Milky v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0091

SHAFIUL MILKY	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2024
DATE OF JUDGMENT:	17 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 136
JUDGMENT APPEALED FROM:	DPP v Milky [2023] VCC 712 (Judge Hampel)

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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault, sexual assault and compelling sexual touching – Medical practitioner convicted of sexual offending against several patients – Tendency evidence – Tendency notice – Trial judge impermissibly left to jury other misconduct evidence not included in tendency notice in support of tendency reasoning – Failure of prosecution to call witness – Whether the trial judge erred by failing to give a Jones v Dunkel direction with respect to call witnesses – Application for leave to appeal granted – Appeal allowed – New trial ordered.

Evidence Act 2009 ss 97, 101; Jury Directions Act 2015 s 43 discussed.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr S Cash
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Wotton & Kearney
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON ACJ
PRIEST JA
KAYE JA:

Introduction

Throughout February and March 2023, the applicant was tried in the County Court on an indictment containing 15 charges of sexual offending against six adult female complainants: rape[1] (two charges – charges 7 and 8); indecent assault[2] (four charges – charges 1 to 4); sexual assault[3] (eight charges – charges 5 and 6, and 9 to 14); and sexual assault by compelling sexual touching[4] (one charge – charge 15). On 20 March 2023, the jury empanelled to try the applicant found him guilty by unanimous verdict on charges 1 to 6, and 9 to 13; and by majority verdict on charges 7, 8, 14 and 15.[5]
[1]Crimes Act 1958, s 38 (as amended by the Crimes Amendment (Sexual Offences) Act 2016). The maximum penalty is 25 years imprisonment.
[2]Crimes Act 1958, s 39 (as amended by the Crimes Amendment (Rape) Act 2007). The maximum penalty is 10 years imprisonment.
[3]Crimes Act 1958, s 40(1) (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014). The maximum penalty is 10 years imprisonment.
[4]Crimes Act 1958, s 41 (as amended by the Crimes Amendment (Sexual Offences) Act 2016). The maximum penalty is 10 years imprisonment.
[5]Subsequently, on 27 April 2023, the judge sentenced the applicant to a total effective sentence of 14 years and 6 months’ imprisonment, with a non-parole period of 11 years. See DPP v Milky [2023] VCC 712.
By notices filed on 25 May 2023 (subsequently amended), the applicant sought leave to appeal against both his conviction and sentence.
As to conviction, the applicant relied ultimately on two proposed grounds:[6]
[6]The Court gave the applicant leave to add ground 3. Another ground, ground 2 on the original notice, was abandoned prior to the hearing in this Court (in light of the High Court’s judgment in DPP v Roder (2024) 98 ALJR 644).
1 A substantial miscarriage of justice occurred as a result of the trial judge’s directions on tendency evidence and reasoning. In particular, the trial judge erred by:
(a)expanding the prosecution case on tendency;
(b)directing the jury that they could use as tendency evidence uncharged acts which the prosecution had not relied upon for that purpose; and
(c)denying the Applicant procedural fairness.
3 A substantial miscarriage of justice occurred because:
(a)the trial judge refused to direct the jury in accordance with sections 43(1) and (3) of the Jury Directions Act 2015; and
(b)the trial judge gave reasons declining to give the requested directions which were neither adequate nor good.
For the reasons that follow, we consider that the application for leave to appeal against conviction must be granted; the appeal allowed; the convictions set aside; and a new trial ordered. In those circumstances, it is unnecessary to consider the application concerning sentence.

The factual background

So as to understand the issues raised by the application relating to conviction, it is necessary to summarise the applicant’s alleged offending.
In 2012, the applicant commenced work as a general medical practitioner at the Peninsula Medical Clinic in Ocean Grove. He also worked for the National Home Doctor Service. Each charge related to a patient of the clinic or the service. The six complainants — ‘FM’, ‘KBP’, ‘TS’, ‘SH’, ‘DC’ and ‘HH’ — were patients of the clinic or the service.

FM: Charges 1 to 4

FM visited the clinic in 2012 with a sprained ankle. She saw the applicant twice without apparent incident. She alleged that, at a third consultation on 24 September 2012, the applicant touched her breast over her T-shirt (charge 1– indecent assault); and, after asking her to lift her shirt and remove her breast from her bra, squeezed her nipple (charge 2 – indecent assault). FM alleged that the applicant then asked her to lie on the consultation table and pull her jeans and underwear down. She alleged that the applicant then put his hand down her pants on her groin area, ostensibly feeling for her femoral pulse (charge 3 – indecent assault ). Finally, FM alleged that the applicant then touched her exposed breasts with a stethoscope (charge 4 – indecent assault).

KBP: Charges 5 and 6

KBP consulted the applicant at the clinic with a sore back. She alleged that he asked her to lie face down on the examination table and remove her bra. He grabbed the sides of her breasts (charge 5 – sexual assault) and then asked her to sit up. Once she was seated on the edge of the examination table, the applicant is alleged to have grabbed both her breasts and fondled them (charge 6 – sexual assault).

TS: Charge 7 (Majority verdict)

TS’s evidence was that she attended the clinic in February 2017 — the particular date was the source of controversy at the trial[7] — complaining of abdominal pain and thrush-like symptoms. She alleged that the applicant told her that she needed an urgent Pap smear. He escorted her to the examination room at the rear of the premises — where a nurse was present — and asked her to undress and lie on the bed. Under the guise of taking a Pap smear, the applicant inserted his fingers into her vagina (charge 7 – rape), before apparently performing a Pap smear. TS claimed that the nurse who was in the room did not watch the procedure and was otherwise distracted.[8] Notwithstanding what had occurred, TS continued to attend the clinic and consult the applicant in the months that followed.
[7]See [48]–[50] below.
[8]See [51]–[52] below.

SH: Charge 8 (Majority verdict)

SH had consulted the applicant many times for a variety of issues. She made an appointment to have a Pap smear taken on 5 March 2018. On the day of the Pap smear the applicant escorted SH to an examination room at the clinic. Once more, a nurse was present. The applicant inserted a speculum and swab into SH’s vagina and collected a sample. He then removed the speculum and inserted more than one finger into her vagina (charge 8 – rape). HH claimed that, for the duration of the procedure, the nurse who was present had her back turned and was stacking shelves against the wall opposite. She also continued to visit the clinic and consult the applicant in the months that followed.

DC: Charges 9 and 10

DC visited the applicant at the clinic in September 2018 with cold or flu symptoms and sciatic nerve pain. The applicant asked her to sit on the examination table and told her that he wanted to examine her abdomen. He asked her to unbutton her jeans and lower her underwear and palpated her stomach. The applicant then asked DC when she had last had a breast examination. She alleged that after that, under the guise of a legitimate breast examination, the applicant undid her bra and placed his hands on her breasts and rubbed them (charge 9 – sexual assault). He asked her again to lie on the examination table, bent her right leg up, and pressed his body against it, cradling it. DC claimed that the Applicant then massaged her inner thigh and groin (charge 10 – sexual assault).

HH: Charges 11, 12, 13, 14 and 15 (Majority verdicts charges 14 and 15)

HH contacted the National Home Doctor service in February 2018 with cold and flu symptoms, headache and muscle soreness. She alleged that, when the applicant arrived at her home, he touched and rubbed her body, first her breasts over her singlet (charge 11 – sexual assault), and then under her singlet, over her bra (charge 12 – sexual assault). He then touched her breast underneath her bra (charge 13), and tried to kiss her (charge 14 – sexual assault). Finally, the applicant allegedly grabbed her hand and placed it momentarily on his erect penis, before she pulled her hand away (charge 15 – sexual assault). When the applicant left, HH telephoned the ‘000’ emergency services number.

Conviction ground 1: The judge expanded the tendency relied on by prosecution

We consider that the first ground — which in effect contended that a substantial miscarriage of justice occurred because the trial judge directed the jury that they could use as tendency evidence uncharged acts upon which the prosecution had not relied for that purpose — has been made out. The record of the trial demonstrates unequivocally that, in her charge, the judge directed the jury that, for the purposes of tendency reasoning, they could take into account misconduct evidence that had not been relied upon by the prosecution for tendency purposes.
In advance of the trial, the prosecution had filed a ‘tendency’ notice under s 97(1)(a) of the Evidence Act 2008, dated 26 October 2021 (‘the notice’), giving notice that the prosecution ‘intends to adduce evidence which will establish the tendency of the [applicant] to act in a particular way’. That ‘particular way’ was:
(a) During consultations with female patients, to use his position as general practitioner to engage in touching or penetration which was sexual and not warranted by legitimate medical purpose.
(b) To do so in circumstances when there was a substantial risk of detection.
The notice stated the issues to which ‘Tendency Reasoning’ applied were:
4.1 Whether the sexual penetration or touching occurred as alleged; and/or
4.2 Whether the sexual penetrations or touching occurred in the course of procedures carried out in good faith for medical purposes.
Further, the notice stated that ‘the evidence relied on to establish the tendency is set out in Table A’.
In turn, Table A of the notice set out precisely the acts relied upon to prove the alleged tendency. There were 18 of them — the 15 charged acts in the indictment, and three additional uncharged acts alleged by FM and DC.
Each uncharged act particularised in the notice was alleged to have taken place in the consulting room of the clinic. Two uncharged acts were alleged in relation to FM: that the applicant, on 14 September 2012, touched FM’s breast over her shirt, under the pretext of demonstrating how to conduct a breast examination; and, on 19 September 2012, while examining FM’s ankle, the applicant lifted her leg and placed her foot on his crotch. The one uncharged act alleged in relation to DC was that the applicant, on 24 September 2018, under the pretext of treating her for sciatic pain, massaged her neck and shoulder while asking her to place her head against his chest and her hands on his sides, the applicant during this moving her hands onto his hips.
Beyond what was particularised in the notice, the prosecution introduced ‘other misconduct evidence’[9] as context evidence. Hence, evidence was led from four complainants of unprofessional, sexualised conduct towards them, which the prosecution relied upon as ‘providing background and context’ to the charged sexual touching and penetration. That evidence included allegations that the applicant: asked FM questions in relation to conducting breast examinations, and lifted and flicked her underwear during an examination; stood unnecessarily close to KBP and did not offer her the use of a privacy curtain when she undressed; made comments about HH wearing makeup, and rested her arm on his leg while taking her blood pressure; made comments about massage, whether DC had a partner who could assist with massage and commented that the applicant was available to DC for home visits; and massaged DC immediately prior to the offending conduct. None of this context evidence was, however, cross-admissible.
[9]See the definition of ‘other misconduct evidence’ in s 26 of the Jury Directions Act 2015.
Notwithstanding that the uncharged misconduct referred to immediately above formed no part of the notice, and had been specifically relied upon by the prosecution merely as providing background and context, in her charge the judge directed the jury that the evidence of uncharged misconduct could be used as tendency evidence. Those directions were wrong.
So as to appreciate the context in which the impugned directions were given, it is convenient to set out a substantial portion of the judge’s charge. For ease of reference we have numbered the paragraphs, and added emphasis to some passages. The judge said (among other things):[10]
[10]Emphasis added.
[1]Now the next thing I want to talk to you about, members of the jury, is a little different from what I have said before because I have been emphasising to you, the importance of considering each charge separately, by reference to the evidence that relates to it and not substituting the evidence of any one other charge for a charge or any other act of misconduct as relied for any of the charged acts and that remains the case ...
[2]But there is one process of reasoning that the law permits and permits in this case members of the jury, and that is what both prosecution and defence have referred to as tendency evidence, but I am going to call it tendency reasoning, because it is actually about a reasoning process.
[3]It is part of the prosecution case that [the applicant] has demonstrated a tendency to act in a particular way and that the overall evidence, the prosecution argues, demonstrates a tendency to act in a particular way. That is, to use his position as a general practitioner, in consultations with female patients, to engage in touching or penetration which was sexual, not for any medical purpose or in accordance with accepted medical practice, the overall evidence of all complainants.
[4]The prosecution also argues, shows a tendency to act in that way, where there was a substantial risk of detection because for five of the cases, it was in the consultation rooms, for two of those with a chaperone present. In all five cases in the consultation rooms, with at least someone at reception and maybe other people there. And in relation to [HH] in her home, but where her door was open, and there was a car with a driver outside.
[5]The prosecution relies on the combined weight of the evidence of those six complainants as to what [the applicant] did, and so that includes obviously not just the 15 discrete acts that are the subject of the 15 charges, but also the other evidence that you heard of sexual or sexualised behaviour that some or all of the complainants gave evidence of.
[6]So in relation to [FM], behaviour including the placing of her foot on his leg near his groin, the repeated questions about breast examinations, offer to conduct breast examinations, or request to show how she conducted breast examinations, the questions about whether [FM] did breast examinations in the shower, and whether she had her partner conduct the breast examination on her in the shower.
[7]In relation to [KBP], the standing very close. In relation to [SH] the placing of her arm on his leg when testing her blood pressure, speaking to her about no need to wear makeup.
[8]In relation to [DC], the questions about whether she had a partner, whether the suggestion that she just needed a partner at home to massage her and that that would be all right, the offer to do a pap smear whilst touching her breasts, the offer to do home visits, the suggestion of making an appointment for a massage the following day, things such as those.
[9]Again I do not think I have listed all of them, but enough to give a flavour of what the prosecution has described as other misconduct. Also things such as not allowing some of them privacy, so undressing in his presence on the bed, not without the privacy screen around them, or the massaging and placing of hands on the body or pressing the body against the complainant.
[10]Persistent suggestions about doing pap smears, commenting on appearance, and asking questions about whether they had a partner or lived alone, in circumstances where the prosecution says that it was not medically justified.
[11]So far as all of that other misconduct, the conduct not the subject of charges is concerned, it is important to note that there are no charges in respect of that, and the reason that evidence has been led is to contextualise the evidence of each of the complainants as to the nature of the relationship they had with [the applicant], either in the particular consultation, or over the period of the consultations leading up to that one, as well as that one.
[12]Therefore to contextualise the conduct the subject of the charges as well, and so it would be artificial, for example, in relation to [HH’s] charges, if only the conduct that was exactly the subject of the charges was adduced, but not the other conduct that related to the touching of her that occurred in the course of the five discrete acts that had been identified for the charges.
[13]Similarly, in relation to … the evidence in relation [to FM] — the snapping of the underpants at the back, again it would be artificial not to have that in the context of the overall account of what happened in the consultation.
[14]But it is important first of all to understand that with that other misconduct charge, or the allegations of misconduct, that it is there because it is part of the surrounding circumstances and provides the context, but that it is important that you not substitute any of that other conduct for any of the charges.
[15]However, in relation to both the charged acts and that other misconduct, the prosecution argues that you can use any of that evidence that you accept to support a process of reasoning that it does in fact demonstrate that [the applicant] had a tendency to act in that way it argues, namely to use his position as a GP in consultations with female patients to engage in touching or penetration which was sexual and not for a medical purpose or in accordance with accepted medical practice, and that he had a tendency to do that in circumstances where there was a substantial risk of detection.
[16]You can use any evidence of any conduct other than the conduct — any of that conduct, so the other 14 charges, and of any misconduct evidence not the subject of a charge, in order to determine whether you think that does establish that [the applicant] did have one or both of those tendencies, and whether if he did, that that makes it more likely that he committed the particular act charged that you are considering.

So far as the misconduct evidence specifically relied upon by the prosecution as providing background and context is concerned, had the judge confined herself to the directions contained in paragraphs [1], and [6] to [14], it could not have been said that the judge fell into error. Hence, against the background of having in paragraph [1] correctly directed the jury that they could not substitute ‘the evidence of any one other charge for a charge or any other act of misconduct as relied for any of the charged acts’, the judge in paragraphs [6] to [10] adequately outlined the evidence relied upon as background and context. Moreover, the judge properly directed the jury in paragraphs [11], [12] and [14] that the reason that the ‘evidence has been led is to contextualise the evidence of each of the complainants’; and that although the relevant misconduct evidence was ‘there because it is part of the surrounding circumstances and provides the context’, it was ‘important that [the jury] not substitute any of that other conduct for any of the charges’.

But the judge did not stop there. Having introduced the topic of tendency reasoning in paragraphs [2], [3], [4] and [5], the judge directed the jury that they could use ‘both the charged acts and that other misconduct … to support a process of reasoning that it does in fact demonstrate that [the applicant] had a tendency to act in [the] way [the prosecution] argues, namely to use his position as a GP in consultations with female patients to engage in touching or penetration which was sexual and not for a medical purpose or in accordance with accepted medical practice, and that he had a tendency to do that in circumstances where there was a substantial risk of detection’; and could use ‘any misconduct evidence not the subject of a charge, in order to determine whether [they thought] that does establish that [the applicant] did have one or both of those tendencies, and whether if he did, that that makes it more likely that he committed the particular act charged that [they] are considering’.
In giving the directions referred to immediately above, it is clear the judge fell into error. So much was immediately recognised by the applicant’s trial counsel, who took prompt exception, and, at the first practical opportunity, sought a discharge of the jury, submitting that the judge’s error was ‘incurable’.
The judge refused to discharge the jury. In ruling on the application, the judge said that ‘the prosecution was clearly relying on other misconduct apart from those three specific instances that were itemised in the tendency notice’. With respect, that was not the case. The judge also said: ‘If any harm has been caused by reason of the inclusion of the detailing of the other acts of misconduct in giving the tendency direction, it is in my view, a harm that is minor in the overall context of the charged acts and the context evidence and the other misconduct specifically relied upon for tendency’.
Counsel for the respondent in this Court, accepted that, by leaving to the jury for tendency purposes other misconduct evidence that had not been the subject of the notice, the judge fell into error. Picking up what was said by the judge in her ruling, however, the respondent’s counsel submitted that the error was immaterial and incapable of producing a substantial miscarriage of justice, albeit we did not take him to submit that, absent the judge’s error, conviction would have been inevitable.[11]
[11]See Baini v The Queen (2012) 246 CLR 469, 480, [28], 481 [30]–[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
We do not accept that the conceded error was immaterial. In our opinion, the judge’s error occasioned a substantial miscarriage of justice. Although, as we have mentioned, the respondent’s counsel did not submit that conviction was inevitable, we find ourselves unable to conclude that the judge’s error was a minor blemish that did not have the potential to affect the jury’s verdicts.
Tendency evidence owes its admissibility to ss 97 and 101 of the Evidence Act 2008 (‘the Act’). Where evidence is tendered by the prosecution against an accused person for the purpose of proving that that he or she has a particular tendency, the evidence cannot be admitted (s 97(1)), or used (s 101), until two significant hurdles — which do not apply to context evidence — are surmounted.
Hence, whereas tendency evidence in the hands of the prosecution is not admissible unless the court thinks that the evidence will (either by itself or having regard to other evidence adduced or to be adduced by the prosecution) have significant probative value (s 97(1)(b)) which substantially outweighs any prejudicial effect it may have on the accused (s 101(2)), context evidence will — subject to exclusionary rules — be admissible simply if it is relevant; that is, if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (ss 55(1) and 56(1)). To be admissible, context evidence does not have to transcend the threshold hurdles that regulate the reception of tendency evidence. Although it must be relevant, context evidence does not have to possess significant probative value which substantially outweighs any prejudicial effect it may have.
Importantly, the principal distinction between tendency evidence and context evidence is that context evidence is not admitted for the purpose of demonstrating a particular predisposition on the part of the accused person; that is, a tendency to ‘act in a particular way’ or ‘have a particular state of mind’. Context evidence is admitted in the case of alleged sexual offending, not to prove that the accused had any particular propensity or disposition towards the complainant, but to put the particular allegations in the context of the whole of the relationship as described by the complainant.[12]
[12]Qualtieri v The Queen (2006) 171 A Crim R 463, 493 [116] (Howie J) (‘Qualtieri’).
The purpose for which particular evidence is tendered is crucial to a determination of its admissibility and use.[13] For the evidence to be admissible as such, it is not sufficient for the prosecution simply to assert that the evidence falls into the category of context.[14] Rather, there must be a clear articulation of the manner in which asserted context evidence is relevant, so as to demonstrate that it does not involve tendency reasoning (and therefore being subject to the hurdles imposed by ss 97(1)(b) and 101(2) of the Act). As McClellan CJ at CL said in Qualtieri:[15]
To my mind it is essential in any trial where the Crown seeks to tender evidence which may suggest prior illegal acts by the accused, especially where the charges relate to alleged sexual acts, that a number of steps are followed. Although the circumstances of the particular trial may require some modification the relevant steps will generally be —
•     Identification of the evidence which the Crown seeks to tender and the purpose of its tender.
• If the Crown asserts that the evidence is evidence of a tendency on the part of the accused the admissibility of that evidence must be assessed having regard to s 97 and s 101 of the Evidence Act (see R v Fletcher (2005) 156 A Crim R 308). Ireland J also provides an analysis of the relevant provisions of the Evidence Act in R v AH [(1997) 42 NSWLR 702; 98 A Crim R 71] at 709; 78-79.
•     If the evidence is tendered merely to provide context to the charges which have been laid, it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant (see R v ATM [[2000] NSWCCA 475] at [72]). ...
•     If admitted, the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.
[13]The directions that may be sought and given with respect to ‘other misconduct evidence’ are set out in ss 27(2) and (3) of the Jury Directions Act 2015.
[14]See RG v The Queen [2010] NSWCCA 173, [34] (Simpson J).
[15]Qualtieri, 487 [80].
In the present case, as a result of the judge’s error — which, once drawn to her attention, the judge did not consider required correction — the jury was permitted to use a number of items of other misconduct evidence, which the prosecution had introduced merely to provide background and context, in direct proof of the alleged offences (as opposed to their surrounding circumstances). The error in the directions infected the jury’s considerations in two respects. First, it impermissibly added weight to the evidence which the jury was entitled to take into account as tendency evidence. Secondly, and more significantly, it undermined the requirement for the jury to exercise intellectual discipline and precision in its use of the two different categories of evidence, namely, context evidence and tendency evidence. By doing so, the directions had the capacity to invite the jury to engage in impermissible propensity reasoning. The prejudice involved by that process could be substantial particularly in a trial involving multiple complainants. Hence, although the use which the jury may have made of the impugned evidence is to an extent imponderable, we find ourselves unable to conclude that the jury might not have used it as a ‘makeweight’ when considering the otherwise admissible evidence. We cannot conclude that it would not have made any difference to the jury’s verdicts. We are therefore satisfied that there has been a substantial miscarriage of justice.
The first ground must succeed.
Conviction ground 3: Failure to give a direction under s 43 of the Jury Directions Act
Ground 3 is directed to the refusal of the trial judge of the request, by counsel for the applicant, that the jury be given a Jones v Dunkel[16] direction, under s 43(1) of the Jury Directions Act 2015 (‘JDA’) in respect of charge 7 and charge 8.
[16](1959) 101 CLR 298.
Charge 7 on the indictment alleged that the applicant digitally raped TS on 24 October 2017 in the course of a medical examination of her. Charge 8 alleged that the applicant digitally raped SH on 5 March 2018, also in the course of an examination of her. Each complainant, in evidence, stated that a nurse was present at the time of her examination. In the prosecution opening to the case, it was said that that nurse was Ms Bronwyn Vallance, who commenced employment in the practice in March or April 2017. In evidence, TS said that, in fact, the incident, in which she alleged she was raped by the applicant, occurred in the course of an examination of her in February 2017.
After TS and SH had each given evidence, the prosecution called Ms Vallance. In her evidence, Ms Vallance described how, when the applicant conducted Pap smears and similar procedures, it was her duty, as the registered nurse in the practice, to be present and chaperone the performance of the procedure. Ms Vallance gave evidence of her recollection of performing that role on some three or four occasions in the course of her employment with the practice. The prosecution, having been granted leave to cross-examine Ms Vallance under s 38 of the Evidence Act, put a series of questions to her, which were calculated to establish that she may not have been the person who chaperoned the procedures that were performed on TS and SH. At the close of the prosecution case, the prosecutor sought, and was granted, leave to amend charge 7 on the indictment to reflect the evidence given by TS that the incident, in which it was alleged she was digitally raped, took place in February 2017, and not on 24 October 2017. In his final address, the prosecutor submitted to the jury that TS was raped in February 2017, before Ms Vallance commenced employment with the practice. He also submitted that, in the case of SH, it was unclear whether Ms Vallance was the person who chaperoned the procedure in question.
In response, senior counsel for the defence, in his final address, noted that the informant had obtained staff records of the clinic for the period in question, and that the prosecution had not called any of the witnesses whose evidence would have been relevant to the claims, made by each of the two complainants. Counsel also noted that the prosecutor had not offered any explanation for the absence of those witnesses. Accordingly, counsel submitted, it was open to the jury to conclude that those witnesses, who had not been called, would not have advanced the prosecution case in respect of charges 7 and 8.
After final addresses had concluded, and in the course of the charge given by the judge, counsel for the applicant submitted that the judge should give the jury a Jones v Dunkel direction under s 43 of the JDA.
In a short ruling, the judge declined to give such a direction. Her Honour’s reasons in that respect are as follows:
In my view, the basis for a Jones v Dunkel direction under s 43 of the Jury Directions Act has not been established and I do not propose to give any direction in respect of it. I also note that when directions were being discussed, the matter was raised twice on Wednesday and Friday of last week. It was left with the defence before addresses to raise the matter if they wish to pursue the application, it was not raised then. That does not of course preclude the making of an application later but any submission on unfairness based on the fact that Jones v Dunkel submissions were made in final addresses in the expectation of a Jones v Dunkel direction being given are misplaced given what appeared to be the abandonment of any application for such a direction before addresses commenced.

Ground 3: Submissions of the parties

In support of ground 3, counsel for the applicant submitted that the judge erred in failing to give a direction to the jury pursuant to s 43 of the JDA. In particular, counsel submitted that the ruling, given by the judge, contained a number of relevant errors. First, the judge failed to give reasons for her conclusion, that the basis for a Jones v Dunkel direction under s 43 of the Act had not been established. As to that conclusion, the judge failed to address the shift in the prosecution case, and its implications. The judge did not refer to the submissions, made by counsel, and her Honour did not address the facts upon which defence counsel had based his request for such a direction.
Secondly, it was submitted, although counsel argued that the direction was necessary because of the shift in the prosecution case, that fact itself was not the focus of counsel’s submissions. Rather, counsel submitted that, based on the case then being made by the prosecution to the jury, the prosecution had failed to call, without appropriate explanation, potential witnesses whose evidence might have been relevant to the allegations, made by the two complainants, against the applicant.
Thirdly, counsel submitted, at no time did defence counsel in the trial abandon the request for a Jones v Dunkel direction. Rather, counsel had reserved the right to do so after the conclusion of the prosecutor’s address.
In response, counsel for the respondent submitted that it was open to the judge to conclude that a basis for a direction under s 43 of the JDA had not been established.
With respect to charge 8 (in which SH was the complainant), counsel submitted that the evidence was not clear concerning the identity of the other person in the examination room, at the time of the alleged rape of SH. In particular, SH did not identify Ms Vallance as being the person present, and Ms Vallance did not give positive evidence that she was present in that particular examination. It was submitted that, rather than a deliberate shift in the prosecution case, the question, whether Ms Vallance, or someone else, was present during the examination, was a matter for the jury, in view of the manner in which the evidence fell during the running of the trial. In those circumstances, it was submitted, it could not be concluded that the prosecution was reasonably expected to call or question any particular witness on that issue. For those reasons, it was submitted, it was open to the judge not to have been satisfied as to the considerations, set out in s 43(2)(a) and (b) of the JDA, and to decline to give a direction as sought by counsel for the applicant.
In respect of charge 7, counsel noted that, by the time TS came to give evidence at the trial, she had reflected and recalled that the events in question occurred in February 2017, and not, as alleged in the indictment, in October 2017. Accordingly, the prosecution contended that the relevant chaperone, during that examination, could not have been Ms Vallance. Thus, on the prosecution case, there was a ‘lacuna’ in the evidence as to the identity of the chaperone who was present during the procedure, in which TS said that she had been digitally raped. Accordingly, in view of the manner in which the evidence had fallen at the trial, there could not be any reasonable expectation that the prosecution should be required to call, or question, a particular witness in respect of the examination in which it was alleged the offence occurred.

Ground 3: Analysis and conclusion

In order to determine the competing submissions advanced concerning ground 3, it is necessary to examine the evidence, adduced in the trial, that was relevant to the question whether the judge ought to have given to the jury a direction, sought by the defence, in accordance with s 43 of the JDA.
In considering the evidence, four points are particularly salient. First, each of the two complainants, SH and TS, stated in their evidence that a nurse was present throughout the whole of the procedure, in which it was alleged they were each digitally raped by the applicant. Secondly, the presence and conduct of that nurse, who was present during the procedure, was of some significance, particularly to the defence advanced on behalf of the applicant. Thirdly, the description, given by both TS and SH, of the conduct of the nurse during their relevant examinations, was quite inconsistent with the evidence given by Ms Vallance as to how she performed her role as chaperone in respect of the kind of examination that was conducted on each of those complainants. Fourthly, it is apparent, from an examination of the evidence, that the explanation, advanced by the prosecution for that conflict in the evidence, was that it was not Ms Vallance, but some other nurse or member of staff at the practice, who was present during the examinations of each of the two complainants.
In her evidence in chief, TS said that the medical appointment, in which the applicant digitally raped her, was in February 2017, which was some two months after the birth of her second child. TS said that she attended the medical practice in order to undergo a Pap smear because she was suffering abdominal pain. When TS was told that the applicant would undertake the procedure, she expressed some reluctance, but was told by the receptionist that at all times a nurse would be present. Accordingly, TS walked with the pram, which contained her baby, to the consulting room. She said that during the ensuing procedure, the nurse, who was present, did not look up or do anything. When the procedure was completed, the nurse was looking down, and did not look back at her. TS said that the nurse was just looking down at the corner (of the room) and that ‘… she couldn’t have been further away from me in that room if she tried’.
A substantial part of the cross-examination of TS focused on the question of the date on which TS stated that the examination took place. Counsel put to TS that her evidence in that respect was inconsistent with the evidence that she had given at the committal proceeding, and with the records of the practice. The thrust of the cross-examination was designed to challenge TS’s evidence that the examination took place on a date before Ms Vallance had commenced employment with the practice. In the course of that cross-examination, counsel took TS through the clinical notes of the medical practice which related to her. The notes were tendered in evidence (Exhibit D2). They recorded that the first occasion upon which the applicant performed a vaginal swab on TS was on 4 October 2017. The notes also recorded that the doctor who performed the swab on 16 February 2017 was Dr Reem Abdul Fatah, and the notes recorded that the swab was performed as part of a check-up with a question mark alongside the word ‘thrush’. In cross-examination, TS said that she ‘…didn’t even know Dr Reem Abdul [Fatah]’. Counsel also referred TS to the notes which recorded that on 6 March 2018 she again attended Dr Fatah for a ‘cervical screening test’. TS denied that she attended Dr Fatah on that date for that purpose.

As part of the cross-examination of TS, and in the latter stages of it, counsel confirmed that, throughout the examination, a female chaperone was present. TS rejected the proposition that the chaperone assisted the applicant with the procedure, and that the chaperone, at all times, could see her. TS said that, during the procedure, the nurse was in the far right hand corner of the area screened by the curtain, and that, to look at TS, the nurse would have had to lean forward and look around the curtain. Under further questioning, TS said that the nurse ‘just refused to look up at me’, and that TS felt that the nurse was ‘in a very, very uncomfortable position’. TS said that, in that respect, the nurse gave her a ‘side look’ in which the nurse looked ‘uncomfortable’ and ‘devastated’.

In her evidence, SH also said that when she made an appointment to undergo a Pap smear, she was told by the receptionist that a registered nurse would need to be present if a male doctor was conducting the procedure. SH said that on the day in question (5 March 2018), when she entered the room, a lady, who she then found out was the nurse, was present, but that lady did not do anything. SH said that the nurse greeted the applicant, they made some small talk together, and she was stacking the shelves at the time. She said that throughout the procedure, the nurse was stacking the shelves. SH said that at the conclusion of the procedure, the nurse had moved from the right side of her while stacking shelves, and that she was stacking the shelves, standing at the rear of the applicant, but, at all times, her back was towards both the applicant and SH.
In cross-examination, SH confirmed that the nurse was already present in the room when she entered it, and that the nurse was still in the room after she and the applicant had left it. SH also confirmed that the nurse remained in the room throughout the whole procedure. She denied that the nurse handed anything to the doctor. She maintained that, at all times, the nurse was busying herself ‘doing other things’, and that, by doing so, she kept her back to the procedure for the entire time. SH agreed that if the nurse had turned around, she was ‘perfectly placed’ to watch the procedure. She agreed that, during the procedure, the applicant and the nurse made small talk together. At the conclusion of cross-examination, counsel put to SH that the effect of her evidence was that the trained professional nurse, whose job it was to chaperone the procedure, had kept her back to her throughout the whole of the procedure.
It is in that context that the evidence of the nurse, Bronwyn Vallance, was of particular significance in the case. Ms Vallance commenced employment with Peninsula Medical Centre in March or April 2017. In her evidence-in-chief, she said that she undertook the role of chaperone on about four occasions when a male doctor performed either a Pap smear or a vaginal swab. She had a specific recollection of three of those procedures, because of what had occurred during them. On one occasion, which involved a patient who was middle aged, in her 40s, and who had brunette hair, the patient did not want to have a chaperone present. During the procedure, Ms Vallance noted that the applicant appeared to have difficulty extracting the speculum. Ms Vallance said that on another occasion, the patient was quite nervous, and Ms Vallance stood alongside the patient, because the patient wanted her to hold her hand. She said that on that occasion, she stood behind the applicant, who was sitting on a stool. At the conclusion of the procedure, the applicant handed her the swab, which she sent off to pathology. She said that the patient in question was in her early 20s.
It was at that point that the prosecutor sought, and was granted, leave to cross-examine Ms Vallance under s 38(1)(a) of the Evidence Act 2008. In the course of that cross-examination, Ms Vallance said that she commenced work at the end of March or in early April 2017. She agreed that she did not have any recollection of a patient attending to have a Pap smear, and having a baby with her. Clearly, the patient in question, to whom the prosecutor referred, was TS. It will be recalled, TS said that when she attended her examination, she brought her baby with her in a pram.
In further cross-examination by the prosecutor, Ms Vallance said that she did not recall a patient by the name of SH. She agreed that on occasions, the receptionist would fill in the role of the chaperone, if the nurse was not available. She said that, on any occasion on which she performed the role of chaperone, she would not stack shelves, because she would always be watching the procedure. She also said that she did not observe the applicant insert his fingers into the vagina of a patient after he had removed the speculum. Ms Vallance said that if she had seen something like that, she would have said something, because it would have been inappropriate.
At the conclusion of the cross-examination of the witness by the prosecutor, and in the absence of the jury, senior counsel for the applicant foreshadowed that he might subsequently make a submission that a Jones v Dunkel direction should be given to the jury in respect of the evidence by TS, that the incident in question occurred in February 2017.
Counsel for the applicant then proceeded with his cross-examination of Ms Vallance. In the course of it, Ms Vallance agreed with the proposition that her role as a chaperone included assisting the doctor to perform the Pap smear or vaginal swab, and that it also involved giving support to the patient. She agreed that if she chaperoned a procedure, her duty was to watch it. Ms Vallance also stated that she was the only registered nurse employed at the clinic at the time, and, during her working hours, she was the only person in the practice who chaperoned intimate procedures. She said that she remained present throughout the entire such procedure, and, even if she was required to put something away, she would still watch what was going on. Ms Vallance confirmed that she did not, at any time, observe the applicant do anything that was inappropriate, and she did not observe him inserting his fingers into the vagina of a patient after the speculum had been removed. She also agreed that, if she had witnessed anything inappropriate, she would not only have taken it up with the applicant, but she would have reported him.
Ms Vallance, in cross-examination, also said that on the day that she witnessed the swab that involved the relatively young blonde haired woman, the applicant wore gloves, and that he was a little rougher than he should have been. She said that she witnessed the whole of the procedure. She again confirmed that at no time did the applicant insert his fingers into the patient’s vagina.
Ms Vallance also confirmed, in cross-examination, that in March 2018, she was the nurse at the clinic. Counsel referred Ms Vallance to the clinical notes relating to SH, which had been tendered in evidence (Exhibit D1). The notes recorded that on 5 March 2018 the applicant conducted a Pap smear on SH in the presence of ‘RN’ (‘registered nurse’). Ms Vallance confirmed that that reference in the clinical notes to the ‘RN’, was a reference to herself.
Ms Vallance said that in the course of one of the three occasions involving a Pap smear the patient became quite angry, so that Ms Vallance was able to recall it. However, on none of the occasions on which she chaperoned the conduct of a Pap smear did she observe anything improper or untoward.
In re-examination, Ms Vallance agreed that the receptionists at the practice had mentioned to her that sometimes they would perform the role of a chaperone of a procedure. The receptionists did not identify the particular procedure that they had chaperoned. They had just said that sometimes they had performed that role.
At the conclusion of evidence, the prosecutor was granted leave to amend charge 7 on the indictment by deleting the date ‘24 October 2017’ and by substituting ‘in or about February 2017’. The amendment was not opposed by counsel for the applicant. The judge then discussed with counsel the question of directions, which she should give to the jury, which also included the content of a proposed question trail that the judge provided to the jury. Counsel for the applicant did not, at that point, submit that the judge should give to the jury a direction pursuant to s 43 of the JDA.
In final address, the prosecutor made submissions to the jury in respect of each of the charges on the indictment. In respect of charge 7, the prosecutor noted that the nurse chaperone, who attended the procedure involving TS, could not have been Ms Vallance, because Ms Vallance did not commence at the practice until late March or April 2017. The prosecutor also referred to the evidence of Ms Vallance that sometimes, receptionists filled in with chaperone work, and that Ms Vallance said that she had never chaperoned a patient who had brought a baby with her to the examination.
With respect to charge 8, involving the complainant SH, the prosecutor submitted that it was not clear from Ms Vallance’s evidence that she did chaperone the procedure. Counsel noted that SH had said that there was a nurse present, but she did not identify that person as Ms Vallance, and the prosecutor said, ‘… and of course we know Nurse Vallance finished work by five o’clock and we know that the receptionists often filled in for chaperoning duties’.
In response, at an early point in his final address, senior counsel for the applicant submitted that, in the case of both TS and SH, the jury would need to grapple with the fact that Ms Vallance was present in the room at the time of each of the procedures in question, that she watched those procedures, and that she saw nothing untoward occur. He reminded the jury of Ms Vallance’s evidence that, if she had seen anything untoward, she would have intervened and reported the matter. In the course of his address, counsel returned to that point on a number of occasions.
In respect of the procedure performed on SH, counsel again reminded the jury that Ms Vallance had been in the room for the course of the procedure, and that she had watched and participated in it. Counsel noted the evidence of SH that the person who attended as chaperone had her back to the procedure, stacking shelves. He submitted that that evidence was entirely inconsistent with Ms Vallance’s evidence, which he commended to the jury as reliable and credible.
Counsel for the applicant made similar submissions concerning TS. He submitted that the jury should ‘put to rest’ any suggestion that Ms Vallance did not actually chaperone the procedure performed on TS. He reminded the jury that Ms Vallance had said that she had chaperoned a young woman in her 20s, with blonde hair. Counsel reminded the jury of Ms Vallance’s recollection of the procedure. He then took the jury through the clinic’s records concerning the attendances of TS, with a view to demonstrating that 24 October 2017 was the only occasion on which TS attended the clinic with thrush and underwent a procedure performed by the applicant. Counsel noted that according to the clinic’s records, the procedure was performed in the presence of a chaperone, who, counsel contended, was Ms Vallance. Counsel further noted the suggestion, advanced by the prosecutor, that Ms Vallance may not have been present during the two examinations, and that the receptionist may have performed the role of chaperone. In respect of that argument by the prosecution, counsel for the applicant made the following submission to the jury:
You haven’t heard from any receptionist. You haven’t heard from any nurse. You haven’t heard from the phantom nurse that might have been the nurse that chaperoned the procedure in 2017. You haven’t heard from Dr Fatah, who authored the notes for the consultation which [TS] says was the consultation in which she was assaulted [that is the consultation on 6 February 2017].
It was in the context of the foregoing evidence that, in the course of the judge’s charge to the jury, counsel for the applicant addressed the issue of the need for the judge to give the jury a Jones v Dunkel direction.
During a break, which the judge had afforded to the jury, the judge herself raised with counsel the proposed Jones v Dunkel direction, and stated that she thought that, after senior counsel had ‘floated’ the possibility of that direction earlier in the trial, it was not being pursued. Senior counsel for the applicant responded that there was a request that the judge give such a direction. In respect of SH (charge 8), counsel noted that the prosecution had known at all times what the witness would say, namely, that a nurse was present in the course of the examination, but that the prosecution had ‘floated for the first time’, without having opened it, the possibility that the receptionist (and not Ms Vallance) might have sat in on the consultation in question. In respect of TS (charge 7), counsel for the applicant noted that the prosecutor had gone to some length in re-examination to confirm that TS had said that the offence occurred in February 2017. Counsel noted that, in that respect, the evidence of TS had altered. Counsel further noted that on the date on which TS said that she had undergone the particular procedure, it was a female doctor, Dr Fatah, who had been on duty at the practice. Counsel further noted that his solicitor had checked and confirmed that Dr Fatah was working nearby in Ocean Grove (the trial being conducted in Geelong). Counsel also noted the evidence of the informant, that he had obtained a staff catalogue dating back to 2012. Accordingly, counsel submitted, the prosecution had not offered an explanation for the absence of the relevant witnesses, and had not put forward a satisfactory reason why a Jones v Dunkel direction should not be given.
The principle, which is ordinarily referred to as the ‘rule in Jones v Dunkel’, may be stated in short terms. In essence, an unexplained failure by a party to call a witness, or to tender evidence, may, in appropriate circumstances, lead to an inference that the witness, who is not called to give evidence, or the evidence that was not adduced, would not have assisted that party’s case.[17]
[17]Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 320–321 (Windeyer J); O’Donnell v Reichard [1975] VR 916, 929; Brandi v Mingot (1976) 12 ALR 551, 559–60.
In Dyers v The Queen,[18] the High Court (McHugh J dissenting) held that, save as in exceptional circumstances, the principle in Jones v Dunkel does not apply to an accused person, so that, ordinarily, a trial judge should not give such a direction to the jury in a case in which the accused might be expected to give evidence personally or call a particular witness to give evidence in support of the defence.[19]
[18]Dyers v The Queen (2002) 210 CLR 285 (‘Dyers’).
[19]Ibid 291 [6] (Gaudron and Hayne JJ), 305 [52] (Kirby J), 328 [121]–[123] (Callinan J).
Gaudron and Hayne JJ (with whom Kirby J agreed) also considered that, as a general rule, a trial judge should not direct a jury that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. Their Honours stated:
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.[20]
[20]Ibid 291 [6].
Gaudron and Hayne JJ elaborated on that point as follows:
As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.[21]
[21]Ibid 295 [17].
As was thus noted in Dyers, the critical question, in a case in which the prosecution has failed to call a particular person to give evidence, is whether that failure constitutes a breach of the prosecution’s duty to call all material witnesses. It is a fundamental principle of our criminal justice system that the prosecution, in a criminal trial, must act with fairness, with the objective of establishing the whole truth and of ensuring that an accused person is accorded a fair trial.[22] In accordance with that duty, the prosecution is required to call all available witnesses, whether they are favourable to the prosecution case or otherwise, unless there is good reason not to do so.[23]
[22]Whitehorn v The Queen (1983) 152 CLR 657, 663–4 (Deane J).
[23]Ibid 674 (Dawson J); Dyers, 292–3 [11] (Gaudron and Hayne JJ).
Section 43 of the JDA makes provision for a case in which the prosecution, without satisfactory explanation, fails to call or question a particular witness in circumstances in which the judge is satisfied that the prosecution was reasonably expected to call or question that witness. Section 43 provides as follows:
Direction on prosecution not calling or questioning witness
(1)If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—
(a)was reasonably expected to call or question the witness; and
(b)has not satisfactorily explained why it did not call or question the witness.
(3)In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution’s case.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 43(2) qualifies the threshold for giving a requested direction. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
For the purposes of determining the present application, it is not necessary to consider whether s 43 of the JDA qualifies or affects the principles stated by the majority in Dyers. For the reasons that follow, we are persuaded that, applying the test referred to in Dyers, the judge, in the circumstances of the case, was obliged, but failed, to give a direction under s 43 in respect of the failure of the prosecution to call a particular witnesses who were relevant to the determination by the jury of charge 7 and charge 8.

The evidence in the trial made it clear that it was the established procedure of the medical clinic that, in any case in which a male doctor was to perform a Pap smear or swab on a female patient, it was necessary that a female nurse be in attendance as a chaperone of the procedure. Each of the two complainants, TS and SH, stated in their evidence that a female nurse was present throughout the whole of the procedure in which they allege that they were digitally raped by the applicant. As we have noted, it is quite clear from the evidence given by both TS and SH that the conduct of the nurse, who attended their respective examinations, was quite inconsistent with the evidence given by Ms Vallance as to how she undertook her role as a chaperone in respect of such examinations.
In the case of TS, the indictment, and the prosecution written opening, each alleged that the examination, in which she was digitally raped by the applicant, was conducted on 24 October 2017. The clinical notes, that were tendered in evidence, recorded that the consultation on that date was undertaken by the applicant in the presence of ‘RN’ (a registered nurse). At the time, Ms Vallance was employed as the sole registered nurse of the medical clinic.
It appears it was when TS commenced her evidence in chief that she stated, for the first time, that the medical appointment, in which the applicant digitally raped her, was in February 2017. (She had said in her statement to police it occurred on 24 October 2017, and in her evidence at committal had said it was in March 2017.) The clinical records of the medical practice recorded that on 16 February 2017 Dr R Abdul Fatah conducted a vaginal swab on TS, and that the reason for that procedure was ‘check up? Thrush’. The notes further recorded that on 20 February 2017, Dr Fatah again attended TS for a diagnosis of ‘urinary tract infection’. Relevantly the clinical records did not contain any notation of a consultation in which the applicant performed either a Pap smear or a vaginal swab on TS during February (or indeed March) 2017.
The inconsistency, between the evidence given by TS as to the attendance by the applicant on her in February 2017, and the clinical records, was quite patent at least from the time at which TS commenced her evidence in chief. Plainly, it was relevant, and important, that the prosecution in some way account for that inconsistency. In order to do so, it was necessary that the prosecution seek to call Dr Fatah to clarify whether in fact it was she, and not the applicant, who performed the procedure in which TS had alleged that the applicant digitally raped her. It was quite apparent, as noted in the submissions later made by counsel for the applicant, that Dr Fatah was available and she was residing or working in reasonably close proximity to the court.
In those circumstances, Dr Fatah was a relevant and important witness in the trial. Specifically, there was a critical issue, whether the clinical notes of the medical practice accurately recorded that it was Dr Fatah, and not the applicant, who was the doctor who attended TS when she underwent a Pap smear at the clinic in February 2017. The prosecution failed to provide any explanation why it had not sought to have Dr Fatah attend the court and give evidence concerning that issue. It was the duty of the prosecutor, as a minister of justice, to ensure that all relevant and available evidence be adduced in the trial. The offence, that was the subject of charge 7, was a particularly serious criminal offence. In the circumstances, the obligation of the prosecutor to adduce that evidence was incontrovertible. It follows that, in accordance with the principles we have discussed, the judge, having been requested to do so by the applicant, was required, but failed, to direct the jury that it might conclude that if Dr Fatah had been called to give evidence in the trial, she would not have assisted the prosecution’s case against the applicant on charge 7.
In the context of the trial, it would have been a matter of some significance for the jury to be directed that it might conclude that if Dr Fatah had been called to give evidence in the trial, she might not have assisted the prosecution case on two significant issues. The first issue was whether Dr Fatah — and not the applicant — was the doctor who attended TS on the occasion of the appointment in February 2017, in which TS alleged that she was digitally raped by the applicant in the course of that appointment. The second, and related issue, was whether the date on which the applicant performed a Pap smear on TS was 24 October 2017, at a time when Ms Vallance was the registered nurse employed by the medical clinic, and whose role included the chaperoning the performance by any male doctor of such procedures on female patients of the clinic.
As we have noted, the clinical records of the medical practice, in respect of SH, recorded that on 5 March 2018 the applicant performed the Pap smear on SH in the presence of a registered nurse. At the time of that consultation, Ms Vallance was the only registered nurse engaged by the medical practice. The evidence given by SH, as to the conduct of the nurse during that examination, was entirely inconsistent with the evidence given by Ms Vallance as to how she undertook her role as chaperone in respect of procedures such as those involving SH.
It was for that reason that the prosecutor correctly sought, and was granted, leave to cross-examine Ms Vallance pursuant to s 38 of the Evidence Act. Significantly, however, the prosecutor did not challenge, at all, the evidence given by Ms Vallance as to the manner in which she undertook her duties as a chaperone on the occasions on which she was required to attend the examination of a female patient by a male doctor in the clinic. Rather, the prosecutor made a strategic decision to seek to avoid the effect of Ms Vallance’s evidence, by seeking to establish that she might not have been the person who was recorded in the clinic’s notes as attending the consultation as a ‘RN’ (registered nurse).
Importantly, it is clear that the decision of the prosecutor to undertake that course was not one made ‘on the spur of the moment’ or a spontaneous decision resulting from an unexpected development in an evolving and dynamic criminal trial. There was no suggestion that Ms Vallance, in her evidence, departed from a statement she had made to the police, on the basis of which she was called to give evidence in the trial. The prosecutor must have known, from the outset, the nature of the evidence Ms Vallance would give when she was called as a witness in the trial. He must have been well aware that that evidence would be inconsistent with, and contradict, the evidence given by SH, as to the conduct of the applicant in the examination in which SH said that the applicant had digitally raped her.
In those circumstances, in view of the way in which the prosecution sought to avoid the effect of Ms Vallance’s evidence, it was incumbent on the prosecution to seek to identify, and call as a witness, any other female person who was employed by the clinic on the date of the relevant examination, 5 March 2018. In his evidence, the informant confirmed that he had secured the records relating to the persons who had worked in the clinic, both as doctors and as supporting staff, dating back to 2012. It was the responsibility of the prosecutor to seek to ensure that any other female member of staff, who was recorded as being present in the practice on 5 March 2018, and who might have performed the role of chaperone in respect of the procedure that was the subject of charge 8, be available to give evidence in the trial. In terms of s 43 of the JDA, and consistent with the principles in Jones v Dunkel, the prosecution was reasonably required, but failed, to call any such witness, or to concede that there was no other employee of the clinic, than Ms Vallance, who might have attended the consultation of 5 March 2018 in respect of SH.
The prosecutor did not advance any explanation as to why such a person was not called to give evidence. When the applicant’s counsel raised the issue during the judge’s charge, the prosecutor did not suggest that any other such person was not available or could not be located.
The issue, in respect of which the witness might give evidence, was one of particular significance in the determination by the jury of charge 8. If the jury accepted the evidence of Ms Vallance, which was not challenged by the prosecutor, it would necessarily raise a reasonable doubt about the guilt of the applicant on charge 8. The prosecutor, in final address, sought to evade the effect of Ms Vallance’s evidence by suggesting to the jury that some other person, and not Ms Vallance, might have chaperoned the procedure that was the subject of charge 8. That submission by the prosecutor, might well have been a consideration of some significance in the deliberations of the jury in respect of charge 8.
The prosecutor made the submission in circumstances in which the prosecution had not sought to secure the attendance in court, as a witness, any other female employee of the medical practice who might have been able to give evidence as to the identity of the nurse (or other female employee) who attended the consultation on 5 March 2018 in which SH said the applicant had digitally raped her. In those circumstances, it follows that, having been requested to do so, the judge was obliged to give a direction to the jury under s 43 of the JDA that it might conclude that any female employee of the clinic, who was working in the clinic on 5 March 2018, if called to give evidence, would not have assisted the prosecution case on charge 8. The effect of that direction would be that the jury might consider that if the prosecution had called as a witness the female person, who, on 5 March 2018, was engaged at the clinic as a receptionist, that person might not have assisted the prosecution case that it was she, and not Ms Vallance, who was present as chaperone at the appointment at which SH had alleged that she was digitally raped by the applicant. Such a direction might, potentially, have been of particular significance in the context of the prosecution case that the jury should conclude that it was such a receptionist, and not Ms Vallance, who was present as chaperone in the course of that appointment.
It follows from the foregoing that, having been requested to do so, the judge erred in failing to give the jury a direction pursuant to s 43 of the JDA in respect of charge 7 and charge 8. Further, for the foregoing reasons, it must be concluded that the failure of the judge to give the appropriate direction to the jury may well have been a matter of some significance in the jury’s consideration of their verdicts on those charges.
Accordingly, ground 3 of the application for leave to appeal against conviction must succeed.

Conclusion

For the foregoing reasons, the applicant has succeeded on ground 1 and ground 3. It follows that the application for leave to appeal against conviction must be granted, the appeal allowed, the convictions set aside, and a new trial ordered.

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[2024] VSCA 136

17 June 2024