R v Brummitt
[2022] SADC 18
•22 February 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUMMITT
Criminal Trial by Judge Alone
[2022] SADC 18
Reasons for the Verdict of her Honour Judge Fuller
22 February 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Accused charged with maintaining an unlawful sexual relationship - relationship alleged to be doctor-patient relationship - complainant born in 1970 and consulted accused as his general practitioner from 1978 - alleged that accused indecently assaulted complainant on multiple occasions between 1978 - 1982 by inserting his finger into complainant's anus during consultations without prior or subsequent explanation to him or his mother - initial complaint to mother in 2018 - expert evidence led by prosecution regarding appropriateness of rectal examination and existence of anal strictures in children - accused gave evidence asserting complainant presented with complaint consistent with impacted faeces making a rectal examination appropriate, diagnosis of anal stricture and regime of treatment over three weeks of anal dilatation with consent of complainant's guardian, accused called expert evidence that such examination and treatment regime appropriate and called evidence of good character - defence case was that the conduct the subject of the charge was part of appropriate medical diagnosis of and treatment for complainant's presenting complaint - significant forensic disadvantage to accused due to delay, loss of records, death of crucial witnesses and destruction of building from which accused's medical practice operated.
Held: Prosecution has not proved that conduct of accused constituted two or more occasions of indecent assault; positive finding that the accused made a proper and reasonable diagnosis of presenting complaint and conducted appropriate treatment for diagnosed condition with consent of guardian of complainant.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1), 56, 57(2); Juries Act 1927 (SA); Evidence Act 1929 (SA) ss 13(7), 34CB, referred to.
R v Bonora (1994) 35 NSWLR 74; Secretary, Department of Health and Community Services v JWB and SMB ('Marion's case') (1992) 175 CLR 218; R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v T, WA (2014) 118 SASR 382; De Sa v The Queen [2021] SASCFC 22; R v Court [1988] 2 WLR 1071; (1988) 87 Cr App R 144; R v W, PK [2016] SASCFC 5, considered.
R v BRUMMITT
[2022] SADC 18
Robert Brummitt is charged on Information with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert Brummitt between the 31st day of December 1977 and the 31st day of December 1982, at Kensington Park, as an adult maintained an unlawful sexual relationship with [EM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [EM], namely:
(a) inserting a finger into [EM]’s anus on more than one occasion.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Elements of the offence
The elements of an offence under s 50 Criminal Law Consolidation Act 1935 (CLCA) are as follows:
1. The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
2. Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
3. At that time the accused committed the unlawful sexual acts he was an adult.
4. At the time the accused committed the unlawful sexual acts the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period. An unlawful sexual act is any act that constitutes, or would constitute, (if the time and place at which the act took place was sufficiently particularised) a sexual offence.
The prosecution case is that the accused was the complainant’s general practitioner during the period alleged in the Information and therefore was in and maintained a relationship with the complainant. The prosecution case is that the unlawful sexual act particularised in the Information is an indecent assault. Between 31 December 1977 and 10 February 1982, s 56 CLCA was as follows:
56. Any person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence, liable to be imprisoned for any term not exceeding five years, and for any subsequent offence to be imprisoned for any term not exceeding seven years.
From 11 February 1982, s 56 CLCA was as follows:
56. A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency.
At the relevant time, s 57 (2) CLCA provided that a person under the age of seventeen years is deemed incapable of consenting to any indecent assault.
The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. In the circumstances of this case, there is no dispute that there was an application of force, but the central issue is whether that was unlawful.
If the application of force constituting the assault was part of medical treatment or a medical diagnosis, then the application of force will not be unlawful provided there has been consent.[1] In this case, given the age of the complainant at the relevant time, it was within the authority of a parent or guardian of the complainant to provide such consent.[2]
[1] R v Bonora (1994) 35 NSWLR 74 at 75.
[2] Secretary, Department of Health and Community Services v JWB and SMB (‘Marion’s case’) (1992) 175 CLR 218.
Further in the circumstances of this case, the prosecution conceded that if the application of force is not proved to be unlawful because it was part of medical treatment or diagnosis for which there was consent, it will follow that it will not have been proved that the application of force occurred in circumstances of indecency. The prosecution conceded that the alternative offence of assault does not arise on the facts.
A further issue arises as to whether it is possible for an adult to consent to an assault of a child in the course of medical treatment or diagnosis which, of itself, negatives the commission of an offence of indecent assault. In other words, does s 57 (2) permit an adult to consent to the assault such that the offence of indecent assault cannot be established because the question of indecency only arises upon proof of an assault.
As the trier of fact, I am not required to be satisfied of the particulars of the unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of that act.
I cannot return a verdict of guilty unless I am satisfied beyond reasonable doubt that two or more unlawful sexual acts occurred in the context of an ongoing relationship between the accused and the complainant.
The category of relationships falling within s 50 CLCA can never be closed because relationships vary widely, and the very concept evolves over time with societal changes.[3] The wide range of social and interpersonal relationships falling within the term include:
·Familial, legal and de-facto relationships;
·Residential relationships;
·Working relationships;
·Sporting and recreational relationships; and
·Professional relationships.
[3] R v Mann (2020) 135 SASR 457 at [26].
Issues in dispute
There was no dispute that the complainant was a child at the time of the alleged offence and the accused an adult. It was not conceded by the defence that the accused was in a ‘relationship’ with the complainant simply by virtue of his position as the general practitioner to whom the complainant would be taken by his mother for medical treatment or advice.
It was not disputed that the accused had inserted his finger into the anus of the complainant on 3 occasions.
The central issue in dispute was whether the prosecution had proved that the insertion of the accused’s finger into the complainant’s anus on each occasion was unlawful because it was not part of any legitimate and reasonable medical procedure and was done for the purpose of the accused’s sexual gratification.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[4] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[4] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused gave evidence and called an expert witness and character evidence. In doing so, he assumed no onus. His evidence is to be treated in the same way as any other witness in the trial, but I am entitled to take into account the unchallenged evidence of good character in my assessment of the likelihood of him having behaved in the way alleged and in assessing the credibility of his evidence on oath.
Prosecution opening
The complainant, EM, was born on 10 October 1970. The accused was the complainant’s general practitioner and between 1978 and 1982 it is alleged that he digitally penetrated the complainant’s anus on multiple occasions at his surgery. Between the ages of 8 and 12 the complainant was taken by his mother to see the accused at his surgery on Magill Road. When it came time for his appointment, the accused would tell his mother that she need not come into the room and then took the complainant into a room in which there was a Japanese style screen. The accused instructed the complainant to remove all of his clothes and get onto a bed in that room on his hands and knees. The accused would go to a cabinet and obtain rubber gloves, put them on and stand at the base of the bed facing the complainant’s bottom. The complainant then felt something he believed to be a finger inserted into his bottom which hurt and was uncomfortable. The accused moved and wriggled the finger around in different directions for about 10 minutes. Whilst this was occurring, the accused was making ‘pleasure’ type noises. When this finished, the complainant was told to get dressed. The complainant saw the accused 3 or 4 times a year and said that the same thing would happen on every visit. The complainant has no recollection of attending on the accused because of problems with his bottom. On one occasion after visiting the accused, the complainant went home, and some faecal matter escaped from his bottom and soiled the carpet. His mother asked him about it, but he blamed it on the family dog. In 2018, the complainant disclosed the alleged offending to his mother, RLK.
RLK was married to the complainant’s father, FM but commenced a relationship with EM’s stepfather, AK in 1974. FM died on 17 November 1982, and this was the last occasion that RLK said she took EM to see the accused. The first time she took EM to see the accused she did so with AK and on this occasion the two of them were permitted in the consultation room with EM. On every occasion thereafter, RLK said that she would take EM to see the accused but when his name was called, she would walk him towards the room and be greeted by the accused but then told to stay outside while he saw EM alone. On the last occasion she took EM to see the accused, he had a temperature and she kept him home from school. She told the accused that EM’s father had died that day and the accused reached down and looked at EM and then placed his hand gently onto the side of EM’s face, which she thought was strange and she did not take EM to see the accused after this.
In addition to EM and RLK, the prosecution would call another general practitioner working in the practice at the relevant time, the investigating officer and an expert witness, a colorectal surgeon, for the purpose of establishing that anal strictures are unlikely to occur in children and that the insertion of a finger into the anus to treat such a condition was not an appropriate treatment in the 1970’s and 1980’s.
The prosecution case
I turn now to examine the evidence in more detail.
The complainant, EM
EM gave his evidence via closed circuit television, and I closed the court during his evidence. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the EM’s evidence.
EM was born on 10 October 1970 and has two older sisters JM and TM both of whom are 10 and 15 years older than him respectively. In the late 1970’s he lived with his mother RLK and stepfather AK at 14 West Terrace, Kensington Gardens and remained there until 1986 or 1987.[5] He lived there with his mother, stepfather and sister JM. He went to Rose Park Primary School, Burnside Primary School, Norwood Primary School and then Norwood High School. [6]
[5] T 13.
[6] T 14.
He attended the medical surgery of the accused when he was 8 years of age for about four years, from 1978 to 1982. He saw the accused 3 to 4 times a year for the usual things such as ‘broken bones’ ‘bumps and scrapes’ or ‘growing things’.[7] His mother would take him to the surgery, and he could not recall anyone else taking him. He described the standard procedure as being one in which he was called into the doctor’s room and his mother would be told to wait outside. This would happen every time. His mother would not see him until the accused was finished.[8] EM described the surgery as having a waiting room and the doctor’s surgery room. EM drew a plan of the room, P1 and then described what was depicted on it.[9]
[7] T 14.
[8] T 15.
[9] T 15-T 18.
When EM went into the room shown in P1 he ‘was always asked to undress behind the Japanese screen and get up on the bed’.[10] This happened on every visit that he could recall. When he walked into the room, the accused would close the door and lock it with a key. The accused would ask him to go over onto the bed after he was undressed and get on his hands and knees. He would then put on a pair of gloves from the cupboard against the wall. However, there was one occasion where the accused said ‘Look, there’s no gloves. Oh well’.[11] In addition to gloves, the accused would also use lubricant which came from the cupboard in which the gloves were kept. EM’s head was facing the door and his feet facing the window and the accused was facing the bed.[12]
[10] T 18.
[11] T 19, 33-34.
[12] T 20.
Once the accused put the gloves on EM said:
He would then proceed to, I don’t know, how do you want to word it? He’d then proceed to give me a prostate exam so to speak.[13]
[13] T 20, 6-8.
EM said that the accused would insert his middle digit finger up his anus. When asked how he knew which finger it was, he said he was not exactly sure which finger it was. He knew it was a finger because it was not a cold, hard, plastic, metal object but soft, flesh and warm.[14] He said this felt ‘very invasive’. The accused’s finger was inserted into EM’s anus for 5 to 10 minutes and whilst this occurred, he would move it back and forth, in and out and was moaning whilst doing so.[15]
[14] T 20.
[15] T 21.
On the first occasion that the accused inserted his finger into EM’s anus, he said nothing to him before doing so. After inserting his finger into his anus, the accused would tell him to get up and get dressed[16]. EM would then go out into the waiting room and then leave. He said that the accused inserted a finger into his anus every time he saw the accused and that was 3 to 4 times a year. The accused never discussed with EM why he did this to him.[17] I asked EM when, in the course of these attendances, the accused would treat him for the bumps, scrapes or broken bones he described:
[16] T 21.
[17] T 22.
QOkay, well, you’ve given some evidence about, from your recollection, every time you saw Dr Brummitt, he would insert his finger into your anus.
AYes.
QAnd you’ve told us that you would attend Dr Brummitt’s surgery for the usual things like broken bones, bumps and scrapes.
AYes.
QAnd that he would treat you for those things.
AYes, and then while I was there, he’d say – I’m not sure what exactly he’d say, but he’d say ‘While you’re here, let’s check this’ and that’s when he’d do the anal examination as well.
QAnd so my question was, whilst you were in the room on the occasions you went there for a bump or a scrape or a broken bone, when did he treat you for that in relation to what you’ve described as being him inserting his finger into your anus, did that occur before or after?
AAfter. He’d treat the wounds first.[18]
[18] T 23, 1-20.
EM said that he never complained to the accused about any issues with his bottom. He said on one occasion after the accused had inserted his finger into his anus he went home and half an hour later he ‘pooed’ himself in the hallway of his home. The poo went on the floor and his mother told him off, but he blamed the dog.[19]
[19] T 23-T 24.
Four years ago, in 2018, EM told his mother about the allegations, and he then went to the police.[20]
[20] T 24.
In cross-examination, EM said he could remember going to the Adelaide Children’s Hospital a number of times in the 1970’s. He agreed he went there when he fell on his head in 1975 but did not recall being admitted overnight.[21] He did not recall attending the outpatient psychiatry unit at the Adelaide Children’s Hospital 6 times between November 1976 and May 1977 when he was 6 years old and had no recollection of consulting with Mr Snape. He denied having difficulty reading at school at that age and said he had no idea whether his mother was concerned that he had a low IQ.[22]
[21] T 24.
[22] T 24-T 25.
EM recalled having a laceration to his right elbow that was stitched but did not recall going to see the accused for treatment for it. EM did not remember going to the Adelaide Children’s Hospital in 1978 for an infected wound. When it was put to EM that he attended the Adelaide Children’s Hospital in March 1978 with a complaint of abdominal pain, he said that was for his appendix and his mother probably took him.[23] It was put to him that whilst there, he was given a rectal examination and his response was, ‘Really, was I? No, I don’t think I was’.[24] When it was suggested to him that he had at least one rectal examination (if not more) involving the insertion of a finger into his anus in 1978 at the Adelaide Children’s Hospital he said no and that he had no recollection of that. He did not recall being admitted overnight with a complaint of abdominal pain.[25]
[23] T 25.
[24] T 25, 38; T 26, 1-2.
[25] T 26.
EM could not recall re-attending the outpatient facility at the Adelaide Children’s Hospital later in 1978 for psychiatric treatment or seeing Ms Carter, a trainee psychiatrist. He denied being put in a special class when 8 years of age and said he had no recollection of having difficulty reading. He did recall that when he was 8 years of age, he had a tutor outside of school to help him read and he went to the remedial gym at the Adelaide Children’s Hospital. He could not recall attending the outpatient facility at the Adelaide Children’s Hospital in September 1979 and seeing Mrs Jones when he was nearly 9 years of age.[26] He said he had not thought about this until that moment but did remember some reading classes and reading tests at the Adelaide Children’s Hospital but could not recall seeing a psychiatrist and said he did not understand why he, a child of that age, would be seeing a psychiatrist.[27]
[26] T 27.
[27] T 27-T 28.
EM said he recalled being admitted to the Adelaide Children’s Hospital for an operation to remove his appendix but was not sure when that was. He did not recall seeing Mrs Jones at the Adelaide Children’s Hospital in 1981 to discuss psychological matters when he was almost 11 years of age. He did not remember telling her in November 1981 that he was having difficulty living with his mother’s boyfriend, AK, because he was stricter than his mother.[28]
[28] T 28.
EM agreed that he attended the Adelaide Children’s Hospital with a broken arm and said the plaster was removed at the hospital. He then agreed that it could have been a doctor who removed it.[29]
[29] T 29.
It was put to EM that in 1982 he attended a series of weekly sessions at the outpatient’s psychiatry section of the Adelaide Children’s Hospital from 24 September 1982 until 6 December 1982 and he said he did not recall that. He denied having difficulty at school in 1982 or that his mother said she was worried about his social skills.[30]
[30] T 29-T 30.
EM had no recollection of attending the casualty section of the Adelaide Children’s Hospital at 12.15am in April 1983 after he had been vomiting for an hour and a half and complaining of stomach pain and nausea. He did not recall having a rectal examination performed at that time involving a doctor putting a finger into his anus.[31]
[31] T 31.
EM agreed that he has suffered from alcoholism during his adult life but said he was not drinking at the time he gave evidence and had not done so for the last year[32]. When he was drinking, he would consume 10-12 or up to 15 full strength beers a night. He had also been a regular user of cannabis but was no longer a user. He would consume cannabis when he was drinking at night. He did not believe that his drinking had affected his memory but said he has noticed that his memory is not as good as it used to be following brain surgery 10 years ago. EM said he had a stroke, and a massive aneurysm was located on a brain scan.[33] He underwent a coiling procedure and since that his ‘eyesight’s gone and my memory’s gone’.[34]
[32] T 31.
[33] T 32.
[34] T 33.
EM said he had one Aunty he recalled, Aunty Eunice who lived on the other side of town and an Aunty, JB. When his sister TM moved out of home she moved to Modbury, 20 minutes away and he would see her from time to time at the family home and he would quite often go there for weekends.[35]
[35] T 34.
EM said that he recalled distinctly that 1982 was the last year that he saw the accused because that was the year his father died. He could not recall the next doctor he saw after the accused but said the surgery was on Portrush Road. He went there with his mother.[36]
[36] T 37.
EM agreed that his evidence that he saw the accused 3 to 4 times a year between 1978 and 1982 was an estimate and he did not have distinct memories of the occasions he saw the accused. Other than the digital penetration of his anus, he had no specific memory of seeing the accused for treatment of the ailments he described in his evidence as the reasons for his attendance. He agreed that it was the position that he would have seen the accused for those sorts of things because that is what children do but he did not specifically recall it after all the years.[37]
[37] T 38.
EM could not recall going to the accused’s surgery with his stepfather AK or one of his aunts or sister TM. He conceded that it was possible that he went there with his sister or aunt but now does not recall. EM agreed that there was normally a woman sitting behind the reception desk but did not know the nurses who worked at the practice. He agreed that the adult accompanying him would report his attendance and then they would return to the waiting room and sit down.[38] He denied that when the accused came to the door of the waiting room, he and his mother walked to his consultation room. Instead, EM said the accused would say, ‘[EM] you can now come in and [RLK], you can sit there, there is no need for you to come in’.[39] He denied the possibility of him being mistaken about this. He denied that he first went into a different room from the one he drew on P1.[40] When it was suggested to him that the other room had a big desk and the accused would sit at it, he said he could roughly recall that and that it was a different room from the one where the accused put his finger into his anus. He agreed that it was possible that his mother, or the adult with him, would come into the room to talk about why he had come to see the accused. He agreed that on one or two occasions it was possible he went into one room for a consultation and then into a second room where there was a bed.[41]
[38] T 38-T 39.
[39] T 40, 10-12.
[40] T 40.
[41] T 41.
It was put to EM that the bed was in the middle of the room and the screen was in another part of the room and in the place where he had drawn a screen on P1 there was in fact a doorway. EM said that was not correct.[42]
[42] T 42.
EM did not accept as possible the fact that an adult female who was not his mother went into the consultation room on the first occasion that the accused inserted his finger into EM’s anus and denied that any such person told the accused she was concerned about his bowels or that for three weeks he had a lot of runny small poos. EM denied that the accused told him he would need to perform a rectal examination to determine if he had impacted faeces. EM did agree that it was possible that he had seen the accused a number of times for other issues prior to this occasion. He also agreed that it was possible that on this first occasion he went from the consultation room into the examination room, but denied it was possible that the accused told the person accompanying EM she could come into the examination room or wait in the waiting room, and that she said she would wait in the waiting room.[43]
[43] T 43-T 44.
He rejected the suggestion that the female adult accompanying him had given her consent for the accused to perform a rectal examination on EM. EM rejected the suggestion that a female nurse went into the examination room with him and the accused. He said he never met Janet Liddicoat at the accused’s practice but said he would not know the names of any nurses who worked there.[44]
[44] T 45-T 46.
EM rejected the suggestion that the accused told him to take his trousers off and said he was told to ‘get naked’.[45] EM said he did not recall the accused carrying out an examination of his abdomen before the rectal examination by touching and pressing it while he was lying on his back. However, EM said it might have happened. When it was put to him that a nurse was present when that occurred, he said ‘never’.[46]
[45] T 45, 31.
[46] T 46, 12
EM was asked if he recalled the accusing asking him to turn over and lie on his left side and bring his knees up to his chest and he said no but said it was possible this occurred on the first occasion. EM agreed that the accused put gloves on and some lubricant on the glove or fingers of the glove. EM denied that the accused had any difficulty inserting his finger into EM’s anus or that it took him some minutes to be able to do so. EM said he ‘probably’ complained of pain when the accused inserted his finger into his anus on the first occasion[47] but he did not now recall that. EM agreed that, towards the end of the first time that this occurred, the accused moved his finger in his anus to ‘sort of almost stretch it a bit larger’.[48]
[47] T 46.
[48] T 47, 8-9.
It was suggested to EM that after being told to get dressed he did so, and EM agreed. However, EM denied the suggestion that the accused told the person who accompanied him to the surgery that he believed EM had an anal stricture. He said that was not possible. He said he did not recall but that it was possible that the accused told the person accompanying him that he hoped the treatment would help with the symptoms and that EM should come and see him again in a week and then in a further week after that to continue the treatment. EM said he did not recall but that it was possible that the person accompanying him agreed to bring him back for treatment.[49] EM denied that he was only ever asked by the accused to take off the bottom part of his clothing.[50]
[49] T 47.
[50] T 48.
It was put to EM that he was wrong in his evidence that the accused locked the door and he responded, ‘that’s nice’. EM said the lock was a typical lock that would be found on a 1940 house with a big old-style key that was about three inches long and a quarter in diameter with teeth on the very end. EM said he did not see the accused lock the door on every occasion and denied that he was embellishing or imagining this detail.[51]
[51] T 49.
EM was asked to describe the noises the accused made when he had his finger in EM’s anus and EM said ‘pleasurable moans’ but when asked to mimic the sound he said he could, but he did not want to and was not able to describe it in any more detail. EM said they were very soft noises.[52]
[52] T 50.
EM was reminded of his evidence in examination in chief that on the first occasion the accused put his finger in his anus he did not say anything to EM or the person who accompanied him to the surgery about the fact he was going to do that before he did it.[53]
[53] T 50.
EM said he could not remember why he had gone to see the accused on the first occasion of digital penetration but denied that it was because he had experienced three weeks of runny poos. He said it was not possible because he did not remember having problems like that but did recall pooing on the floor once.[54]
[54] T 51.
EM did not recall the accused speaking to the person who took him to the appointment and telling that person what he had done.[55] EM did not discuss with his mother what the accused had done to him despite the fact that he found it unpleasant. When asked why he did not tell his mother he did not want the accused to do that again or that he did not like it, he replied:
Because I was a little kid in a doctor’s surgery and what doctors do I wasn’t 100% sure. I didn’t know whether this was normal practice or not. I didn’t know whether this was normal behaviour if it makes sense.[56]
[55] T 51.
[56] T 52, 10-14.
EM rejected the suggestion that he did not complain about it to his mother because the accused had explained beforehand to him and his mother what he was doing and why and his mother had consented. EM said ‘No, she had not. No’.[57]
[57] T 52, 21.
EM explained that when he pooed on the floor in his home, he had been squatting down on the carpet playing with some toys with his dog when ‘it slipped out so to speak’.[58] He said he had underpants and shorts on. He denied that his poo must have been very runny and when asked if he could explain how it had escaped his underpants, he said he could not.[59]
[58] T 52, 29.
[59] T 53.
EM did not remember seeing the accused on the day his father died.[60]
[60] T 53.
EM was reminded of his evidence in examination in chief that he thought the accused had put his finger in his anus every time he visited him and never discussed with him why he had done this. EM agreed that there may have been discussion which he now could not recall and that the accused only put his finger in EM’s anus on some occasions that he went to see him. He said it was possible that there were many consultations he had with the accused during which the accused did not put his finger in EM’s anus. EM agreed that it was possible that he went back to see the accused a week after the first occasion the accused put a finger in his anus and that his mother or another adult female accompanied him. However, EM rejected the suggestion that the accused spoke to him and the adult who accompanied him in the consultation room before going into another room and discussed with both of them what he was going to do, and the accompanying adult consented to it. He said that was not possible.[61]
[61] T 54.
EM rejected the suggestion that the accused asked him to lie on his left side with his knees to his chest or that he put his finger in EM’s anus for only a minute or two. EM rejected the suggestion that the accused then asked him to get onto his hands and knees before again putting his finger into his anus.[62] When it was put to EM that a nurse was in the room during this examination he said, ‘absolutely not’.[63]
[62] T 55.
[63]T 55,22.
In relation to the third occasion, EM agreed that it was definitely his mother who took him there and said, ‘she was always the person that took me there’.[64] He rejected the suggestion that his mother went into the consultation room with him and that there was a discussion before the examination occurred. EM agreed that after he had removed his clothes in the examination room he had got onto the bed while the accused was in the room and the accused left and when he came back, EM was already on his hands and knees. When it was suggested to him that Nurse Liddicoat came in with the accused and was present during what followed, EM said, ‘absolutely not’.[65]
[64] T 56, 2.
[65] T 56.
EM rejected the suggestion that on this third occasion the accused’s finger was in his anus for a minute or two and said it was 5-10 minutes. EM agreed that it was possible that after the examination, the accused told his mother what he had done but he could not recall the conversation.[66] EM agreed that the three occasions upon which the accused put his finger in EM’s anus were before his father died.[67]
[66] T 58.
[67] T 59.
EM said he did not recall ever having discussions with his mother about the fact that the accused was putting his finger in EM’s anus and said that he had not attended upon the accused on these occasions for this to occur. He said there were other reasons for his attendance and that the accused would check his ‘rear’ at the same time. He could not recall occasions when he went to the accused for the purpose of him putting his finger into his anus.[68]
[68] T 59.
EM initially disagreed that he continued to see the accused as his family doctor up until at least 1985.[69] However he then said it was possible that he continued to see him up until 1985 but said that the accused did not put his finger in EM’s anus after his father died in 1982.[70]
[69] T 59.
[70] T 60.
EM said the accused did not talk softly to him when his finger was in EM’s anus.[71] EM agreed that it was possible that on the occasion when the accused said he had no gloves, he used something different from a glove.[72]
[71] T 60.
[72] T 62.
EM agreed that the first time he told his mother about what the accused had done was in 2018 but he did not go into any specific details with her. He just told her that the accused had sexually assaulted him at the clinic.[73]
[73] T 62-T 63.
EM said that he would only have gone to the Adelaide Children’s Hospital with his mother. EM said he was present when the bill for his appointment was paid at reception. He said there were no nurses at the surgery but agreed that the receptionist might have been a nurse.[74] EM agreed that there was another doctor who consulted at the accused’s surgery and he saw that doctor on one or two occasions in a different room but could not recall his name. The name Paul Temme did not sound familiar to him. EM agreed that he would speak with that other doctor about his presenting problem. EM said he recalled the accused examining him by putting a scope into his ears, using a stethoscope to listen to his chest, using a tongue depressor to look down his throat, taking his temperature with a thermometer and feeling his neck to see if his glands were swollen. He could not recall being prescribed medicine but said the accused may have done so but it did not stick in his memory.[75]
[74] T 65.
[75] T 67.
In re-examination, EM said he did not have a specific recollection of a three-week course of treatment by the accused involving him putting his finger in EM’s anus.[76]
[76] T 68.
The complainant’s mother, RLK.
RLK was married to AK from 1976 until 2017 when he died. She had three children to FM – EM, TM and JM. FM died in 1982. From the time RLK was in a relationship with AK until 1983 they lived at West Terrace, Kensington Gardens. Whilst living there, she would take EM to see the accused. She said that would have been when EM was 6 or 7. The first time she took EM to see the accused she was with AK and they were both there during the consultation. She could not recall EM’s symptoms, but it was nothing serious that required hospitalisation or treatment.[77]
[77] T 71-T 72.
RLK said she took EM to see the accused possibly three times a year for minor ailments - grazed knee, temperature, sore throat or an earache. She said EM was born deaf and had a lot of trouble hearing. She said she never took EM to see the accused in relation to anything to do with his bottom. Other than the first occasion when she and AK took EM to see the accused, she was always the person who took him.[78]
[78] T 73-T 74.
RLK was asked whether there were any occasions when EM was aged between 7 and 13 when she took him to hospital:
Never. He had appendicitis when shall – I can’t remember the exact day, he might have been nine or 10 but I did not see Dr Brummitt on that occasion. I think we went straight to hospital because I could see he was in a lot of pain and that he was bent over but, no, never.[79]
[79] T 74, 36-38; T 75, 1-2.
After EM stopped seeing the accused, he saw a doctor, Dr RJM, on Portrush Road. RLK said she thought this might have been a one-off because after that ‘you could almost say he never had a doctor because he just refused to go’.[80] RLK said he was very hesitant about going to a doctor and would often scream and refuse to go.[81]
[80] T 75, 6-8.
[81] T 75.
When RLK took EM to see the accused, they would go into the surgery, and the receptionist would get out a little card and write on it. She and EM would then wait until the accused would call them in and the second time they went there he said to her, ‘It’s all right I’ll talk to [EM] alone’. She then went and sat in the waiting room.[82] When EM came out the accused had his hand on EM’s shoulder, and she asked him what the matter was, and he replied:
‘He'll be all right. Give him a Disprin. He’ll be all right. If he’s not any better bring him back’ and that was about it and I thought ‘Oh, okay, that was a waste of money’.[83]
[82] T 75.
[83] T 76, 2-5.
RLK said that nothing else was said to her by the accused after a consultation.
The last occasion upon which RLK took EM to see the accused was the day his father died. She had kept EM home from school that day as he had a temperature. He was lying in the sunroom when she told him his father had died and as the afternoon wore on, she was very worried about him, so she took him to see the accused.[84] She gave the following evidence:
I was very worried about him so I took him down to see Brummitt and when I went down there the usual thing happened, I took him into the room and I went with him put him – he got up on the bed and I told him that [FM] had died and with that he stroked [EM’s] face in an upward manner like that (INDICATES) and I thought ‘Oh that’s a bit strange. Why would he touch him like that?’ and here again it was ‘All right, I’ll talk to [EM]. You go out there and just wait’…[85]
[84] T 76-T 77.
[85] T 77, 3-12.
RLK agreed that on this last occasion she went into the accused’s room.
RLK gave evidence about an occasion when EM was about eight years of age and she found poo on the carpet in the hallway. EM told her it was the dog. She thought this occurred just after a visit.[86]
[86] T 78-T 79.
RLK said that about four years ago EM came to her house in his van but did not come inside. After a while she went outside and saw EM slumped over his steering wheel with his head on his hands and he was sobbing. She asked him what the matter was, and he said that he had something to tell her. He then told her that the accused had ‘done things to him’ and she asked him why he had not told her. He replied ‘I thought that’s what doctors did, mum. They hurt you’.[87] She asked him whether the accused exposed himself and EM said no but that he had put his finger in his bottom. She asked him what the accused was doing when that occurred, and EM said he was making weird noises.[88]
[87] T 80, 9-10.
[88] T 80.
In cross-examination, RLK said she was 84 years of age. RLK agreed that she took EM to the Adelaide Children’s Hospital when he was a child. She said he had a coordination problem in his walking years but did not recall him going to the hospital in 1975 when he had fallen over and hit his head or being admitted overnight on 18 August 1975.[89]
[89] T 80-T 81.
RLK agreed that she took EM to see Dr Mary Dix on Greenhill Road Toorak Gardens in August 1975, but she could not remember why. She agreed she took EM to the Adelaide Children’s Hospital in November 1976, but she did not think that was at the psychiatry department and the name Mr Snape did not ring a bell. She said when EM was born there was some talk that he might have Down Syndrome, but it turned out to be a chromosome problem.[90]
[90] T 81.
RLK said EM’s first primary school was Rose Park Primary and he could have been held back a year in primary school because he was a slow developer. She said he probably repeated grade 1. RLK could not recall EM requiring stitches for a cut to his right elbow when he was 7 or 8. She did not remember taking EM to the Adelaide Children’s Hospital after complaining of two weeks of abdominal pain.[91] She said she was never asked for her consent for EM to have a rectal examination at the hospital. She did not accept that he had a rectal examination and said she did not remember that. When it was put to her that he was admitted overnight on that occasion she said ‘no’. RLK said she would have been the only person to take him to hospital.[92]
[91] T 83.
[92] T 83-T 84.
RLK did not recall Dr Ian Drever from Angaston but said that FM’s sister lived in Angaston. She did not see a GP called Dr Drever in March 1978 at Angaston. She suggested that FM’s sister, JB from Truro, may have taken EM there because that is where their farm was. EM would sometimes visit JB. [93]
[93] T 84.
It was put to RLK that she took EM to see Ms Carter, psychologist, at the Adelaide Children’s Hospital on 21 August 1978 and 31 August 1978. She said she could not recall that and blamed ‘the mists of time’.[94] She did not recall taking EM to the Adelaide Children’s Hospital in 1979 to see Mrs Jones who gave EM a reading test. She agreed it was possible that she saw a Mrs Jones to discuss EM’s social skills because he became withdrawn at that age.[95] RLK recalled EM having his appendix removed but she thought that was not at the Adelaide Children’s Hospital but at Hutt Street Private hospital. She said he was 7 or 8 years of age when that occurred and did not think he was as old as 10. RLK did not recall taking EM to the Adelaide Children’s Hospital in 1982 when he fractured his arm, but she remembered something very ‘vaguely’ but could not recall him having plaster on his right arm or taking him to see the accused to have the plaster removed in 1982.[96]
[94] T 85, 30.
[95] T 86.
[96] T 86-T 87.
RLK could not recall taking EM in April 1983 to the Adelaide Children’s Hospital in the early hours of the morning when he had woken up with stomach pain and vomited a number of times. She said no one else would have taken him to hospital. She had no recollection of consenting to EM having a rectal examination on that occasion and said she was sure she would remember something like that. She was asked to assume that EM did go to the Adelaide Children’s Hospital due to abdominal pain and then asked if she would have consented to him having a rectal examination. She gave evidence that she would have said yes.[97]
[97] T 88-T 89.
RLK was reminded of her evidence that she moved into the house at West Terrace, Kensington Gardens in 1976. She agreed that she did not move into that house until she had settled on the purchase of it. It was put to her that the records showed that the transfer of that property to her and AK was on 28 November 1977 and that she did not start living there until shortly after that. She said she must have lived at her previous address until then.[98] When it was put to her that her previous evidence was wrong she said ‘it’s the mists of time, I can’t remember exact dates’.[99]It was then put to her that she was not sure about any of her evidence and she said she could remember exactly what she had told the court about the accused and her going to see him with EM. It was put to her that she could remember what she thought could help her son and she replied:
No, I disagree with you there. I mean me remembering [EM] going to hospital and having all these, surely that will help him but if he went there with stomach troubles, I would say it is because of what Brummitt did to him.[100]
[98] T 90-T 91.
[99] T 91, 8.
[100] T 91, 17-20.
RLK said ‘I hate the man’.[101]
[101] T 91, 33.
RLK was asked if she took EM to the accused on the first occasion for stomach pains and she said ‘I would have remembered stomach pains’[102] because she considered that was something serious. It was then put to her that she would remember if she had gone to Adelaide Children’s Hospital because EM had complained of stomach pains, and she said:
Well, you would think so but you know I mean you are trying to sort of baffle me. I’m telling you the mists of; you remember what I saw at Brummitt’s surgery because it was a little out of the ordinary but going taking a sick child to a hospital -[103]
I wish I could remember more but it’s the mists of time are clouding me. You know I remember what I saw.[104]
[102] T 93, 19.
[103] T 94, 25-29.
[104] T 95, 5-7.
RLK said that the family moved to Tranmere when EM was 13 or 14 ‘because he never saw Brummitt after that day he touched his face – [EM’s] face and I remember it because I think that was the only time I remember getting a script from Brummitt because he got called to Pembroke, his daughter had an aneurysm’.[105] She said that she, AK and EM all stopped seeing the accused at the same time and moved to East Adelaide Health Care where they have been ever since. She was asked if she was quite certain that she last saw the accused on the day that FM died and she replied, ‘when I say I’m 100% sure but I feel fairly confident it wasn’t – I don’t think I took [EM] to see him after that.’[106]
[105] T 95, 12-17.
[106] T 100, 11-13.
RLK was shown D2 and denied that when she saw the accused with EM, they went into the consultation room first. She said the reception desk faced the waiting area and not the window. She said she never saw a nurse and only ever saw a receptionist, the accused and occasionally Dr Temme. She did not know nurse Janet Liddicoat or Chris Steele-Scott. She assumed that the receptionist was not a nurse because she was sitting there when she went in with EM and was there when she came out. RLK accepted that it was possible that there were other people there.[107]
[107] T 100-T 102.
RLK said she never went with EM into a room where the accused was sitting at a desk; they would go into the treatment room. She said she could not remember every individual occasion she went to the accused’s surgery but said she would take EM two to three times a year and the accused always said he would see EM alone. She could not recall the illness or why she took him there. She said she was never there when the accused examined EM. She denied that the accused said she could stay or remain as she liked whilst he examined EM. She said she would never leave him.[108]
[108] T 103-T 104.
RLK said she and EM would go into a room with the accused and she would speak to him about why they were there. EM would usually jump on the bed after the accused said, ‘hop up’. He was always clothed. The accused never told her that he was going to conduct an examination or what he was going to do before she left the room. She said if she had been given the opportunity to remain, she would have stayed there with her child.[109]
[109] T 105-T 106.
RLK was asked about the attendance on the day FM died. She rejected the suggestion that the accused told EM his own father had died when he was three years of age and that he missed him a lot and that the accused was trying to console EM. She rejected the suggestion that the accused tweaked EM’s check by pinching it between forefinger and thumb. RLK said she was aware from their first visit that the accused’s father had died.[110] She knew that FM was at school with the accused and that AK had a connection with the accused’s father because he had taken AK’s tonsils out when he was young and had died five days later from septicaemia.[111]
[110] T 107.
[111] T 108.
RLK denied that there was at least one occasion when she went to visit the accused when she knew he was going to insert a finger into EM’s anus for the purpose of dilatation and she consented to this. She said:
That is a lie. That is an absolute lie. That was never said because he never discussed any treatment whatsoever.[112]
[112] T 109, 13-15.
RLK said she never spoke to EM about what the accused had said or done or the treatment he had recommended. She agreed that she took EM to the accused for a reason and that she would have wanted to know what the diagnosis was and the proposed treatment, but she said it was always the same, ‘He’ll get over it. Give him a Disprin. If he’s not any better bring him back’.[113]
[113] T 110, 7-9.
RLK agreed that D3 was a letter dated 25 August 1981 that the accused provided to her which she provided to the school. RLK was shown D 4, a year 8 letter to parents which had her handwriting on it. She agreed that EM was in year 8 in 1984. She agreed that she had recorded on D4 that the family doctor was the accused. Initially RLK said this letter was not written for high school and that EM would have been in primary school.[114] When reminded that D4 was entitled ‘Year 8 letter to parents’ RLK then said she put the accused on the form as the family doctor because they had to put down a name of a doctor, but EM was not seeing the accused in 1984. It was then suggested to RLK that in 1983, the year after FM died, EM attended the accused’s practice on five occasions. She then said that EM saw the accused until he was 13 years of age. She did not recall EM seeing the accused when he was 14.[115] It was put to her that EM saw the accused at least five times in 1985 and she said no, she would have thought he was 13 when he saw the accused.[116]
[114] T 112.
[115] T 113-T 114.
[116] T 115.
She agreed that she and AK continued to see the accused in 1985. She then gave this evidence:
QWell, you started by saying the last visit was in November 1982.
AI thought it was when [EM] was 13 or 14, I said.
QBut I thought you just ruled out when I put it to you that he was still seeing him at 14.
AWell, I don’t have the records and, I mean, I’m not able to remember. In the mists of time, I didn’t know I was going to be asked this question.[117]
[117] T 116, 28-37.
RLK denied that at some point prior to November 1982 she was aware that EM went to see the accused for a problem relating to his bowels. She again insisted that not once did the accused tell her he was going to examine EM before he did so or that she learnt what he had done afterwards. She denied being told by the accused that EM had an anal stricture and said if he was constipated, she would have given him a Laxette.[118]
[118] T 118.
Dr James Young – retired colorectal surgeon
Dr James Young was called as an expert witness. He is a retired colorectal surgeon. It is evident from his qualifications and experience that he was an expert in the field of colorectal surgery. He gave evidence of what was appropriate practice for a colorectal surgeon between the 1970’s and 1980’s. Before attending court, Dr Young was provided with a summary of the allegations which included the digital penetration of the complainant’s anus occurring between the ages of 8 and 12.[119]
[119] T 123-T 124.
Dr Young explained that the anal canal is surrounded by two muscles, a very strong red muscle called the external sphincter and inside that another muscle under autonomous control called the internal sphincter. In the normal situation the internal sphincter is closed. The external sphincter is a sophisticated muscle sensory system that allows a person to contain flatus if inconvenient and clamp down if there is loose stool, but it is inopportune to go to the toilet. The external sphincter is under voluntary control and the internal sphincter is autonomous. The external sphincter enables a person to be continent at all times unless the muscle is overcome by overwhelming diarrhoea.[120]
[120] T 125-T 126.
Dr Young explained that 70% of diagnostic factors are achieved by taking a good history from the patient. The examination accounts for about 20% and investigations for 10%. In making a diagnosis, significant notice was taken of the patient’s presenting symptoms and the examination was honed, based on the history, and in most cases a clinical diagnosis could be made in the consulting room based on the history and clinical examination.[121] Dr Young explained that the history taking process involves sitting with the patient, making them relaxed and asking them to explain in simple terms what the patient had come to see the doctor about and what was the presenting symptom. The examination is then tailored to ascertaining what the reality is and the pathological diagnosis.[122]
[121] T 126.
[122] T 126-T 127.
Dr Young said he had experience in making a diagnosis of child patients. He said that it is essential to have one of the parents there with a child aged 7 to 12 because it gives the child reassurance and relaxes the child, and the child often looks at the mother or father when talking to the doctor and the history is obtained by a combination of talking to the child in the presence of the parent and on occasion obtaining affirmation from the parent.[123]
[123] T 127.
Dr Young said that the word anal stenosis and anal stricture were interchangeable terms and referred to a pathological narrowing of the anal canal. He said:
…it just does not occur in the paediatric age group unless there is an overwhelming infection or trauma or the after-results of a very rare condition called imperforate anus where the surgery is done as a newborn. An anal stenosis occurs, it used to occur in my practice in the 70’s and 80’s not uncommonly because other surgeons, and sometimes GP surgeons, would do an amputative form of haemorrhoidectomy and that would produce excessive scarring in the adult age group, and indeed today in colorectal practice, the commonest cause of anal stenosis is a badly done haemorrhoidectomy; in children it does not occur unless, as I have said, there has been some obvious pre-existing lesions, such as severe Chrohn’s disease and severe problems following childbirth and an imperforate anus, or a traumatic injury in a car accident.[124]
[124] T 128, 5-20.
Dr Young said that the scarring causes the narrowing of the canal and that ‘you cannot get in with your examining finger because of the scarring and excessive pain when that is attempted’.[125] Haemorrhoidectomy is not a procedure undertaken on children because they do not get haemorrhoids.
[125] T 128, 22-26.
Dr Young said that the symptoms of an anal stricture are severe constipation, rectal bleeding, abuse of laxatives in order to obtain a bowel action, and occasionally spurious diarrhoea from an impacted stool above the stricture. Dr Young said that the information provided to him did not include a history of these sorts of symptoms in the complainant.[126]
[126] T 130.
Spurious diarrhoea occurs in people who have extreme constipation and, in an attempt to relieve it they take an excessive amount of laxatives which produces liquid stool above the constipated stool in the rectum and it leaks around the constipated stool.[127]
[127] T 130.
An anal stricture is extremely painful and a person suffering from a severe stricture will try to have a bowel action and sit and strain causing significant discomfort. It is not quite the same as an anal fissure, which is an ulcer in the anal canal, which Dr Young said was exquisitely painful and difficult to examine due to the pain caused. The ongoing discomfort caused by an anal stricture includes a rumbling pain in the stomach and bloating of the abdominal cavity.[128]
[128] T 130-T 131.
Dr Young said he could not recall a case of an anal stricture in a child in his practice. He said he recently researched the internet with respect to anal stenosis and could not find any mention of paediatric problems in any of the literature he had read. He said it is unheard of in children. Dr Young said he had never seen a congenital stricture in a newborn because a congenital imperforate anus is managed by a paediatric surgeon and is an operation performed on a newborn and the surgeon would normally follow up the patient in the years that followed. Dr Young said, ‘if they needed anything else done it would have been done by a paediatric surgeon not someone like myself whose practice was mainly in adult medicine’.[129]
[129] T 132, 8-10.
Dr Young said that he would make a diagnosis of an anal stricture by listening to the patient and the symptoms described and if the patient had extreme difficulty going to the toilet, constipation with abdominal bloating, rectal bleeding, excessive use of laxatives then that would suggest to him a significant narrowing of the anal canal. He would then put the patient in the left lateral position on an examination bed having explained to the patient that he needed to gently examine the area. He said that a lot could be learnt by just parting the buttocks because if it was an acute problem, it is almost impossible to perform a digital examination. If so, he would stop and then tell the patient that he needed to examine the area under anaesthesia, including a sigmoidoscopy.[130] I then asked him this question:
QIn order to determine that it’s impossible to do a full digital examination, is there any penetration of the anus by the doctor in order to then determine that actually a proper examination can’t be conducted
AI am not an apologist for a rectal examination. It is part of a complete clinical examination, but in saying that, you don’t proceed if there is so much pain or so much narrowing that you can’t easily do it. In the situation I have described, you would say to the patient, as I mentioned just now ‘Look, I can’t adequately examine you now, we’ve got to give you some sedation’ and we would book them onto an operating list for an examination under anaesthesia.[131]
[130] T 132-T 133.
[131] T 133, 16-28.
Dr Young explained that he would try very hard to insert his finger into the anal canal, but he was guided by the fact that if the patient was yelling out or saying ‘stop’ he would not proceed. He said in the vast majority of cases it might be a bit uncomfortable, but 95% of people can tolerate a rectal examination if it is done by a finger with a bit of lubricant. He said it was extremely important to perform a rectal examination in that situation but the way in which he would proceed would be guided to a significant extent by the reaction of the patient. He said in the 1970’s and 1980’s he would go about the examination by lifting the right buttock and gently putting his finger on the anal canal and if there was no complaint, he would gently insert it.[132]
[132] T 134-T 135.
Dr Young said that if, upon attempting an examination, there was a spasm of the sphincter he would not undertake any further penetration because it would suggest to him that there was an acute lesion such as a fissure or fistula in the anal canal. Dr Young explained that a spasm of the sphincter could occur as a result of the patient clenching up due to feeling uncomfortable or distressed without there being a physiological cause.[133] If there was a spasm of the sphincter or extreme resistance, he would ask the patient to return in 3 to 4 weeks’ time and to go on a high fibre diet and possibly a small dose of laxatives.[134]
[133] T 135.
[134] T 136.
Dr Young said that if he did not encounter spasm the digital penetration of the anus would occur for about ten seconds, just enough to make sure there was no impacted stool above the sphincter or any ulcer in the anal canal.[135]
[135] T 136.
Dr Young was asked whether the treatment of an anal fissure in a child would be different from that of an adult and he said no, the treatment was always conservative initially, involving local anaesthetic ointment, stool softeners and bulking agents. The likely outcome of conservative treatment in 60-80% of cases was that the fissure would heal, if it did not then a very simple surgical procedure would cure it.[136] Dr Young agreed that a dilator would be part of an appropriate treatment for an anal fissure but said that since sphincterotomies have such really good long-term results he has used a dilator much less often. If he thought there was a degree of narrowing as well, he would instruct the parent as to how a dilator is used. Dilators come in a range of sizes and if the child tolerates it, it is left in for a couple of minutes on a daily basis and after a week if the symptoms had resolved that would be it. Occasionally it might be necessary to go up to the next size but that would ordinarily be done in consultation quite regularly with the doctor. He would then see the patient within 2 or 3 weeks.[137]
[136] T 137.
[137] T 138-T 139.
Dr Young said that it would never be an appropriate treatment for an anal fissure to internally massage the anal canal. He said it would not be appropriate to treat an anal fissure by examining the anus on a weekly basis. A course of weekly digital penetration of the anus had no role in the management of an anal fissure in the 1970’s to the 1990’s.[138] A digital weekly examination would not give conservative treatment a chance to work because the treatment would not yield a result in such a short period of time.[139]
[138] T 143, 14-19.
[139] T 140.
Dr Young said that if he were to examine a patient and conclude that the rectum was empty that would mean that the patient did not have an anal stricture because a loaded rectum is a sine qua non of a stricture or stenosis.[140]
[140] T 141.
Dr Young said he was familiar with patients who had recurrent anal fissures, usually as a result of inadequate diet or abuse of laxatives. The majority of fissures heal with conservative treatment.[141]
[141] T 142.
Dr Young said that when examining children, he would always have a parent or sister, or brother present and a practice nurse. In a paediatric age group, he would usually have the mother present when taking a history and examining the child. He said that if the child did not want the parent in the room or the parent did not want to be present, the parent would go out in the waiting room, but he would have his practice nurse with him.[142]
[142] T 142.
In cross-examination, Dr Young confirmed that his whole career had been focussed on surgery and it was only when newly graduated that he worked as a locum for a GP for 3 weeks in Crystal Brook. Prior to becoming a fellow in 1966 of the Royal Australasian College of Surgeons he worked with adult patients. When he was a Senior Registrar, he worked with adult patients. Since being in private practice from 1972 and as a consultant for the Royal Adelaide Hospital he saw public and private patients. When working as a consultant his patients were adult patients. In private practice as a colorectal surgeon more surgery was performed by him on adult patients than children; his practice was largely surgery, and he would have referred to him young people in the paediatric age group for surgery for appendicitis, hernias or circumcision. The majority of his work involved seeing a patient to determine if the patient required a surgical procedure.[143]
[143] T 143-T 147.
Dr Young explained that he would make notes of his initial consultation with a patient which detailed the presenting complaint and symptoms as well as notes of the examination and findings. The purpose of the notes was to have a contemporaneous record from which to refresh his memory if he had to consider a particular patient.[144]
[144] T 147-T 148.
Dr Young said that there were degrees of anal stricture and that it was possible to have significant narrowing but not a complete closure of the anal canal. This narrowing is a pathological process and takes weeks or months. Patients are often embarrassed to talk about it and will put up with it until it gets to a point where they are unable to function.[145]
[145] T 148-T 149.
Dr Young said that a report from a patient of thin ribbon like stools would be consistent with a possible anal stricture. If a patient had stool leakage as a presenting symptom, then a rectal examination would be required in order to exclude a faecal impaction or constipation with laxative abuse causing diarrhoea. Dr Young said that an anal dilator is used to dilate the internal sphincter.[146] Spurious diarrhoea can occur where there is an impacted stool in the rectum. Stool impaction in a child requires either a totally inadequate amount of water drunk by a child or, extrapolating from his adult practice as he had never seen this in a child, there would be significant symptoms with bloating and abdominal pain before the diagnosis of faecal impaction would be made.[147]
[146] T 149.
[147] T 150.
Dr Young said that paediatric medicine had been established by the 1970’s. A paediatrician is a physician who looks after children but is not specialised in surgery, hence a paediatrician would refer to a paediatric surgeon.[148]
[148] T 150.
Dr Young had performed rectal examinations on children but not as many as in adults. Where a patient reacts by clenching the muscles during a rectal examination, he is able to determine if that is a voluntary contraction.[149]
[149] T 151.
Dr Young agreed that his opinion that anal strictures were unheard of in children was based upon his own experience and the searches he had undertaken of the literature.[150]
[150] T 151-T 152.
Dr Young explained that the putting of the patient in the left lateral position involves the patient lying on the left side with legs drawn up towards the stomach and underclothes pulled down in order to expose the anus at bench height.[151]
[151] T 152.
Dr Young said that if a patient presented to him with a complaint of runny stools for about three weeks and prior to that everything was normal, but they were unable to stop this, it would be appropriate to conduct a rectal examination to check for impacted faeces. The letters P and R in medical notes means ‘per rectum’ which is an abbreviation for ‘on rectal examination’. Dr Young knew a general surgeon by the name of Sandy Nield who was a general surgeon in practice in Adelaide in the 70’s and 80’s but was now dead.[152]
[152] T 153.
In re-examination, Dr Young said that there was only one type of rectal examination and that was the insertion of the index finger into the anal canal to assess whether there is spasm, narrowing, an ulcer or impacted stools – ‘whatever it is, it’s determined with the examining finger’.[153]
[153] T 153, 31-32.
Dr RJM
Dr RJM is a general practitioner who practises from East Adelaide Health Care at Marden. He commenced working as a GP in 1980 and from 1980 – 1984 he was in practice with Dr Goodhart, Dr Brummitt, Dr Matthews and Dr Temme. There was a practice at 303 Glynburn Road, Kensington Gardens. He was then in practice at 212 Portrush Road at Trinity Gardens from 1984 to 1989 with Drs Brummitt, Matthews and Temme. From 1990-2000 he practised at the Payneham Family Practice and from 2000 he has practised at East Adelaide Health Care.[154]
[154] T 154.
He had no recollection of EM as a patient and was unable to locate any records in relation to a patient of that name.[155]
[155] T 155.
In cross-examination, Dr RJM said in 1977 he worked as an intern at Flinders Medical Centre and stayed there as a resident medical officer (RMO) in early 1978 and then from August 1978 until August 1979 before taking a year off and then returning to Flinders Medical Centre. In 1980 he worked at the Repatriation General Hospital as an RMO until December. He then completed a training program called the Family Medicine Program.[156]
[156] T 155.
When he started working with Drs Goodhart, Matthews, Brummitt and Temme, the practice was conducted at three separate addresses. He predominantly worked at Dr Matthews’ rooms at 303 Glynburn Road up until 1984. If Dr Brummitt or Dr Temme was away, he would fill in and usually do a morning session at 356 Magill Road and then an afternoon session at Glynburn Road. He filled in usually three or four weeks a year.[157] As a result he was quite familiar with the practice run by the accused on Magill Road. Dr RJM identified D5 as a floor plan he drew. He said the room where ‘desk’ was written was the main room he used for consulting. He also used the room immediately above the reception room as an examination (treatment) room for procedures. Dr RJM said there was no desk or chair in the treatment room. When he saw patients, it was his practice to see them in the room with the desk and then go into the treatment room if there was a reason to do so. He could recall a screen in the room with the desk but was not certain if there was one in the treatment room.[158]
[157] T 156.
[158] T 160-T 161.
Dr RJM was shown D2 and identified the two rooms above the room with the desk as being Dr Temme’s waiting room and consulting room. Dr Temme had a separate entrance to the building. Dr RJM said D2 was very similar to D5 and was roughly accurate with respect to how the rooms were set out. He could not recall a third door in the treatment room as drawn on D2.[159]
[159] T 162-T 163.
When Dr RJM filled in for Dr Brummitt he would not lock the door after entering the consultation room with patients. He could not recall ever being given a key to lock it or whether there was a keyhole with a lock. He gave the same answer with respect to the treatment room. He had no recollection of a long old-fashioned key being left in the lock of the door of the treatment room at all times.[160]
[160] T 163.
Dr RJM said that between 1980 and 1990 the main person who worked for the accused was Janet Liddicoat. He said she did everything, mainly reception duties but she also did ‘nursing type’ duties. She would take patients into the treatment room and would help set up things like ECGs and she would clear up after he had used the treatment room. She knew everyone in the practice and knew the patients better than he did. He also recalled Chris Steele-Scott working there when Janet Liddicoat was unable to work.[161]
[161] T 164.
Dr RJM said he could not recall ever using a chaperone and said he would not see a child without the parent being present. He said he would not have examined a child without an adult being present. If he needed a chaperone, he would have asked one of the staff members. Jill Von Einem was a typist who worked for the practice.[162]
[162] T 164-T 165.
Before Dr RJM left the practice, he bought the building on Magill Road with Dr Temme with plans to renovate it. They had plans drawn up but no longer had those floor plans or records. When he moved to Payneham Family Practice in 1990, he sold his interest in the building to Dr Temme who died a few years later.[163]
[163] T 166.
Dr RJM could not recall EM but did remember RLK. She may have consulted with him once or twice. He knew FM because he used to work with his father setting up Head of the River, amongst other things. FM and his father also went fishing together.[164]
[164] T 166-T 167.
Dr RJM said that the accused was highly regarded amongst the group of people whom he knew who knew the accused. He gave this evidence of his good character:
He is what I guess people would call old fashioned GP, he was very thorough with his patients, he knew them very well, and I am basing this on recollection of notes that I would’ve read of his which were legible – not always, but mostly. He would take a reasonable history, he would examine patients properly and he would refer appropriately if necessary.[165]
He would have been regarded as a very ethical practitioner.[166]
[165] T 168, 26-32.
[166] T 170, 6-7.
Dr RJM said that the accused’s reputation did not change during the course of his practice.[167]
[167] T 168.
Dr RJM described the patient cards kept by the accused as 8 x 5 cards in reverse chronological order with notes on the front and back. There was also a health summary on the front page of the patient notes which listed medications, significant past history events and ongoing medical issues and immunisations.[168]
[168] T 169.
Dr RJM said he would see child patients, and in the early days of his practice with the accused and Drs Goodhart, Temme and Matthews it was predominantly younger people. He was then asked to consider the position in 1980 and assume a child presented with an adult at his practice with a history of having had a lot of small runny poos over the last three weeks which was persisting.[169] He was then asked if he might have considered a rectal examination if that was the only history he had. He gave this evidence:
[169] T 170.
AProbably. It would depend a bit on whether the child had pain as well. If they just had runny poo, possibly not, but if they had any pain then I certainly would have.
QWould you have conducted an abdominal examination first.
ACertainly.
QAnd if that was normal, there was no complaint of pain, might that make it more likely you would then have a rectal examination, because that examination hadn’t revealed anything particularly.
ANot necessarily. The other thing I should add is that I would also check vital signs before I did the abdominal examination, so I check pulse and temperature in a child. If all those findings were normal and the abdomen was completely normal, and I also listened to their stomachs, so I listen for bowel sounds, and if all those things were normal, I would be less likely to do any further examination at that stage. But at the initial consultation I may well implement some treatment and then review the patient.
QIf the complaint was of small runny poos for three weeks, is one possibility that you might consider as a GP, that the child could have gastroenteritis.
ACertainly.
QIs another possibility you might consider, that the child might have impacted faeces.
AThat’s a possibility.
QAnd if you, based on what you were told, suspected as the GP that it might be impacted faeces, would it be appropriate to carry out a rectal examination.
AIf that were the thought, that would be a very appropriate examination.
QAnd before you did that, you would obtain the consent of the adult who is with them.
ACertainly.
QAnd you would have offered the adult the opportunity to remain during the examination.
AI would normally encourage that.[170]
[170] T 171, 2-38; T 172, 1-2.
Dr RJM said that if the accompanying adult did not want to be present it would have been very appropriate to have someone else present. If he performed a rectal examination, he would have written ‘PR’ and noted whatever he found.[171]
[171] T 173.
Dr RJM was then asked his opinion based on a series of assumed facts:
QI ask you to assume that Dr Brummitt did carry out a rectal examination having had the history which I mentioned to you before and when he did so he found that the child’s rectum was empty but he diagnosed the existence of an anal stricture, that is, the anus was very tight and there was a narrowing of the anal canal. Firstly, is that a finding you’ve made, or you’ve ever had when you’ve done a rectal examination.
AI have noted anal stricture on examination.
QAnd if you noted that might it be reasonable to carry out dilation of the anus to try to widen it, that is, remove the stricture with the finger that you were then using to examine the child.
AWell, the act of examination, if there is a tightening of the anus would actually tend to open it up. You can get physical strictures which would probably make it difficult to actually finish the examination because it may not allow the finger to be admitted, and you can get, I guess physiological stricture where the anus muscle might go into spasm and that gives, perhaps, the appearance, or feel of a stricture, but that would tend to then relax the muscle.
QThat is the finger having gone in.
AYes.
QIf I ask you to assume that Dr Brummitt believed that this patient had an anal stricture, that is, a pathological one not a physiological one, would it have been reasonable for him to have decided to have two weeks of dilation, that is, for the patient to come back to him one week later, and a week later, simply to put his finger in the anus again to dilate the anus slightly to see if it had improved and then no further treatment was required.
AThat would be a reasonable thing to have done.
QWould it be fair to say that if the stricture persisted, that is, it didn’t improve, you should refer the patient to some specialist.
AThat would be my normal practice, certainly.
QWho would be the most appropriate specialist, in your view, for this sort of stricture problem in a child.
AEither a paediatric gastroenterologist or a paediatric surgeon.[172] [Emphasis added]
[172] T 173-174.
Dr RJM said he was familiar with the term ‘spurious diarrhoea’ and said it describes the situation where a patient is constipated and there are hard faeces in the lower bowel and then there are runny faeces which run around that and come out as diarrhoea. If he suspected this condition, he said ‘it would be very appropriate’ to conduct a rectal examination ‘because you would be able to determine the hard faeces in the rectum’.[173]
[173] T 175, 1-9.
In re-examination, Dr RJM said in the five years from 1980 he had made a diagnosis of anal fissures once a year, usually in adults. He said he saw it more commonly in adults than children. He said in his forty years of practice he may well have diagnosed an anal fissure in a child. If he found an anal fissure in a child and did a rectal examination, he would initiate treatment but if it was unsuccessful and the symptoms persisted, he would refer to a specialist. The treatment may involve local antibiotic or antiseptic cream around the anus and dietary change and if painful, the use of an ointment that relaxed the muscle.[174]
[174] T 175-T 176.
Senior Constable Michelel Kate Paxton
It became obvious during the course of cross-examination that there were a number of matters in respect of which EM’s recollection varied during the course of his evidence. For example, he initially asserted that the accused would insert his finger into his anus on every occasion he attended upon the accused at his surgery, which he estimated to be 3 to 4 times a year. He made no mention of anything else occurring during the course of the consultations with the accused. When asked whether the complaint or condition for which he presented was treated by the accused and if so when, he said that the digital penetration occurred after the treatment for or examination of the presenting complaint. EM conceded in cross-examination that his evidence that the digital penetration occurred on every occasion was not accurate and there were occasions when he saw the accused when it did not happen.
EM’s recollection was demonstrably poor in relation to relevant events occurring at a proximate time. EM said that he never complained to the accused about any issues to do with his bottom and denied having rectal examinations at the Adelaide Children’s Hospital, asserting that he had no recollection of that, or of being admitted overnight with a complaint of abdominal pain in 1978 or 1983. I found it difficult to reconcile EM’s ability to recall the accused inserting his finger into his anus with his stated inability to recall that occurring on three occasions at the Adelaide Children’s Hospital before and after the alleged offending. I am not prepared to make a finding that this lack of recollection was not an honest one, but I am troubled by EM’s inability to remember what he had described, in the context of the accused, as being a ‘very invasive’ procedure.
EM initially said that the last time he saw the accused was in 1982 but this was contradicted by the body of evidence that clearly established that he continued to see the accused up until and including 1985. EM initially asserted that the accused would tell his mother that she could sit in the waiting room and that she would not come into the room with him and the accused, but later said it was possible that his mother or the adult accompanying him would come into the room to discuss why he was there.
Given his age at the relevant time, I reject as implausible EM’s account that his mother or accompanying adult did not come into the room and discuss his presenting complaint with the accused.
EM was adamant that the accused did not discuss with him and his mother or accompanying adult that he needed to perform a digital rectal examination and said it was not possible that the accompanying adult consented to it. I note the internal inconsistencies in EM’s evidence on the topic of whether anything was said to him before the accused inserted a finger into his anus.[285] I reject as implausible and inherently unlikely the evidence that the accused inserted his finger into EM’s anus without any warning or explanation as to why he was going to do so. EM denied that the accused had any difficulty inserting his finger into his anus or that it took him some minutes to be able to do so. He could not recall complaining of pain. I consider it highly unlikely that a child upon whom a digital rectal examination was being performed without notice or warning would not react in some way to such an unexpected, unpleasant and uncomfortable event or not ask the accused what he was doing if no explanation had been given.
[285] In answer to questions from me, EM said that after being treated for his presenting complaint the accused would say ‘while you’re here, let’s check this’: T 23.
I note that EM later conceded that there may have been discussion which he now could not recall about why the accused had put his finger in his anus.
EM’s concession that it was possible that the accused told his mother or the adult accompanying him that he hoped the treatment would help with the symptoms and that he should come and see him again in a week and in a further week after that to continue treatment in my view did not sit comfortably with EM’s denial that the accused told the accompanying adult that he believed EM had an anal stricture. EM’s evidence, however, left open the possibility that, following the first occasion of digital rectal penetration, it occurred again on two subsequent occasions, each a week apart.
EM said that he did not tell his mother what the accused had done to him or that he did not want it to happen again because he did not know whether it was normal practice or not. I consider it inherently unlikely for there to have been no discussion between him and his mother if his mother had not been in the room during the examination (or at the surgery), particularly if EM was not certain about why the procedure being performed upon him. I consider the more likely explanation for the lack of complaint to be that he and his mother or accompanying adult had been told about the examination that was going to be performed upon him and he understood that his mother had agreed or consented to it, but he cannot now recall this.
I have doubts about the reliability of EM’s evidence that the accused made soft pleasurable moaning sounds whilst his finger was in EM’s anus. Although no evidence was led from the complainant regarding the reason he determined to make a complaint to his mother in 2018 (and he was not cross-examined on this topic), it is clear that his initial uncertainty regarding whether the accused’s conduct was normal practice must have changed at some point into a belief that he had been sexually assaulted. I consider it reasonably possible that EM has subconsciously placed this complexion on his recollection of the noises he heard because he has subsequently formed the belief that what occurred was a form of sexual assault. In other words, his belief that he was sexually assaulted has led him to conclude that what he could hear must have been pleasurable moans.
The initial complaint by EM to RLK occurred in 2018. EM said he simply told his mother that he had been sexually assaulted at the clinic. I prefer EM’s evidence regarding the content of that complaint to the evidence of RLK. I consider it likely that RLK has embellished her account of the content of the complaint having subsequently learnt more about the nature of the allegations and given her propensity to give evidence she believed would assist the prosecution case. As mentioned, no evidence was led regarding the reason for the timing of the complaint. The complaint itself is devoid of any detail and does not demonstrate to any meaningful degree, consistency of account or conduct. The complaint is consistent with EM concluding after many years that the conduct of the accused in inserting a finger into his anus during consultations was sexually motivated.
I accept EM’s evidence of the occasion upon which he defecated on the floor at his home, supported as it was by RLK. However, there is no evidence whatsoever upon which I could conclude that this occurred as a result of digital penetration of his anus by the accused. In my view, the evidence of EM as to the circumstances in which he defecated on the floor are consistent with him having some form of problem with his bowels, but I am unable to make any firm finding as to whether this was consistent with spurious diarrhoea or gastroenteritis or any other bowel condition. What it does illustrate is that at a time proximate to the rectal examination(s) being performed by the accused EM had symptoms consistent with the history the accused said he was given prior to the first rectal examination.
RLK was an extremely voluble witness who often volunteered information in a non-responsive manner in cross-examination. I formed the distinct impression that she genuinely believed that the accused had sexually assaulted her son, as a result of which she made no effort to hide her hatred for the accused. I consider that her evidence demonstrated a subconscious bias against the accused and that she had reconstructed her recollection of events to paint the accused in an unfavourable light and to support her son in the allegations he was making. A good example of that was her assertion that if EM went to hospital with stomach troubles that was the result of what the accused had done to him.
Her recollection of events and circumstances surrounding the alleged offending was either poor or hampered by her unwillingness to concede or admit matters that might damage the prosecution case against the accused. For example, whilst she said she would have been the person to take EM to the hospital, if necessary, she said she had no recollection of EM’s attendance at the Adelaide Children’s Hospital for stomach pains in 1978 or 1983, where EM had rectal examinations performed upon him. She said she never gave her consent for him to have a rectal examination at the hospital in 1978 and did not recall giving her consent in 1983. However, she then said that if she had taken him to the hospital for abdominal pain she would have consented to a rectal examination if asked. I consider this concession to be significant because it gives rise to an inference that such consent would have been given if the accused had explained to RLK the necessity to perform a rectal examination upon EM.
RLK rejected the suggestion that she took EM to the accused for stomach pains and said she would have remembered stomach pains. This assertion did not sit comfortably with her evidence that she could not recall EM going to the hospital for stomach pains.
RLK was prone to referring to the ‘mists of time’ when she was presented with irrefutable evidence contradicting her account of events. Her evidence that she was quite certain that the accused did not see EM after the day his father died was contradicted by the body of evidence establishing that EM continued to see the accused up until 1985. The same can be said of her evidence that the family lived at the West Terrace property until 1983.
RLK’s evidence that the accused stroked EM’s cheek in an upward fashion on the day his father died was not a matter EM mentioned in evidence; EM could not recall seeing the accused on the day his father died. Given RLK’s antipathy towards the accused and her bias against him, I consider it highly likely that RLK has reconstructed her recollection of an innocent and consoling gesture by the accused, giving it an unnatural and sinister connotation.
I reject as implausible RLK’s evidence that she never spoke to EM about what the accused had done or said or the treatment he recommended, if in fact she had been given no information by the accused about this. I note that her evidence that she would go into the treatment room with EM and the accused before being asked to leave was inconsistent with the evidence of EM that she was directed to remain in the waiting room. I reject as implausible RLK’s evidence that the accused never told her that he was going to examine EM before he did so, that she was not told of the outcome of the consultation and that the accused consistently said to her after a consultation with EM 'He'll get over it. Give him a Disprin. If he’s not any better bring him back’. I consider it highly unlikely that RLK would have continued to use the accused as the family practitioner if that was the extent of the information she was given by the accused and the manner in which he dealt with the variety of presenting complaints. Further, this evidence is completely at odds with the evidence of Dr RJM of the good character of the accused and his reputation as an ethical and diligent general practitioner.
I accept that Dr Young was a very experienced colorectal surgeon and was able to give accurate evidence of the appropriate practice for a colorectal surgeon between the 1970’s and the 1980’s. I accept his evidence regarding anatomy of the anal canal and his evidence clearly established that rectal examination is an appropriate diagnostic tool for symptoms consistent with impacted faeces or an anal stricture. I accept his evidence that massaging the anal canal is not an appropriate treatment for an anal fissure and nor is a weekly rectal examination because the appropriate conservative treatment would not have had a chance to work. Dr Young accepted that a report from a patient of thin ribbon like stools would be consistent with a possible anal stricture and stool leakage would necessitate a rectal examination. His evidence established that the note ‘PR’ refers to a rectal examination.
However, the weight I am prepared to attach to Dr Young’s opinion that an anal stricture is unheard of in a child is limited by the fact that this was based on his own experience where his field of expertise involved, in the main, the surgical treatment of adults following a referral by a GP and a search on the internet for literature prior to giving evidence. He did not have experience as a GP and nor was he a paediatric gastroenterologist or paediatric surgeon. He had never encountered impacted faeces in a child before, a matter which is a reflection of the fact that his patient base was predominantly adults.
Dr RJM was an impressive witness. He gave his evidence in a straightforward and matter of fact manner. Given his knowledge of, and familiarity with the practice at 356 Magill Road, I prefer his evidence of the layout of the premises and the identity of the staff members who worked there to that of EM and RLK where it differs. Dr RJM could not recall whether there was a keyhole with a lock and a key to lock it for any of the doors of the treatment room. In the absence of any independent and objectively reliable evidence confirming that the doors to the treatment were able to be locked and were locked and had a key of the type described by EM, I am not prepared to accept as accurate EM’s evidence that the accused locked the door to the treatment room when he engaged in the conduct the subject of the charge. EM gave evidence that the door was locked but the evidence of Dr RJM establishes that there were at least two doors to the treatment room, if not three. EM did not suggest that there was another door to the treatment room and that this door was also locked by the accused.
I accept the opinion of Dr RJM regarding the appropriateness of a rectal examination and course of dilatation treatment based upon the facts he was asked to assume. The limitation on the weight to be attached to the evidence of Dr Young regarding anal strictures not occurring in children was illustrated by the evidence of Dr RJM. He gave evidence that he had noted anal strictures in children when he had performed a rectal examination. He also endorsed the appropriateness of anal dilatation by the finger where the child’s rectum was found to be empty, but the anus was tight and narrow.
Neither Dr Young, nor Dr RJM was asked whether an examination of a patient in an ‘all fours’ position was or was not an appropriate way of performing a rectal examination. Accordingly, their evidence does not advance the prosecution case that the ‘all fours’ position of EM during one or more of the rectal examinations was not consistent with a legitimate diagnostic or examination technique. EM’s evidence that gloves were worn, and lubricant used (or the possibility of a finger stall on one occasion) on each occasion of digital penetration cast doubt upon the allegation that what took place was not a rectal examination but an act for the sexual pleasure of the accused.
Analysis
The evidence in the prosecution case alone and the findings of fact I have made from it, together with my assessment of the reliability and credibility of the evidence of EM and RLK on crucial and disputed matters, would not have satisfied me beyond reasonable doubt that EM presented to the accused without any complaint that would justify a rectal examination and that any rectal examinations performed upon him were done so without consent and for no proper medical diagnostic or treating purpose but for the accused’s sexual pleasure. I am satisfied that the doctor-patient relationship that existed at the time of the alleged unlawful sexual acts was a relationship for the purposes of s 50 CLCA and that the accused was an adult and the complainant a child during the period of the charge. However, the evidence in the prosecution case is not capable of proving beyond reasonable doubt that the accused indecently assaulted EM on any occasion whilst he knowingly maintained that doctor-patient relationship.
Assessment of defence witnesses and findings
There was a significant body of evidence led as part of the defence case, which, for the reasons that follow, I have accepted as credible and reliable, and which enables me to positively reject the evidence of prosecution witnesses on crucial and disputed matters.
My findings regarding the evidence led as part of the defence case requires me to return a verdict of not guilty but also enables me to make positive findings regarding disputed matters.
Despite his age, the accused gave his evidence in a clear and articulate manner, pausing only when the word he was looking for escaped him. I formed a very favourable impression of him as a witness, and my impression of him accorded with the opinion of Dr RJM and his reputation as described the character witnesses called in the defence case. The accused’s evidence regarding the layout of the medical practice and the staff employed there was supported by Dr RJM.
Although it would have been unsurprising for a general practitioner in the accused’s position to be unable to recall the circumstances of consultations with a patient some 40 years ago, the presenting complaint and findings upon his first rectal examination explain why the accused has retained a very good memory of the three consultations with EM about which he gave evidence and he gave a coherent account of this. Further, it is equally explicable that the accused would recall the consultation with EM in November 1982 because on that occasion he was told EM’s father had died. As in any profession, there will be some cases which are unusual, unique or otherwise distinctive which enable a person to recall them notwithstanding the lapse of many years. The additional overlay of EM having a number of tests conducted at the Adelaide Children’s Hospital, including at the psychiatric department, and the information the accused received about those have no doubt have contributed to his recall of EM as a patient.
I accept the accused’s evidence regarding EM’s presentation to him with a history of runny poos over a period of three weeks, his decision to perform a rectal examination to determine if there were impacted faeces, his discussion with the accompanying relative about the need to perform a rectal examination and the relative’s concurrence or consent and the presence and role of Ms Liddicoat during the procedure. The appropriateness of a rectal examination in those circumstances was clearly established by the evidence of Dr RJM, Dr Young and Dr Joyner. The accused gave detailed and compelling evidence regarding what occurred during the first rectal examination. The fact that EM was an amenable patient and complied with the instructions may well have been the result of both the accused’s explanation of what he was doing and the fact that, by this time, EM had undergone a rectal examination at the Adelaide Children’s Hospital in 1978. Accordingly, the procedure itself was not entirely novel, although in this case would have been painful and unpleasant.
I accept the accused’s evidence that during the first rectal examination he had diagnosed an anal stricture and determined that a course of dilatation was appropriate over a period of 3 weeks. I prefer the evidence of Dr Joyner to that of Dr Young regarding the occurrence of anal strictures in children, noting that Dr RJM had also diagnosed this condition in children. Accordingly, I find that an anal stricture can and does occur in children between the age of 5 and 16 years, albeit rarely.
Dr Joyner, whose qualifications and experience were such as to make him eminently qualified to give an opinion on GP practice in the 1970’s and 1980’s with respect to rectal examinations and conditions of the anus and bowel in both adults and children, said that he would see an anal stricture in a child between the age of 5 and 16 years possibly two or three times a year. More rarely would he see an anal stricture without a fissure being demonstrated and he said that in such a case conservative treatment ran the risk of worsening the problem and that a reasonable course of action on the assumed facts (based on the accused’s evidence) was a weekly course of treatment by anal dilatation over three weeks.
I am satisfied on the evidence led before me that an anal stricture is a condition from which a child can suffer and where that condition is diagnosed without the presence of an anal fissure an appropriate course of treatment in the 1970’s and 1980’s was weekly anal dilatation over the course of 3 weeks. In making that finding, I have relied upon the evidence of Dr RJM and Dr Joyner, both of whom I found to be properly qualified experts in their respective fields and whose opinions were clearly based upon expertise and experience.
To the extent that there was a conflict between the evidence of Dr Young that an anal stricture can only be present where the rectum is ‘loaded’ and the evidence of Dr RJM and Dr Joyner that anal strictures in children can occur where the rectum is empty, I prefer and act upon the evidence of the latter. In any event, as Mr Phillips conceded, even if I accepted Dr Young’s evidence and found that the accused’s diagnosis of a stricture was wrong, the inference arising from that was that the course of treatment embarked upon by the accused was not an appropriate one. That, of itself, could not lead to a conclusion that the purpose of the dilatation was for the sexual pleasure of the accused.
Dr Joyner gave evidence that a rectal examination may appropriately be performed by a medical practitioner on a patient who is in an ‘on all fours’ position, that is kneeling on a surface and with hands resting on that surface in order to fully examine the anus to the extent of 360 degrees. I accept that the accused’s decision to ask EM to get onto ‘all fours’ during the second rectal examination was an appropriate position in which to examine him once he had felt something on the left side of EM’s anus during the initial examination whilst in the left lateral position. In doing so, I have had regard to the unchallenged evidence of Dr Joyner that asking a patient to assume that position was an appropriate alternative to the left lateral and a means of ensuring a full examination of the entirety of the anal canal. I also accept the accused’s evidence that the reason he dilatated EM’s anus while he was in the ‘all fours’ position on the third occasion was because EM had assumed this position without being asked to and the accused thought he was happy to be in that position. Although the accused said in hindsight, he should have told EM that position was not necessary, I infer from that answer that the accused believed that this position somehow contributed to EM’s subsequent belief that he had been sexually assaulted.
The accused’s evidence that, being vaguely uncertain about what he was doing because he had not encountered a patient like this in 20 years of practice, he informally consulted Dr Sandy Nield struck me as plausible and consistent with the large body of character evidence establishing that the accused was an ethical and conscientious general practitioner. The accused was not challenged in cross-examination on this topic.
The accused’s evidence was not shaken in cross-examination, much of which was directed towards testing the legitimacy of his diagnosis of anal stricture and the course of treatment he implemented. Although the accused accepted that it was possible he may have performed more than 3 rectal examinations on EM, that does not enable me to make a firm finding that any further rectal examinations in fact occurred. It was put to the accused that he never discussed any ‘anal stenosis issue’ with RLK and he unequivocally denied it. It was not put to the accused that the purpose of the rectal examinations was for his own pleasure. It was clear from the accused’s evidence that the rectal examinations were a legitimate medical procedure from which he derived no pleasure.
The accused’s undisputed good character, the absence of any complaint against him in all his years of practice and his reputation as an ethical and conscientious practitioner are relevant to an assessment of his evidence that he obtained the consent of the accompanying adult to perform rectal examinations upon EM and explained the procedure to EM. I have already observed that I consider it inherently unlikely for the accused to have proceeded to perform a digital rectal examination upon EM without any explanation or discussion of it with EM and the accompanying adult.
Positive findings
Having accepted the evidence of the accused as truthful and reliable, the evidence of Dr Joyner, Dr RJM and Dr Young provides an ample basis upon which I make the following findings:
1.In late 1981 or in 1982 EM attended the accused’s surgery with an adult female relative both of whom he saw in his consultation room. EM presented with a complaint of small loose bowel actions for the preceding 3 weeks, was eating but feeling vaguely uncomfortable but was not ill.
2.The accused, EM and the accompanying adult and Janet Liddicoat went into the treatment room where the accused asked EM to remove his clothes down to his underclothes. The accused then took his temperature, listened to his heart, looked for enlarged lymph glands and examined his abdomen which felt normal. EM was not feverish and looked okay.
3.The accused suspected that the presenting complaint was consistent with impacted faeces and explained to the accompanying adult that he needed to perform a rectal examination and she gave her consent to this examination. The accompanying adult did not remain in the room. The accused explained to EM what he thought might be the cause of his loose bowel actions and told him he would have to put a finger into his bottom which would be uncomfortable. The accused put EM into the left lateral position and put on a glove with lubricant and attempted a rectal examination but was unable to insert his finger into EM’s anus. The accused engaged in soothing conversation with EM in an effort to relax him, but this did not work. Janet Liddicoat was present and also speaking with EM in an effort to relax him. The accused then left for a few minutes and returned and inserted his finger into EM’s anus and with great difficulty reached his rectum, finding it empty. The accused felt EM’s anus was very tight. Janet Liddicoat was present during this procedure.
4.As a consequence of his finding of an empty rectum, the accused excluded impacted faeces as a diagnosis. The accused considered that EM had an anal stricture and understood the treatment for this condition was digital dilatation. He explained to EM that he would have to put his finger in his anus and then did so, moving his finger in and out and around. Whilst doing so, the accused was speaking with EM in order to relax him.
5.When the accused had finished the dilatation, he explained to the accompanying adult what he had done and why he had done it and that EM would need to come back within a week for the same treatment and a week after that.
6.EM attended the accused’s surgery a week later with an adult relative, likely to be RLK. He spoke with that person and asked whether EM’s bowels were improving, and he was told that they were definitely better. He then explained that he would need to repeat the procedure from the week before but that he did not think it would hurt as much. The accompanying adult did not remain in the room. Whilst in the treatment room, the accused asked EM to remove enough of his clothing for him to access his anus and EM did so. Janet Liddicoat was present. The accused inserted a gloved and lubricated finger into EM’s anus and felt something on the left side of his anus. Because he wanted to obtain a better feeling of that area, he asked EM if he would get up on his hands and knees, which he did. The accused inserted his finger into EM’s anus and dilatated it for up to three minutes.
7.At some point during the three-week period of dilatation the accused discussed EM’s case and his treatment with general surgeon Dr Sandy Nield and was told by Dr Nield that the treatment he was administering was correct, but Dr Nield advised him that while he should be using anal dilators a forefinger may be adequate. Dr Nield told the accused that the condition could recur.
8.EM attended the accused’s surgery a week after the second occasion of dilatation in company with his mother RLK. The accused explained to RLK the treatment he had been performing. After that, the accused asked EM to take off enough clothes to access his bottom. He left the treatment room to ask RLK whether she wanted to come into the treatment room, but she said no. When he returned to the treatment room EM had taken off some of his clothes and was in an ‘all fours’ position on the examination bed. The accused then inserted a gloved and lubricated finger into EM’s anus for the purpose of dilatation. He did that for a couple of minutes and EM’s anus dilated easily. The accused then told EM that he hoped the treatment had fixed the problem, but he could not be sure. EM then put his clothes on, and the accused then told RLK what he had done and that there was nothing more to be done and that hopefully it would not recur but if it did, she should bring EM back.
9.On one of the occasions upon which a rectal examination or dilatation occurred the accused used a finger stall instead of a glove.
10.On 17 November 1982 RLK brought EM to the accused’s surgery to see him because he had a feverish illness. The accused examined EM in the presence of RLK and Janet Liddicoat during which RLK told the accused that EM’s father FM had died that day. The accused consoled EM by telling him that his own father had died when he was three and that he was too young to understand what had happened but that he felt it at EM’s age and so he was sure that EM would feel it. The accused could not find anything wrong with EM on examination and told RLK that he thought it was a viral illness and he would get over it without any trouble. After the examination had concluded, the accused tweaked EM’s check by pinching it between his thumb and forefinger.
11.On each of the three occasions that I have found that the accused inserted a finger into EM’s anus it was for a proper medical purpose, namely examination or diagnosis or treatment of a medical condition and was done with the consent of EM’s mother or other guardian who accompanied him to the appointment.
Verdict
I find the accused not guilty.
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