable method of performing a breast examination.
Counsel referred to the evidence of CC that, after fondling both her breasts, the appellant had touched her on her hip at the top of her tracksuit pants with his left hand. She submitted that this was a distinct piece of conduct and may have been the conduct which the Magistrate understood comprised the indecent assault on CC. I reject that submission. It is not a view of the case which is reasonably available. The Magistrate’s understanding is set out in the extract from his reasons set out earlier. In that extract the Magistrate did not refer at all to CC’s evidence about the movement of the appellant’s left hand.
“Preference” for the Evidence of CC and the Criminal Standard of Proof
Both the onus of proof and the standard of proof must be correctly applied.[8] This means that the trier of fact in a criminal trial is not simply to determine whose evidence, prosecution or defence, is to be preferred. The question is always whether the prosecution has proved each element of the offence beyond reasonable doubt. Even when the prosecution evidence is preferred or accepted, it may be insufficient to meet that standard.[9]
[8] R v Calides (1983) 34 SASR 355 at 358.
[9] Liberato v The Queen (1985) 159 CLR 507 at 515; Murray v The Queen [2002] HCA 26 at [57], (2002) 211 CLR 193 at 213; Douglassv The Queen [2012] HCA 34 at [13]; (2012) 86 ALJR 1086 at 1089-90.
The appellant submitted that, despite the Magistrate indicating an awareness as to the proper standard of proof, the reasons disclose that he had treated his acceptance of the complainants’ evidence as establishing, without more, that the prosecution cases, in particular that concerning CC, had been proved beyond reasonable doubt. He referred in particular to [175] of the Magistrate’s reasons quoted earlier, and to the final two paragraphs in the reasons:
[182]There is no issue that on accepting the evidence of each complainant the elements of each assault are made out. There is no issue concerning the feature of aggravation alleged.
[183]I find both charges proven beyond doubt.
The appellant emphasised the Magistrate’s use of the word “accept” and its cognate in those paragraphs. In addition, the appellant referred to the structure of that part of the Magistrate’s reasons under the heading “Analysis of the Evidence”. This section followed the Magistrate’s summary of the evidence of each witness and his directions concerning the onus and standard of proof.
The structure of this section involved a consideration in turn of the evidence of CC, AF and the appellant. The analysis of CC’s evidence concluded at [156], quoted earlier in these reasons. The analysis of the appellant’s evidence culminated in the statement of the Magistrate in [175] that “I accept the evidence of CC and reject the evidence of the defendant”.
Thus, it was said that the Magistrate had proceeded on an acceptance of the principal prosecution witnesses without considering, as he should have, whether that evidence which he did accept was sufficient to establish the charges beyond reasonable doubt. Counsel described this as “the fundamental complaint” on the appeal.
Related to this submission were two further inter‑related submissions. These were that the Magistrate had not proceeded as required by established principle; that is, by not convicting the appellant unless satisfied that his account was not reasonably possibly true, or, alternatively, that the Magistrate’s reasons were not sufficient to indicate that he had reasoned in accordance with this principle. The appellant referred the Court in this respect to the decision of the High Court in Douglass v The Queen.[10]
[10] [2012] HCA 34; (2012) 86 ALJR 1086.
In Douglass the appellant had advanced two contentions. The first was that the judge trying his case without a jury had given insufficient reasons for the verdict. The second was that the verdict was unsafe or unsatisfactory because, on the evidence at trial, it had not been open to the judge to be satisfied beyond reasonable doubt of his guilt.
The High Court upheld both grounds. It was, however, the appellant’s success on the second which led to the appeal being allowed and the conviction quashed. In that circumstance it was not necessary for the High Court to address the consequences of the inadequacy in the Judge’s reasons.
In relation to the sufficiency of reasons, the High Court restated the matters of approach summarised above. When the account given by a complainant comprises, in effect, the whole of the prosecution case and is contradicted by the defendant’s evidence, the trial is not to be regarded as reducing to a case of word against word. The critical question is whether the elements of the offence have been proved beyond reasonable doubt and that determination is not to be made by a consideration of whose evidence is “preferred”. Even if the evidence of a complainant is preferred, the trier of fact must still consider whether it is sufficient to exclude a reasonable doubt as to the defendant’s innocence. This meant that it was not open to the judge to convict unless satisfied that the defendant’s account “was not reasonably possibly true”.
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.[11]
[11] Ibid at [13]; 1089-90.
The trial judge in Douglass had not positively rejected the defendant’s evidence. In fact, the judge in Douglass had said that he did not find anything in the defendant’s demeanour which assisted the prosecution. It was the omission of the judge, in these circumstances, to give any further reasons concerning the appellant’s evidence which gave rise to the insufficiency in his reasons. It meant that the judge had not explained why he did not accept the accused’s account as being reasonably possible, and left open the possibility that the judge had simply acted on his preference for the complainants’ evidence, thereby applying a standard of proof which was less than the criminal standard.
In this way Douglass confirms that the reasons of a judge sitting without a jury must be sufficient to indicate that the judge has applied the correct principles of law. The same proposition applies to magistrates. There is of course more than one way by which a judge or magistrate may discharge this responsibility.
The appellant submitted that the High Court in Douglass had also held that, in a case like the present, the trier of fact could not convict without first rejecting a defendant’s sworn denial of the offence. The submissions seemed to contemplate that the trier of fact should engage in a sequential process of reasoning with the evidence of the defendant being considered by itself, rather as though it was compartmentalised from the evidence adduced by the prosecution.
In my respectful opinion, this is not a proper understanding of Douglass. Instead, the High Court was emphasising that, even in a case in which a complainant’s evidence is preferred, that evidence must still be capable of establishing each element of the offence beyond reasonable doubt. That in turn involves satisfaction that the truth of the defendant’s account has been excluded as a reasonable possibility. These determinations are to be made having regard to the whole of the evidence. It does not follow from the proposition that the trier of fact may not convict unless satisfied that it is not reasonably possible that the defendant’s account is true, that that is the matter which is to be considered first by the trier of fact or in isolation from the remainder of the evidence
In my opinion, the Magistrate did not make any of the errors which the appellant imputed to him. First, I note that the Magistrate directed himself in conventional terms as to the onus and standard of proof. I accept that this is not conclusive as it is possible that the Magistrate may nevertheless have slipped into an inappropriate form of reasoning. It is, however, a pertinent consideration.
Secondly, this is not a case in which the Magistrate merely preferred the evidence of the complainants or had doubts about the appellant’s evidence. Instead, he made a positive finding rejecting the appellant’s evidence,[12] a positive finding that it was improbable that two complainants would independently give such similar accounts unless they were telling the truth,[13] and a positive finding rejecting the appellant’s exculpatory explanation for his apology to AF.[14]
[12] Reasons at [175].
[13] Ibid at [177].
[14] Ibid at [181].
Further, having said that he accepted CC’s evidence, the Magistrate then addressed separately whether that evidence established the prosecution case on Count 1 beyond reasonable doubt. He held that it did[15] and, in doing so, said expressly that the defendant’s evidence had not cast any doubt on the reliability of CC’s evidence. In this way, the Magistrate considered expressly whether the appellant’s evidence, although rejected, was sufficient to give rise to a reasonable doubt.
[15] Ibid at [175].
Thirdly, and contrary to the appellant’s submission, the Magistrate’s reasons at [182] do not indicate that he had reasoned from his mere acceptance of the complainants’ evidence to the conclusion that the charges were proved. Instead, in that paragraph the Magistrate was referring to the matter of common ground, namely, that if he was satisfied that the charged conduct had occurred, that conduct amounted in each case to an indecent assault. In other words, the Magistrate was explaining why he was not providing reasons for the characterisation of the proven conduct as assaults of an indecent kind. Paragraph [182] is to be read in conjunction with [4] and [14] of the Magistrate’s reasons. These paragraphs in combination explain why the Magistrate did not consider separately the elements of an indecent assault. Given the acceptance at trial on both sides that the conduct alleged by the prosecution, if proved beyond reasonable doubt, was in each case an indecent assault, there was no reason for him to do so.
Contrary to the appellant’s submissions, the Magistrate’s reasons in this case were sufficient to indicate that he had applied the correct legal principle. The circumstances considered by the High Court in Douglass v The Queen are to be distinguished.

I mention a related matter. The Magistrate referred to several aspects of CC’s evidence as being “plausible”.[16] Counsel submitted that this involved a subtle inversion of the onus of proof. As I understood the argument, this was because it implied that, CC’s evidence having met the threshold of plausibility, it was incumbent upon the appellant to disprove that evidence.
[16] Ibid at [149]-[151].
I do not accept this submission. I consider that the Magistrate was indicating no more than that he regarded CC’s evidence as having an appearance of truth. He was articulating a step in his evaluation of CC’s evidence. It was a factor pointing in favour of its acceptance and, in turn, to his satisfaction that CC’s evidence established Count 1 beyond reasonable doubt. Counsel did not point to any passage in the reasons indicating that the Magistrate had used his finding of plausibility to invert the onus of proof.
Reasons for Rejection of the Appellant’s Evidence
The appellant submitted that the Magistrate had failed to consider the defendant’s evidence and to give reasons for rejecting it. This too was said to be a “fundamental” complaint on the appeal.
The Magistrate referred to a number of matters bearing on his assessment of the honesty and reliability of the appellant’s evidence at trial. Many were favourable to the appellant. The Magistrate recorded that the appellant had given his evidence well, being responsive to questions, polite and respectful, and that he had not wavered in cross‑examination.[17] The appellant tendered character evidence and it is implicit in the Magistrate’s reasons that he accepted that the appellant was a person of good character.[18] The Magistrate gave the appellant credit for giving evidence and being willing to subject himself to cross‑examination when there was no obligation on him to do so.[19]
[17] Ibid at [167].
[18] Ibid at [168]-[169].
[19] Ibid at [169].
The Magistrate gave a detailed summary of relevant aspects of the appellant’s evidence, extending over three pages. Despite the matters which were favourable to the appellant, the Magistrate rejected his evidence and gave a number of reasons for doing so. Those matters included:
(1)The objective improbability that the two complainants would, in the absence of collusion, give such similar accounts if they were mistaken as to the nature of the examination being conducted or were lying.[20] I will address separately the appellant’s challenge to the Magistrate’s conclusions concerning the similarity of the accounts.
[20] Ibid at [177]-[178].
(2)The Magistrate found CC to be a convincing witness.[21] He regarded her evidence as being both honest and reliable.[22]
[21] Ibid at [156].
[22] Ibid at [148].
(3)The Magistrate considered that the acknowledgement of the appellant in the recorded interview on 23 May 2010 that he remembered CC undermined his evidence that he had no such recollection. The appellant said in his evidence that in that interview he had confused CC with another patient. This was not a belated claim as it was an agreed fact in the trial that the appellant had informed the police in June 2010 that, contrary to his acknowledgment on 23 May, he had no recollection of CC, and had confused her with another patient. The Magistrate was sceptical about the appellant’s claimed lack of memory and said that upon reading the transcript of the 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 towards him. Accordingly, his claim to the contrary in evidence is significantly undermined by this inconsistency.[23]
[23] Ibid at [174].
(4)The Magistrate regarded CC’s evidence concerning the appellant’s expressions of contrition and remorse as consistent with the conduct one would expect if he had engaged in the conduct attributed to him.[24]
(5)Similarly, the Magistrate regarded the evidence concerning the gift of the Duromine medication as supportive of CC’s account.[25] The appellant critiqued the Magistrate’s reasoning concerning the Duromine and I will return to that later.
(6)The Magistrate accepted CC’s evidence that the appellant had said “I would like to do naughty things to you”. He regarded that expression as being slightly old‑fashioned but in keeping with the studious and conservative presentation of the appellant.[26] He also considered it unlikely that CC would herself use a term like that in everyday language or if fabricating her account.[27] Counsel for the appellant pointed out that the appellant had not been asked whether the expression “naughty things” was one which he would use, but I consider that the Magistrate, sitting as the trier of fact, was entitled to make the observations of the presentation of CC and the appellant and to draw the inferences which he did, in the same way as if he had been sitting as a jury. I agree, however, that by itself this factor does not weigh heavily in the scales against the appellant.
(7)The evidence from both CC and the appellant that he had left the script of medications for CC at the counter for her to collect rather than giving them to her personally was also supportive of CC’s account. The Magistrate said:
Overall I regard the fact that the prescription was left at the front counter as a fact rendering CC’s account more likely, that is, the script was left at the counter because the defendant knew that CC would not wish to have a further consultation with him after what had happened on the previous consultation. It may be expected that in the ordinary course of events a medical practitioner would explain test results such as these during a consultation together with the prescription.[28]
In answer to a leading question in re‑examination, the appellant said that in cases of urgency, he may leave a prescription at reception for a patient to collect, rather than speaking himself to the patient about the medication.[29] He said that this was especially so if the dispensing pharmacist could be expected to provide to the patient any necessary explanation regarding usage of the medication. The implication was that this may have been the reason why, on 22 April 2010, the appellant had left the prescription for CC at the reception desk, rather than it reflecting his appreciation that CC would not wish to see him. The Magistrate described this explanation as “speculation” given that the appellant claimed to have no memory of CC.[30]
The appellant was critical of this characterisation by the Magistrate. I consider that the criticism is unwarranted. It is plain that in context the Magistrate used the word “speculation” in the sense of “surmise” or “reconstruction”.
The Magistrate does not appear however to have attached significant weight to this consideration as he noted that the prosecution had not led evidence from another medical practitioner as to proper practice in this respect.[31]
(8)The Magistrate regarded the appellant’s explanation for his apology to AF at the consultation on 18 July 2010 as being implausible.[32] This was that AF had “looked unhappy”, apparently indicating unease, when he had said that he needed to squeeze her right breast. The appellant said that, sensing her discomfort, he had discontinued the examination and had apologised to AF. The Magistrate was sceptical about this explanation saying:
On this account, there appears to be little that would cause AF to be upset and that any upset on her behalf would be a misunderstanding and over‑reaction on her part. Accordingly it seems there would be little for the defendant to apologise for the following Sunday at the second consultation.[33]
[24] Ibid at [151].
[25] Ibid at [150].
[26] Ibid at [149].
[27] Ibid.
[28] Ibid at [153].
[29] T371.2
[30] Reasons at [153].
[31] Ibid.
[32] Ibid at [164].
[33] Ibid. The Magistrate’s understanding that the appellant had intended to squeeze AF’s breast to check for discharge from the nipple appears not to be correct given the appellant’s evidence at T260 and T263, but nothing turns on that misunderstanding.
Given these matters, it cannot be said that the Magistrate has failed to consider the appellant’s evidence or to give reasons for his rejection of it and his conclusion that it did not give rise to a reasonable doubt. The correctness of several of the reasons given by the Magistrate was criticised by the appellant. I will address those submissions separately.
Similar Fact Evidence
The appellant’s first submission on this topic was that the Magistrate’s failure to identify the particular conduct which constituted the indecent assault in each case undermined his reliance on similar fact evidence in considering Count 2. This was because the necessary comparison for the purpose of identifying similarities and dissimilarities could not, in these circumstances, be carried out.
I reject this submission. For the reasons given earlier, it is apparent that the trial was conducted on the basis that the conduct identified by the Magistrate in the passages I have extracted from paragraphs [3] and [11] of the reasons comprised the conduct constituting the offences.
The appellant also submitted that, when identifying the similarities in the accounts of CC and AF, the Magistrate had included matters which were part and parcel of a legitimate medical examination. Such similarities were to be expected and did not have the significance which the Magistrate attributed to them. Finally, on this topic, the appellant submitted that the Magistrate had failed to have regard to relevant dissimilarities.
The Magistrate identified the following points of similarity:[34]
[34] Ibid at [177].
(1)first, the appellant offered to show each complainant how to conduct a breast examination;
(2)both complainants were requested to raise both their arms;
(3)both were standing;
(4)the appellant commenced an examination and moved his hand around the complainant’s breast or breasts;
(5)the defendant then moved behind each complainant and held both breasts with both hands, moving his hands around;
(6)the appellant pressed his body into the back of each complainant;
(7)the complainants were young full‑figured women;
(8)the appellant complimented both complainants on their breasts;
(9)the appellant was apologetic and remorseful afterwards.
The Magistrate did not overlook that there were aspects that were dissimilar. He referred to the following:[35]
(1)CC’s claim that the appellant reached down towards the top of her pants;
(2)CC’s claim that the appellant kissed her on the neck;
(3)AF’s claim that the appellant rubbed her nipple with his finger;
(4)AF’s claim that she could feel the appellant’s erect penis behind her.
[35] Ibid at [179].
The Magistrate said that he did not regard any of these differences as altering the “striking similarity” between the accounts of CC and AF. On reviewing the matters, I agree with that conclusion. There are striking similarities between the accounts of CC and AF. Each describes the appellant conducting a breast examination while he was standing behind them, holding one breast in each hand and with his body pressed up against theirs. Each describes the appellant fondling their breasts, complimenting them about their breasts, and making statements of an inappropriate kind. Conduct of this kind cannot be regarded as part and parcel of an accepted method of breast examination. The identified dissimilarities do not detract from the conclusion that there were striking similarities in the respective accounts.
It is not necessary to canvas in detail the authorities bearing on the crossadmissibility of evidence. It is sufficient to refer to Phillips v The Queen[36] in which the High Court held:
Reliance was placed on the following statement in Pfennig v The Queen:
"[S]triking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics."
Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O'Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The "admission of similar fact evidence ... is exceptional and requires a strong degree of probative force". It must have "a really material bearing on the issues to be decided". It is only admissible where its probative force "clearly transcends its merely prejudicial effect". "[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind". The criterion of admissibility for similar fact evidence is "the strength of its probative force". It is necessary to find "a sufficient nexus" between the primary evidence on a particular charge and the similar fact evidence. The probative force must be "sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused". Admissible similar fact evidence must have "some specific connection with or relation to the issues for decision in the subject case". As explained in Pfennig v The Queen:
"[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it."[37]
(Citations omitted)
[36] [2006] HCA 4; (2006) 225 CLR 303.
[37] Ibid at [53]-[54]; 320-1.
In my opinion, 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 about what had occurred. The evidence of each complainant was probative of the account of the other, and met the standard for admissibility and use discussed in Phillips.
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.
Hunt J went on to refer to the attempts which Lord Hailsham himself had made in subsequent cases to revise the position he had stated in Kilbourne. A view similar to that of Hunt J was taken in this State in R v Panagiotidis.[42]
[42] (1990) 55 SASR 172 at 179-181.
Accordingly, I reject this submission.
The Appellant’s Memory of CC
In his evidence at trial, the appellant denied any recollection of his consultation with CC on 31 March 2010. As already noted, that evidence was inconsistent with admissions which he had made to the police when interviewed on 23 May 2010. However, it was an agreed fact that, after 23 May 2010, the appellant had telephoned Detective Clarke and had told her that he had confused CC with another patient and, in fact, that he had no recollection of CC. It was also an agreed fact that on 13 June 2010 the appellant had repeated to the police that he was not sure who the patient was who had consulted him on 31 March but that he knew it was not CC. He said he had been mistaken in that respect when speaking to the police on 23 May. The appellant’s evidence at trial was consistent with these two communications with the police.
The Magistrate rejected the appellant’s evidence that he did not recall his consultation with CC. He had the “clear impression” that the appellant’s responses when interviewed indicated that at that time he did recall CC and his consultation with her.
The appellant 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 appellant on this topic. It records only the agreement between the parties that the appellant 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 appellant’s assertions in that respect were true.

Contrary to the appellant’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 appellant’s interview but not the evidence of the two later communications in which the appellant had sought to withdraw his previous admissions is one such indication.
Further, the prosecution had asked some questions indicating a challenge to the appellant’s account in his evidence-in-chief. Those questions, while perhaps not penetrating, were sufficient in my opinion to indicate that the appellant’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 appellant’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.
Like the Magistrate, I consider it to be a matter or some surprise that despite the appellant’s positive assertion that he had confused CC with another patient, he could not name that patient, nor say when in relation to 31 March 2010 he had seen that patient, nor indicate what it was that had given rise to the confusion. That is especially so, given the appellant’s affirmative response to a leading question asked in evidence-in-chief:
Q.You thought it was a particular patient you had in mind but you realised the patient you had in mind was not the patient you saw on 31 March.
A.Correct.
If the appellant had thought that CC was some other particular patient who he had in mind at the time, one would have expected that he would be able to offer some detail about that patient.
In his recorded interview, the appellant said that he recalled CC’s name. He went on to make statements, which may well have been based on his reading of the notes regarding the matters about which she had consulted him on 31 March. However, having outlined the treatment he had put in place, the appellant continued:
… Now I remember her now, because we have difficulty tracking her, because the results of STD came back positive. It is my obligation to do what we call a contact tracing … and also to give antibiotics – I didn’t give her antibiotics in the first place. I offer her antibiotics for her breast, but because she had positive Chlamydia we need to treat her … and we did try to contact her and then I remember because we sent a registered letter to her.
…
QDid she see you at all on the 8^th April?
ANo. So um, No. And in fact, can’t believe it, you know. 31^st March I, made a she a … we rang, managed to track her down and then we asked her to um come in for the er I probably did the way I used my language probably upset her a bit, you know I think that’s probably what happened.
QOkay.
ABecause we did try to contact her about this … STD screening.
QYes.
AAnd then you know, ah, she refusing to come you know. She just ignored the um.
QThe call up.
AThe call and we send a registered letter, she again ignored that and then we managed to ring her and then I probably, I’m not sure what word I used, you know.
QYeah.
ABut that she probably upset, what date. Can I ask you, what date she go to see you, after the 21^st April?
QNo, she, no, no there wasn’t. So, the 21^st April, you spoke to her on the phone?
AYeah, and then I advised ahh the 21^st April.
Later, the appellant gave the following responses:
Q.… Do you, do you actually recall speaking to [CC]? Do you remember that consult?
A.Yes, I can um.
Q.It’s coming back?
A.Yes, it’s coming back now, yeah, she’s because I still remembered, the reason … why I can recall her, because we have problems tracking her. That is the big thing, because, normally patient comes back, you know once we send just a registered letter, but she’s the one that you know … didn’t …
These passages reveal that the appellant acknowledged recalling his consultation with CC and gave an explanation for doing so based on CC’s conduct having been different from others. He also proferred an explanation for CC being upset with him. Those positive responses, together with the appellant’s inability to recall the name of the other patient with whom he said he had confused CC or when he had seen that other patient, do raise a real question about the reliability of the appellant’s claimed inability to recall CC. I also consider that the appellant’s claimed inability to recall CC on 23 May 2010 is implausible when it is remembered that he had spoken to her as recently as 22 April 2010 in a context in which he had then been anxious to make contact with her.
It would have been desirable for the prosecutor to make more express his challenge to the appellant’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 appellant’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 Mrs Shaw QC asked of the appellant in examination-in-chief that she was concerned to have the plaintiff explain (and justify) his changed position.
It needs to be kept in mind that the rule in Browne v Dunn[43] is directed towards achieving procedural fairness. The rule was stated by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation[44] 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.[45]
[43] (1893) 6 R 67.
[44] [1983] 1 NSWLR 1.
[45] Ibid at 16.
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.[46] See also Raben Footwear Pty Ltd v Polygram Records Inc.[47]
[46] JD Heydon, Cross on Evidence (8^th Aus ed, 2010) at [17445].
[47] (1997) 75 FCR 88 at 102.
In the present case, the issues in the trial would have made it apparent that the appellant’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 appellant’s post‑23 May communications to the police. It also explains the evidence‑in‑chief led from the appellant on the topic. It is confirmed by the cross-examination of the appellant set out above, incomplete as it may have been.
That suggests to my mind that the appellant 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.
This ground of appeal fails.
The provision of Duromine
CC’s evidence was that at the end of the consultation on 31 March, the appellant had given her a trial pack of Duromine, saying “Normally they [are] $70 and they’ll help you lose weight”. CC had been prescribed Duromine previously and was familiar with the medication. She said that she was normally prescribed 40 mg tablets but the appellant had given her the 20 mg version. The implication was that the appellant had given CC the Duromine in an attempt to placate her.
The Magistrate considered CC’s evidence on this topic to be “plausible” and “not a detail that CC would be likely to contrive”.[48]
[48] Reasons at [150].
There was no record in the case notes of the provision of the Duromine. The absence of any such record is explicable in the circumstances described by CC. Given that the appellant could not recall the consultation with CC, he could not deny making the gift.
The appellant said that he could not recall whether or not he had Duromine in his consulting room on a regular basis, but said that he did keep samples of drugs. He did say however that he did not prescribe “a lot” of Duromine and that it is usually prescribed for patients with a body mass index of more than 30 who do not lose weight by means of normal lifestyle modification. It is not a medication which is prescribed simply because a patient wishes to have some assistance in losing weight.
It was not suggested that the appellant had checked CC’s body mass index on 31 March or that he had satisfied himself in accordance with usual practice that its provision to CC was appropriate. This was so, even though CC had been prescribed Duromine previously. That indicates that once the Magistrate found as a fact (as he did) that the appellant had given CC some Duromine, an expensive medication, the inference that he may have done so in order to “appease” CC was strong.
On the appeal the appellant drew attention to a number of discrepancies in the evidence concerning the provision of the Duromine. Although CC said that she was usually prescribed 40 mg tablets, it was an agreed fact that Duromine was not manufactured or supplied in that form. Sample packs of 15 mg and 30 mg Duromine have been supplied but these are seven day supplies only. CC said that the trial pack provided to her was for 14 days. CC acknowledged that she told the police on 19 April 2010 that the appellant had said the cost was normally $20, rather than the figure of $70 which she gave in her evidence (T 69).
The appellant criticised the Magistrate for not addressing these and other matters concerning the provision of the Duromine in his reasons. The Magistrate should, it was said, have regarded these matters as undermining CC’s credibility.
I agree that it would have been preferable for the Magistrate to address specifically these particular matters. Unlike some of the other “discrepancies” upon which the appellant relied, these went directly to the reliability of CC’s account of what had occurred in the consultation.
However, on my review of the evidence, they are not matters which can reasonably be understood as undermining the Magistrate’s assessment of CC’s reliability. They are more indicative of lack of attention to detail by CC or some erosion of reliability of memory over the period of about 20 months before she gave evidence. In my opinion, the Magistrate was entitled to conclude that CC was given a pack of Duromine and, given the appellant’s own description of the limited circumstances in which it is usually prescribed, to conclude that on this occasion it was given in an attempt to placate CC.
Inconsistencies between the evidence of CC and AF and other evidence
In support of the submission that the Magistrate erred in acting on CC’s evidence, the appellant drew attention, in considerable detail, to inconsistencies between the evidence of CC and some of the other evidence in the trial. Many of the matters to which the appellant referred are minor, and in my opinion, inconsequential. For example, CC had estimated that her consultation with the appellant had lasted for about 30 minutes, whereas the medical centre’s records indicated its duration at 11 minutes. However, people’s estimates of time, as with their estimates of speed and distance, are often unreliable and CC’s evidence has to be understood in that light. Nothing in the trial turned on the actual length of the consultation. It was what had occurred during the consultation which was important.
Counsel noted that the Magistrate did not refer to an inconsistency between CC’s report to AW of what she had felt by the appellant and her account in evidence of the same topic. AW said that CC had reported to her that she had felt the appellant’s “boner” whereas CC’s evidence was that she had felt the appellant’s belt buckle. I consider that little turns on this discrepancy, or on the fact that the Magistrate did not refer to it. AW may have misunderstood what CC said, or CC may have realised that what she had felt was in truth the belt buckle. If anything, the fact that CC gave evidence of feeling the belt buckle and not a “boner” suggests that she was not setting out to embellish her account to the appellant’s disadvantage.
The Magistrate accepted CC’s evidence that the appellant had not provided or offered any treatment for the sore on her breast, saying that that was in keeping with the notes. However, the case notes for the consultation of 31 March 2010 include “offer ABx”. The appellant explained that “ABx” is an abbreviation for antibiotics. That suggests that the appellant did offer CC some treatment for the folliculitis. To that extent the Magistrate appears to have been mistaken. However, this is a minor matter which cannot reasonably be regarded as a matter of significance, whether in relation to the Magistrate’s process of reasoning, or in relation to his assessment of the evidence of CC or the appellant.
Counsel referred to CC’s evidence that she had not been aware that the urine sample which she had provided on 31 March had revealed chlamydia. This does seem a little surprising but may be explicable by CC’s misunderstanding of the meaning of the word “inconclusive”. She said that she thought it meant “clear”. More fundamentally, however, it is difficult to see how CC’s evidence on this topic could have undermined the reliability of her account of the appellant’s conduct during the earlier consultation.
The police did not record CC mentioning that the appellant had put his left hand on her hip when she reported the incident to them. Counsel submitted that this was an embellishment which undermined CC’s reliability. The Magistrate did not refer to this discrepancy. I agree that it may have been preferable for him to do so but on my review of the whole of the evidence do not regard it as significant. As previously noted, the Magistrate did not regard the touching on the hip as forming part of the indecent assault alleged by CC.
CC had reported to the police that her consultation with the appellant occurred on 8 April 2010. She was mistaken in that regard because she had seen another doctor at the medical centre on that date. I do not regard this discrepancy as significant because of CC’s evidence that she had sought to confirm the date of the consultation with the receptionist at the medical centre before making her report. It seems more probable that the receptionist must have misunderstood CC’s request and given her an incorrect date which CC simply repeated to the police.
CC did not mention in her evidence that she had attended at the consultation on 31 March 2010 with a complaint of tiredness, yet the appellant had recorded her first complaint as being one of lethargy. She had denied that the appellant had offered her antibiotics whereas the medical notes record an offer of such medication for her folliculitis. AW said that CC had been complaining of a sore back at the time of the consultation whereas CC denied making a complaint of that kind. CC said that the appellant had held his ring in his hand when he had spoken of his wife and children but her statement to the police did not include this detail. AW said that CC was still crying when she emerged from the consultation room whereas CC said that she had stopped crying before leaving.
These are but some of the discrepancies or inconsistencies relating to the complaint of CC to which counsel drew attention in support of the appellant’s complaint that the Magistrate should not have found CC to be a “convincing” witness.
Counsel also submitted that the Magistrate had not had sufficient regard to CC’s history which included offences of dishonesty. CC acknowledged in cross‑examination that she had pleaded guilty to receiving social security benefits to which she was not entitled between April 2006 and July 2008, although it seems that no conviction was recorded. The offence resulted from CC’s failure to declare some income. In addition, CC had court appearances as a youth for shoplifting.
The Magistrate did not overlook this history. He referred to it in his summary of CC’s evidence[49] and in his analysis of that evidence:
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.[50]
Thus, the Magistrate did advert expressly to this feature of CC’s history and took it into account in his assessment of her evidence. CC’s offences of dishonesty did not preclude the Magistrate from accepting that CC’s evidence concerning the appellant’s conduct was honest and reliable.
[49] Reasons at [38].
[50] Ibid at [156].
The appellant also raised complaints with respect to the Magistrate’s treatment of the evidence of AF. Some of these related to matters which were inconsequential. For example, AF gave evidence that she had thought that there were no other doctors in the clinic on the occasion of her second consultation with the appellant, whereas it was an agreed fact that there were three doctors working at the time.
In addition to the matters upon which the Magistrate remarked in his reasons, counsel drew attention to the evidence that AF had forgotten that the appellant had given her a referral to the Lyell McEwen Hospital and also that she had attended the medical centre on 13 July when she had seen another doctor for an STD test. That is to say, AF had forgotten that she had attended at the medical centre only two days prior to her consultation with the appellant on 15 July.
Many of the appellant’s submissions complained that the Magistrate had failed to have regard to discrepancies of a similar kind. It is true that the Magistrate did not deal with each of the discrepancies raised by the appellant. However, to an extent this is understandable. It was appropriate for the Magistrate to focus on the matters which went more directly to the prosecution allegations and to those matters which were capable of undermining in a material way his assessment of the credibility and reliability of CC and AF respectively.
Contrary to the assumption which seems to underpin many of the appellant’s submissions, it was not necessary for the Magistrate to remark upon, nor deal with, every minor inconsistency between the evidence of CC and AF and the other evidence in the trial. Some discrimination was necessarily required. The Magistrate had to keep his reasons within reasonable bounds while addressing the principal matters raised by the defence and prosecution. In my opinion, the Magistrate satisfied that obligation.
Read as a whole, 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 matters to which the appellant now points does not, to my mind, indicate a failure by the Magistrate to have proper regard to the evidence.

In my opinion, the detailed critique which counsel made of the evidence of CC and AF, and the identified inconsistencies and discrepancies, does not undermine the Magistrate’s acceptance of their evidence, and his reliance on it to find the charges proved.
Sufficiency of reasons
The notice of appeal contains numerous complaints that the Magistrate “failed to have any or adequate regard” to certain features of the evidence. These are too numerous to address individually. They are so extensive that, if the complaints had substance, they would indicate a gross failure by the Magistrate to discharge his responsibility.
My reading of the trial transcript and of the Magistrate’s reasons indicates to the contrary. They show that the Magistrate gave close attention to the evidence both during the trial and in his reasons. As I have noted previously, it was not practical for the Magistrate to record and address every feature of the evidence to which the appellant drew attention. This is not a case in which the appeal should be allowed on the ground of insufficiency of reasons.
Verdicts not unsafe or unsatisfactory
I have reviewed the entire transcript of evidence and the other materials. In doing so I have kept in mind the “inconsistencies” and “discrepancies” to which the appellant drew attention, including their combined effect. I have also kept in mind the grave consequences for the appellant of a finding of guilt.
In my opinion, despite the matters to which counsel drew attention, there was a sound basis for the Magistrate’s verdicts. They should not be characterised as unsafe or unsatisfactory or unsupported by the evidence.
I agree with the Magistrate’s conclusion that the objective improbability of two complainants, in the absence of collusion, giving such similar accounts if they were mistaken or lying counts heavily against the appellant. The various criticisms which the appellant makes of the evidence of CC and of AF do not undermine the inference arising naturally from that objective improbability. Further, like the Magistrate, I regard the appellant’s explanation for his apology to AF at the consultation on 18 July 2010 as being improbable. The fact that the appellant thought it appropriate to make the apology tells strongly against his evidence and in favour of that of AF.
Conclusion
For these reasons, I dismiss the appeal.