R v Davis

[1995] FCA 529

CATCHWORDS

CRIMINAL LAW - Application for permanent stay of committal proceedings - Fourteen charges of indecent assault against medical practitioner - Assault said to have occurred during the course of medical examinations - Charges relate to consultations that occurred in period 1960 to 1974 inclusive - Accused now retired from practice - Patient records destroyed - Relevance of fact that Court has declined to stay Medical Board investigation - Likelihood of prosecution failing to negative consent in some cases - Special prejudice caused by loss of medical records - Stay order upheld.

PRACTICE AND PROCEDURE - Application to restrain publicity - Importance of public hearing of matters before the Court - Whether a special case for a restriction on reporting was shown.

THE QUEEN v. GEOFFREY DAVID DAVIS

No. ACT G18 of 1995

CORAM:    WILCOX, BURCHETT & HILL JJ
PLACE:    CANBERRA
DATE:     23 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA)        No. ACT G18 OF 1995
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY               )
GENERAL DIVISION                )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
            OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  THE QUEEN

Appellant

AND:GEOFFREY DAVID DAVIS

Respondent

CORAM:    WILCOX, BURCHETT & HILL JJ
PLACE:    CANBERRA
DATE:     23 JUNE 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)        No. ACT G18 OF 1995
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY               )
GENERAL DIVISION                )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
            OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  THE QUEEN

Appellant

AND:GEOFFREY DAVID DAVIS

Respondent

CORAM:    WILCOX, BURCHETT & HILL JJ
PLACE:    CANBERRA
DATE:     23 JUNE 1995

REASONS FOR JUDGMENT

THE COURT:  Geoffrey David Davis, the respondent to this appeal, applied to the Supreme Court of the Australian Capital Territory for an order permanently staying 14 charges brought against him by the Director of Public Prosecutions in the Magistrates Court of the Territory.  The application was heard by Gallop J and granted.  The Director now appeals against that order.
The course of the proceedings
         The appeal came before Lockhart J at a call-over on
17 March 1995.  His Honour was informed that a confidentiality order had been made in the Supreme Court, precluding publication of Dr Davis' name and also of the names of the complainants.  He was asked to make a similar order in respect of the proceedings in this Court and did so.

When the matter was called for hearing before us on Monday last, a journalist employed by ABC Radio applied to the Court for a variation of Lockhart J's order, so as to enable the publication of Dr Davis' name, but not that of the complainants.  Mr G J D Richardson SC, counsel for the Director of Public Prosecutions, expressed neutrality on the application but it was opposed by Mr K Horler QC, counsel for Dr Davis.  Mr Horler referred to the likelihood that, if the variation were allowed, there would be media publicity about the case in which his client was named.  He said that this publicity could have a prejudicial effect upon a jury if the appeal succeeded and his client was put on trial.  He submitted that if, contrary to his primary argument, the Court was disposed to interfere with Lockhart J's order at all, it ought to abrogate it entirely, thus allowing publication of the complainants' names as well.

At the conclusion of argument on the application, we indicated our opinion that it should be granted and we made an order in the terms sought; that is, we varied the order of Lockhart J so as to permit publication of Dr Davis' name but not those of the complainants.  We said we would give reasons
later.  We now do so. 

It seems that, even without disclosure of the respondent's name, this case has attracted media interest.  Especially under those circumstances, we accepted the virtual certainty that, if we granted the application, Dr Davis' name would be reported in the media.  The Canberra community is relatively small and we accepted the probability that some of the jurors (if not all of them) who were eventually empanelled to try these charges, if any went to trial, would read or hear any fresh media report and remember Dr Davis' name.  Under those circumstances, there would be a possibility of one or more jurors being influenced by the report.  However, that statement may be made in relation to any case.  In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings.  Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government:  except in extraordinary circumstances, the courts of the land are open to the public.  This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers.  As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.  This includes the names of the parties to proceedings, which are ordinarily known to everyone in court.
         There are a few exceptions to this general principle.  One exception concerns people claimed to be victims of crime; particularly sexual offences.  Most, if not all, Australian legislatures have enacted legislation providing anonymity to some such people.  They did so, presumably, because their members felt that publication of those peoples' complaints or evidence might seriously affect their lives, whatever the outcome of the proceedings.  The legislatures apparently made the judgment that, notwithstanding the public interest in freedom to report court proceedings, this  consideration justifies suppression of complainants' names in many sexual assault cases.  We felt we should take this community attitude into account in determining whether to allow the complainants' names to be published.  There being no special circumstances requiring a departure from the general rule, there was no justification for permitting publication of the complainants' names in this case.

However, the position is different in relation to the names of persons charged with criminal offences.  In that area there is no general rule or practice in favour of suppression.  In some jurisdictions, there is some legislation to this effect; but  in most Australian jurisdictions, including the Australian Capital Territory, names may be reported.  Of course, this situation comes at a price.  In the case of an innocent person, that price may be great.  At the same time, publicity has occasionally caused undiscovered
witnesses to come forward, a matter which should not be overlooked where names are suppressed, whether of an accused or, indeed, of complainants.  In a case where a jury trial follows publicity, nobody could doubt that jurors sometimes come to court with a recollection of a media report naming the accused and a preconceived idea about the case, even about the accused person's guilt or innocence.  This is why judges routinely instruct jurors to put media reports out of their minds and to decide the case only on the basis of what they hear and see in court.  We cannot know to what extent jurors heed this instruction; but the system assumes that they do.

Whether or not there should be a general change in the rules regarding pre-trial publicity is not for us to determine.  Momentous issues are involved.  If there is to be a change, this should occur only after widespread public debate.  Mr Horler assumed the existence of the normal rule but argued this was a special case.  We did not think it was.  Even if Mr Horler was correct about the manner in which this proceeding will be reported by the media, and about the possibility of jurors remembering any reports, we felt there was nothing special about those facts.  Accordingly, there was no warrant for departing from the general rule that an accused person's name may be published.

A second application was made, this time by Mr Richardson on behalf of the appellant.  He asked us to admit into evidence an affidavit that had been tendered to Gallop J but rejected by him.  The affidavit was made by Dr Patricia Easteal of the Australian Institute of Criminology.  It detailed results of a national survey on sexual assault conducted by the Institute in 1992; in particular, it highlighted the high proportion of sexual assaults that are not reported to police, or not reported for a very long time.  We did not immediately rule on the tender but, having given the matter consideration, we now indicate that we are not prepared to use it as evidence.  There are problems about this type of survey material being used as evidence of the facts.  However, our decision to reject the affidavit is of no practical importance.  We are aware of Dr Easteal's point.  Indeed Wilcox J made the same point in a judgment delivered just before the hearing of this case, The Queen v Lane (19 June 1995, Wilcox, Ryan and Higgins JJ) when he said:

"Both the everyday experience of criminal courts and the reported cases demonstrate that it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child.  Without saying anything about the facts of this case, which have not been investigated, it seems that many sexual assault victims are unable to voice their experience for a very long time.  To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law."

We have approached the present case on that basis.

The facts

The respondent is a qualified medical practitioner.  He practised in a Canberra general practice from 1955 until 30 June 1992.  For a period of about two years after that date, he carried out medical examinations required for the issue and renewal of pilots' licences.  He has now retired completely.

On 12 July 1994 informations were sworn in the Magistrates Court in respect of 14 charges.  Each charge referred to a named female person (13 in all) and alleged that, between specified dates, Dr Davis assaulted that person and, at the time of the assault, committed an act of indecency.  The dates of the alleged assaults varied; but all fell within the years 1960 to 1974 inclusive.

The complainants' statements are in evidence.  It is not necessary to set out their detail.  Ten of the 13 complainants were less than 18 years old at the time of the relevant incident, two being only 15 or 16 years of age.  The other three complainants were aged 19 or 20, 20 and 29 years, respectively.  Each complainant was a patient of Dr Davis.  Most complainants, on their own account of the matter, presented with a gynaecological problem.  It might be thought that problems of this kind could warrant a vaginal examination.  In other cases the need is not so apparent, at least on the complainant's statement.  In all cases, the complainant alleges that Dr Davis carried out an internal vaginal examination and did so in an inappropriate manner.  Most complainants allege that Dr Davis attempted to stimulate their clitoris.   Some speak of touching of a breast.  We emphasise that, at this stage, these are only allegations.  Although, no doubt, it is embarrassing to Dr Davis for us to refer at all to the nature of the allegations, we must do so in order to make our reasons intelligible.  But that does not mean that we assume the allegations to be correct.  Nor do we assume they are not.  The accuracy of the allegations not having been investigated, we make no assumption either way.

Three other factual matters should be mentioned.  First, with one exception, no complainant reported her experience to a person in authority until very many years after the event.  The exception was aged 17 years at the time of the incident in July 1969.  Within a few days of her visit to Dr Davis and after a conversation with her mother, she made a complaint to the police.  The police took a statement from her and interviewed Dr Davis.  He admitted making an internal examination of the complainant but denied the elements of the examination about which she complained.  The case being one of word against word, with no corroboration of the complaint, the then Acting Commissioner of Police decided against criminal proceedings. 

Second, according to their statements of evidence, most of the 12 remaining complainants told someone - a family member or friend - about their experience shortly after it occurred.  But they did not then complain to anyone in authority.  Various reasons are given, mostly fear of being disbelieved or a sense of shame.  All the 12 remaining complainants reported their experiences to the police only after publication, on 9 February 1994, of an article in  The Canberra Times concerning the 1969 report and investigation.

Thirdly, Dr Davis gave affidavit evidence before Gallop J.  He said that, in late 1993, after he left the general practice, the secretary/receptionist culled and destroyed the medical records of people who were no longer patients of the practice.  In this process, the records of all but one of the complainants were destroyed.  Dr Davis said he could recall only four of the complainants.   He named them.  He said in his affidavit:

"Whenever I have carried out an internal medical examination of any person it has been my usual practice to record this fact by an entry on the patient's card.  Because the patient cards relating to all of the persons except (name deleted) have now been destroyed,  I am prejudiced in my defence to these charges because I say that those patient cards would record the fact of whether or not I carried out an internal medical examination and would also record the date on which I did so and the patient's clinical signs and reason for carrying out an internal medical examination."

Dr Davis' evidence was not challenged.  He was not cross-examined.  Although he named the secretary/receptionist who had destroyed the medical records, Mr Richardson did not call her to give evidence in rebuttal.  Neither did he call any of Dr Davis' former partners.  Accordingly, we must approach the case on the basis that the medical records were in fact destroyed, by someone acting independently of Dr Davis and for reasons that had nothing to do with this case, at a time when Dr Davis had no reason to believe that there was a possibility of proceedings being brought against him.  The records would, of course, have been available if proceedings had been instituted before 1993.

The decision of Gallop J

Gallop J commenced his reasons for judgment by referring to litigation between Dr Davis and the Medical Board of the Australian Capital Territory arising out of the Board's decision to investigate these same complaints.  Dr Davis sought a stay of the investigation.  His application was refused by Higgins J in the Supreme Court of the Australian Capital Territory.  That decision was affirmed by this Court on appeal (Neaves and Ryan JJ, Gallop J dissenting).  See  Davis v Medical Board of the Australian Capital Territory (1994) 52 FCR 279. That decision gives rise to one of the arguments put to us by Mr Richardson.

After referring to some general matters relating to committal proceedings, Gallop J summarised the complainants' statements.  In respect of six complainants, he made a comment along the lines that, if the complainant's evidence in the committal proceedings accorded with her statement to the police, the prosecution might fail to establish, on a prima facie basis, that she did not consent to what took place.  Mr Richardson complains of these observations, as unwarranted and extraneous to the task on which his Honour was engaged.

After completing his analysis of the statements of evidence, Gallop J referred to the relevant legal authorities.  We need not set them out.  It is enough to say that his Honour quoted passages from authorities that emphasised, first, that the grant of a permanent stay is an exceptional step, justifiable only where the court is satisfied that an unfair trial will ensue and there is no other means, such as directions to the jury, that will bring about a fair trial; and, second, that it is not enough that there be unreasonable delay in bringing the proceedings or, even, that unreasonable delay has caused prejudice to the accused.  Prejudice to the accused must be weighed against the community's right to expect that persons charged with criminal offences be brought to trial.

After referring to the aspects of prejudice relied on in this case, Gallop J concluded:

"The decision whether to stay the committal proceedings against the applicant has to be the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings would be so unfairly and unjustifiably oppressive of the applicant as to
constitute an abuse of the Magistrates Court process.  The comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involves a substantial element of individual judgment.

This is an extreme case which does not depend on the making of an order on the basis of delay alone.  In addition, the destruction of the records and, in the case of several complainants, the flimsiness of the element of absence of consent, make it just that a permanent stay of criminal proceedings in the Magistrates Court be granted.  There is a fundamental defect which goes to the root of those proceedings and there is nothing that a magistrate could do to relieve against its unfair consequences.  The lapse of time is such that the proceedings are necessarily unfair so that any committal for trial of the applicant on such stale allegations would bring the administration of justice into disrepute."

The significance of the primary Judge's view

At the commencement of his submissions to us, Mr Richardson suggested that the principles relating to appeals against discretionary judgments, authoritatively stated in House v The King (1936) 55 CLR 499 at 504-505 and subsequent High Court decisions, do not apply to an appeal against a decision concerning a permanent stay. He referred to a comment by Kirby P in Cooke v Purcell (1988) 14 NSWLR 51 at 60:

"I realise that Mason CJ, dismissing the Attorney-General's application for special leave to appeal from the decision of this Court in Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685, referred to the decision which Maxwell J had to make as being 'discretionary/supervisory' in nature. With respect for my own part, I have always doubted that it is apt to describe the decision as
'discretionary' in character.  I say this although it certainly has the attributes of value judgment by reference to a broadly stated standard such as was described in Norbis v Norbis (1986) 161 CLR 513 at 517. I express this doubt because it is offensive to reason to suggest that a court nevertheless retains a 'discretion' to refuse relief although an accused person has shown that a criminal trial would now be unfair."

However, Mr Richardson recognised that, in The Queen v Glennon (1992) 173 CLR 592 at 600, Mason CJ and Toohey J noted, without adverse comment, that it was common ground that the respondent's appeal to the Court of Criminal Appeal could not succeed unless it were shown that the trial judge's decision "was erroneous in accordance with the established principles governing appeals from discretionary judgments". Accordingly, their Honours said, "it was for the respondent to show that (the trial judge) acted upon a wrong principle, took into account some extraneous consideration, failed to take into account a relevant consideration or mistook the facts". It was because of this comment that the majority judges in Davis v Medical Board of the Australian Capital Territory took the view that they should apply the principles enunciated in House v The King to their review of Higgins J's primary decision.

Mr Richardson also recognised that, in Cooke v Purcell, Kirby P followed the passage quoted above with the observation: 

"However that may be, it is accepted that, in
proceedings such as the present, it is not for this Court simply to look afresh at the materials which were before the primary judge and to determine what it would do, ignoring his evaluation."

We think that there will rarely be much practical difference between the two approaches.  Even if it is inappropriate in this context to use the word "discretion", in practice an appellate court will be reluctant to interfere with a primary judge's evaluation of the relevant factors.  We suggest that an appellate court is likely to interfere only in a case where it considers the primary judge to have misunderstood the facts or misunderstood or misapplied relevant principles.

The Medical Board proceedings

Mr Richardson criticises Gallop J for failing to pay sufficient regard to the result of the litigation between Dr Davis and the Medical Board.  He points out that Gallop J said in his reasons for judgment:  "I do not think it is at all relevant to the present application that the applicant will have to make answer to the Medical Board in disciplinary proceedings at some time."  Mr Richardson says this approach gives no weight to the fact that the allegations grounding the complaints of professional misconduct are identical to those alleged in the committal proceedings; similar considerations apply to the two applications and the likelihood that the respondent will have to answer the identical allegations reduces the degree of prejudice he would suffer in answering criminal charges.  He submits that, whatever his Honour's view about the decision concerning the Medical Board proceedings, he should have given it weight in this proceeding, if only in the interests of comity.
         We do not accept this submission.  It is true that both proceedings arise out of the same set of allegations.  If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation.  But that does not mean that the result, in terms of a stay, must be the same in each proceeding.  There are important differences between the two proceedings.  The Medical Board proceedings are not punitive in character.  Although an order striking a practitioner's name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner.  Consistently with this distinction, a different standard of proof applies.  An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities.   Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt.  The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt.  The point was made by Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177

CLR 378 at 396:

"The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings.  In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners."

There being different elements involved in the weighing process, we think Gallop J was correct in declining to determine the application for a stay of the criminal proceedings by reference to the outcome of the Medical Board case.

Consent

We have already mentioned comments made by Gallop J, in analysing the complainants' statements, about the possibility in some cases of the prosecution failing to negative consent.  There is no doubt that, in committal proceedings, the prosecution would bear the onus of establishing, on a prima facie basis, lack of consent in respect of each alleged offence.  It is also clear that, in considering whether or not to stay proceedings as an abuse of process, a judge is entitled to consider the strength of the prosecution case.  However, we respectfully disagree with Gallop J's observations about consent and, in particular, his statement about "the flimsiness of the element of absence of consent", in several cases.  Of course, the evidence might change before the conclusion of a trial; and a jury might take a different view from ours.  But it seems to us erroneous to regard the failure of a teenage girl, or even a young woman, immediately, directly and effectively to protest about a medical practitioner's actions during a medical examination as an indication of her consent to intimate contact not required for medical purposes; if that is what happened.  Each complainant makes clear that her only relationship with Dr Davis was a patient-doctor relationship.  In each case the complainant saw Dr Davis, on the relevant occasion, because of a perceived medical problem.  She undressed and submitted to examination by him because he represented that this was medically necessary.  There is nothing in any complainant's statement to suggest that she consented to being examined or touched for any other reason or that she encouraged, or knowingly permitted, any touching not medically necessary or that she indicated that she was doing so.  The only described reactions to Dr Davis' apparently inappropriate touching were negative ones.  As we see the matter on the basis of the statements, each complainant agreed to be examined and touched for the purpose of Dr Davis doing what was medically necessary, and no more.  If Dr Davis did in fact go beyond medical necessity, the statements afford no basis for believing that the prosecution would have difficulty in

negativing consent.

Prejudice

Despite our view about the matter of consent, we agree with Gallop J that this is "an extreme case which does not depend on ... delay alone."  Delay alone would not justify a stay:  see Jago v District Court of New South Wales (1989) 168 CLR 23. Of course, there will rarely be delay without at least some consequential prejudice. It is not necessary for us to determine whether the delay in this case is so extreme as, by itself, to have created such a degree of prejudice as to justify a stay of proceedings. Here there is special prejudice, occasioned by the destruction of the medical records. It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson's comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breast, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant's genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.

There is a further problem arising out of the loss of the records.  We have already mentioned the failure of all but one of the complainants to report her experience to anyone in an official position until after the Canberra Times article.  We can understand this.  However frustrating it may be to law enforcement officers and courts, a low reporting rate is a characteristic of sexual offences.  But it also seems to be a characteristic of sexual offences, equally understandable, that victims thereafter try to avoid the offender or, at least, placing themselves in a situation where the offence may be repeated.  So the subsequent behaviour of an alleged victim may provide insight into what happened on the occasion in issue.  In this context, it is most unfortunate that the medical records are lost.  It is clear from their own statements that some of the complainants consulted Dr Davis again after the alleged incident.  The fact that they did so does not necessarily undermine their versions of the incident.  The power inequality has to be taken into account.  However, information about subsequent visits (when, how often and for what reason) might throw some light on what happened on the critical day.   Without his records, Dr Davis is unable to say anything about these matters or even to give instructions to his counsel regarding subsequent visits which, for all anyone can now say, might have been significant to his defence.

Conclusion

In determining whether or not there ought to be a stay of proceedings, Gallop J had to consider more than the prejudice that would be suffered by Dr Davis because of the destruction of his records.  He had also to take into account the public interest in the enforcement of the criminal law.  This interest requires that, ordinarily, allegations of serious criminal conduct (as these are) should be brought to trial.  We accept the test enunciated by Mason CJ in Jago:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'."

We also note that, in Williams v Spautz (1992) 174 CLR 509 at 519, Mason CJ, Dawson J, Toohey J and McHugh J said that "the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed". The point, no doubt, is that, although there is a public interest in bringing allegations of serious criminal conduct to trial, there is no public interest in doing so under circumstances of irreparable unfairness. It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent.

We are satisfied that this unusual case meets even the demanding tests we have quoted.  Having regard to the nature of the allegations and the surrounding circumstances, there is nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay that has occurred, with the regrettable consequence of the loss of the medical records.  To apply a telling phrase used by Toohey J in Ridgeway v The Queen (1995) 129 ALR 41 at 71, taken from a Canadian case, to force Dr Davis to stand trial on these charges under these circumstances "would offend the court's sense of justice".

Some people, rightly anxious that sexual offenders be brought to account, may be disappointed by our decision.  They may think that it allows a guilty man to escape justice.  But that conclusion necessarily involves the assumption that Dr Davis is in fact guilty of the offences with which he has been charged.  The correctness of that assumption could only be determined by a fair trial.  It is not enough to say, as some might be tempted to do, that the allegations would not have been made unless Dr Davis was guilty.  That argument assumes there can only be one side to the story.  Everyday experience in the courts shows this is rarely so.  Nor is the situation really changed by the number of the complainants - especially when it is remembered that all except one of them emerged as a result of a newspaper article.  We do not for a moment suggest deliberate concoction, but there is always a possibility that the newspaper article induced a degree of unconscious reconstruction.  Time, too, may have obliterated memories of inconsistent facts and qualifications, leaving a deceptively clear impression.  That is why it is essential to have the facts surrounding each case.

It is important that guilty people are convicted. It is even more important that innocent people are not.  There can be no guarantee about achievement of either objective.  The courts can only strive to attain them.  The best contribution that judges can make is to insist that trials be fair.  Because a fair trial is not now possible in this case, it is necessary to uphold the stay order.  The appeal should
be dismissed.

I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:    23 June 1995

APPEARANCES

Counsel for the Appellant:       G J D Richardson SC

Solicitor for the Appellant:     Director of Public Prosecutions

Counsel for the Respondent:      K Horler QC

Solicitor for the Respondent:        Blake Dawson Waldron

Date of hearing:                 19 June 1995