R v Devadas - [2012] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DEVADAS
Criminal Trial by Judge Alone
[2012] SADC 135
Reasons for the Verdict of His Honour Judge Soulio
23 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - physiotherapist charged with digital rape of a client during the course of a treatment session.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 5, 46, 47, 48; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34M; Criminal Law Consolidation Act Amendment Act No. 10 of 2008 s 4, referred to.
R v H,T (2010) 108 SASR 86; R v J, JA (2009) 105 SASR 563; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97; R v El Rifai [2012] SASCFC 98, considered.

R v DEVADAS
[2012] SADC 135
Background

The complainant, J, a young woman, alleges that in January 2011, while undergoing physiotherapy for neck and lower back symptoms, she was digitally raped by the accused, who is a qualified physiotherapist. The accused concedes that he inserted his finger into J’s vagina, but asserts that the action was a legitimate diagnostic technique and that he obtained J’s consent before performing that technique. The accused elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The Information
The accused is charged with one count of rape pursuant to s 48 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The particulars alleged are that:
The accused, on the 5^thday of January 2011 at Woodville West, had sexual intercourse with J, without her consent, by inserting his finger into her vagina.
The Allegations
The complainant’s evidence was that the offence was committed during the course of a physiotherapy consultation between 5pm and 6pm on 5 January 2011 at the physiotherapy premises where the accused worked. The complainant alleged that during the course of massaging her hip and groin area the accused inserted his finger into her vagina. She did not consent to that act.
Directions
General Directions
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence is not required to prove the defence. The prosecution must disprove it beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt, or to show that the accused is probably guilty. In relation to either charge, I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied that the prosecution has proved, beyond reasonable doubt, each element of the charge before I could convict the accused.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of that charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
The evidence presented by the accused and the complainant established two opposing bodies of evidence. They cannot stand together. I am to consider all the arguments made to me on each side bearing on the evaluation of the evidence. If at the end of my deliberations I am satisfied, beyond reasonable doubt, that the prosecution evidence is the truth, my verdict is to be guilty. Alternatively, if I am persuaded by the accused’s evidence, my verdict is to be not guilty. If, after full and careful consideration I am unable to decide where the truth lies, or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and, again, my verdict is to be not guilty.
I remind myself that in considering the charge it is not simply a question of preferring one version of events over another, but rather determining whether or not the prosecution has proved each of the elements of the offence to the requisite degree.
Complaint Evidence
The prosecution led evidence, to which I will refer later, from both the complainant and a Ms G, as to a “complaint” made by the complainant. Section 34M of the Evidence Act applies and evidence of the initial complaint by J was led in accordance with that section which relevantly provides:
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)    it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)    it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
While the evidence of complaint to Ms G was admissible there is a discretion to exclude such complaint evidence.[1] Here, such evidence was admitted without objection. I bear in mind that evidence of the initial complaint to Ms G is only admitted to inform me as to the way in which the allegations first came to light; and potentially as evidence of the consistency, or lack of consistency, of the conduct of the complainant; and the reliability or unreliability of her evidence.[2]
[1] See R v H, T (2010) 108 SASR 86, (per Gray J); R v S, DD (2010) 109 SASR 46 (per Peek J).
[2] R v J, JA (2009) 105 SASR 563, per Duggan J at [93].
The way in which complaint evidence may be relevant in addressing consistency of conduct was described in R v Szejnoga in the following terms:[3]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
[3] R v Szejnoga (1998) 199 LSJS 97 at 102, per Doyle CJ.
Consistency of conduct is relevant to the consideration of the credibility of the complainant. If the evidence of complaint is relevant to show consistency of conduct, that evidence may buttress the complainant’s credibility.[4]
[4] R v H, T (2010) 108 SASR 86 at [47].
I bear in mind that complaint evidence is not admitted as evidence of the truth of what the complainant alleges. In assessing the weight to be given to the evidence of complaint, and its impact upon the credibility and reliability of the complainant, the circumstances leading to the complaint, and the context in which it was made must be borne in mind. I must determine the significance of the evidence in the circumstances of the present case.
The “complaint” evidence here was spontaneous. It was made at the first reasonable opportunity and in a spontaneous way. J’s complaint was totally referrable to the conduct eventually charged.[5] The initial complaint to Ms G was broadly consistent with J’s allegations at trial. The timing of the complaint and the circumstances in which it was said are consistent “in the sense of making a complaint when one would expect a complaint to be made”. It is consistent with her having been raped, and buttresses her credibility.
Distress Evidence
[5] R v El Rifai [2012] SASCFC 98.
I need to decide whether I accept that the complainant was genuinely distressed at the time of the making of the complaint, and the nature and extent of that distress. I bear in mind that signs of distress may result from any one of a number of possible causes; it may have been caused by the commission of the offence of rape as asserted, or to some other factor, or it may have been simulated.
Ms G’s evidence as to the complainant’s distress, which I accept, is admissible as evidence supporting the complainant’s evidence, and may buttress the complainant’s credibility.
It was not suggested to J that she was not distressed. I bear in mind that her evidence as to her emotional response to the alleged incident, is not distress evidence, but is nevertheless admissible, in that it assists in understanding the narrative of the complaint.[6] Nevertheless, caution is to be exercised in accepting such evidence.
[6] R v H, T (2010) 108 SASR 86 at [64].
The evidence of the complaint by J, and her apparent distress and her emotional state, is consistent with the offence having been committed in the circumstances she described, and buttresses her credibility.
Elements of the Offence
Rape – s 48(1) CLCA
Rape as defined by s 48(1) CLCA is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt.
The first element is that the accused engaged in sexual intercourse with the complainant. The definition of sexual intercourse includes penetration of the complainant’s vagina, labia majora or anus by any part of the body of the accused or by any object.[7] Here, the act alleged to constitute the rape is that the accused inserted his finger into the complainant’s vagina. It is common ground that such penetration occurred.
[7] Section 5(1) CLCA.
The second element requires that the intercourse occurred without the complainant’s consent. On the evidence of the complainant, she attended for the purposes of a massage for therapeutic purposes and did not expect, nor consent to, the physiotherapist inserting his finger into her vagina.
Section 46(2) CLCA defines consent as meaning a “free and voluntary agreement to engage in the sexual activity with that person at that time.”
Section 46(3) of the CLCA provides:
(3)Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
(a)     the person agrees because of—
(i)the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or
(ii)an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or
(b)     the person is unlawfully detained at the time of the activity; or
(c)     the activity occurs while the person is asleep or unconscious; or
(d)     the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or
(e)     the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f)    the person is unable to understand the nature of the activity; or
(g)     the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
(h)     the person is mistaken about the nature of the activity.
Example—
A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.
The third element requires that the accused either knew that the complainant was not consenting, or was recklessly indifferent as to the lack of consent.
A person is recklessly indifferent to the fact that another person does not consent to intercourse if he:[8]
(a)is aware of the possibility that the other person might not be consenting to the act [or has withdrawn consent to the act] but decides to proceed regardless of that possibility; or
(b)is aware of the possibility that the other person might not be consenting to the act [or has withdrawn consent to the act] but fails to take reasonable steps to ascertain whether the other person does in fact consent [or has in fact withdrawn consent] to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is consenting to the act [or has withdrawn consent to the act] before deciding to proceed.
[8] Section 47 CLCA.
Again, I bear in mind that the onus is on the prosecution to prove, beyond reasonable doubt, that the accused knew that the complainant was not consenting, or that the accused was recklessly indifferent as to the lack of consent.
Witnesses
The prosecution case comprised the evidence of J, the complainant; her flat mate Ms G; her regular physiotherapist, Mr R, who was the accused’s employer; the practice receptionist, Ms K; the investigating officer, Detective Rowe, who produced a video recording of the interview of the accused; and an expert physiotherapist Mr Heynen; together with agreed statements, documents, and facts to which I will refer as necessary. The accused gave evidence in his own defence and was the only defence witness.
The Prosecution Evidence
Complainant
During the time particularised in the Information J was about 22 years old. At the time of giving evidence she was 24 years of age. She worked as a private music teacher and was completing a double degree at university. During university holidays she worked in a warehouse moving boxes, during which time she had experienced symptoms of back pain or strain. She had also been involved in a minor car accident and had experienced whiplash symptoms.
In late 2009 J sought physiotherapy for relief of her symptoms and attended the practice of Mr R, whom she knew through family connections. She had treatment for symptoms that she regarded as being due to both her work as a musician and her physical work, including ‘tennis elbow’, and neck and back symptoms. The treatment consisted of electrode therapy, acupuncture, and massage performed on her neck and lower back.
J required a follow up appointment at a time when Mr R was overseas on holidays. She said that Mr R came to the reception desk with her to arrange the next appointment. He originally suggested that one of the female physiotherapists be booked. That physiotherapist was not available when the appointment was required, and an appointment was made for the complainant to see the accused, whom she had not previously met.
The complainant attended the first appointment scheduled with the accused on 22 December 2010 at either 4.30pm or 5pm, and discussed with him the treatment she had previously received. The accused then proceeded to treat J by providing a deep tissue massage to her neck, shoulders, and upper and lower back. The accused said words to the effect that “back problems may be related to problems with the sitting muscles”, and that J would benefit from some work on the sitting muscles. J said in evidence that there was insufficient time for any such treatment at the first session. She said there was nothing unusual or different about the treatment she received, and that the treatment was of the regular duration of about half an hour.
A second appointment was arranged for 5pm on 5 January 2011, the date of the offence alleged against the accused. When J attended on that date the accused informed her that she was his last client for the day and that he could spend plenty of time with her. She was taken to the treatment room and proceeded to remove her top and lay face down on the massage table. J said that when the massage commenced she was wearing a bra, which was unclipped at the back, underpants and shorts. The door was closed. The accused then left the room to obtain massage oil and returned. She heard the door close again behind him.
The accused commenced massaging the complainant’s neck and upper shoulders and then progressed to her lower back. J noted that the massage oil had a distinct smell of lavender. During previous treatments massages had only been performed using either a deep heat type cream, or a menthol cooling gel. She said the accused was using a lot of oil. As the oil was spilling onto her shorts, the accused suggested that J remove her shorts, and she did so. The accused also suggested that the complainant’s “glutes” or sitting muscles were very tight and that she would benefit from having the glutes massaged.
The accused then asked J to turn over. He clipped up her bra and she turned over. The accused asked whether she would like her stomach massaged and she said no. He started massaging her thighs and hips. J said that she was still wearing her underwear at that time. She did not think that she removed her underwear. J said that the accused asked her permission to put his hand underneath her underwear to massage her hip muscles. He explained that there was a relationship between the different muscle groups. Given the explanation, she agreed.
The accused continued to talk softly about the connection between muscle groups and about why she would derive benefit from being massaged in the hips. At that stage J had a towel covering her stomach area and chest. She said she felt quite drowsy. The accused was massaging her hips and working towards the groin area. J said that the massage hurt her slightly. She did not complain but reacted by “grunting or moaning”.
J said that the accused massaged her groin more than other areas and she started to become tense. The accused said “just relax, it’s ok”. J said in evidence that the accused then started massaging the area above her vagina. She took a moment to realise that he was intentionally massaging in that area, after which “quite a few things happened in very close succession”. When asked to clarify what she meant when she said that the accused was massaging or touching the area above her vagina she said that he was “touching the clitoris area”.

J said that although the accused had been initially explaining about muscle groups he stopped such explanations, and was massaging the inner part of the groin near the genital region.
The accused reached over towards her shoulder and said words to the effect “do you mind can I touch you?” or “is it all right can I touch you” but before she had any time to respond the accused inserted his fingers inside her vagina. She was not sure whether the accused inserted one or more than one finger into her vagina. She said in evidence that she was not sexually experienced.
J said in evidence that by time she realised what was happening, the accused was stroking the inside of her vagina and she told him “no that’s enough” and she tried to get up. The accused said “is everything ok?” J did not respond. He held her shorts out to her and she grabbed them from him, put them on and then moved away and put her top on.
J said in evidence that as she was putting her top on the accused said “can I come home with you? I can finish you off”, or “I can help finish you off”. She said “no, not ok”, grabbed her possessions and left. When she went to leave the room she realised that the door was locked and she had to open the lock to leave. J said that the door had never been locked on any previous occasion when she had had treatment at the clinic.
J went to the reception desk and asked when Mr R was returning and she made another appointment, which she later cancelled.
The complainant then drove the short distance to the house of Ms G, where she was staying. J said that her friend made a comment about the smell of lavender to which J responded that lavender was not going to have a very positive connotation for her anymore, and said that at that point she “kind of broke down” and her friend gave her a hug. She said in evidence that she talked through what had happened and then her friend suggested J have a shower while the friend called police. J was asked in evidence what she had said to Ms G, and said that she thought she had told Ms G that “the physio I had seen had thought it ok to help himself to me”.
J subsequently attended at the Port Adelaide police station, and then attended for a medical examination at Yarrow Place. J said, in evidence, that she was not sore in the genital area, but that she thought the lavender oil had reacted in her vagina and produced a tingling sensation.
In cross-examination the complainant agreed that the massage was painful when she was initially being massaged in the hips. She initially went along with the massage “at the front” because she assumed that “ok, maybe there is some rhyme and reason to why I would need a massage in that area”. She said she had been given some explanation about a connection between those muscle groups and the need to massage more than just the initial area of symptoms. J denied that she had offered to remove her underwear to make it easier to get to the groin area, but agreed that she had moved her underwear to the side because the oil was getting everywhere.
She denied having taken her underpants off when the accused’s fingers had been inserted into her vagina, and denied that the accused had asked her whether it was “ok to go inside and do an examination”. She repeated, under cross-examination, that all the accused had said was “can I touch you?” and as he was touching her all over that question “didn’t scream alarm bells”. J denied that the accused had asked whether she was okay after he had inserted his fingers into her vagina and was moving his finger or fingers around. She repeated that the accused had only asked “is everything ok” after she had gotten up from the massage table.
She denied that the accused had told her that he needed to finish off with a gentle massage, and denied that he had given her a massage of the thighs before she got dressed. She denied that it was possible that the accused had said “he’d finish off for the day”. She was adamant and said “no. It was definitely ‘can I come home with you and I can finish you off?’”
J denied speaking to the accused about testing the strength of her core muscles, and denied any discussion about how the strength or weakness of the core muscles could have an influence upon back pain, or mobility of the back and spine.
The complainant was cross-examined about her conversation with her housemate following the incident, and her evidence-in-chief as to what she had said to her housemate was re-put to her. She said:[9]
Yes, I – like I said before, I’m not absolutely – I’m – it only dawned on me on the drive home the reality of what had just happened. It was so far beyond anything I could have ever imagined, and I certainly would never have expected it to have happened in a physio sort of setting, a place of trust and – yeah. So I’m not – as far as what Ms G would have a clearer memory of what I said to her than I necessarily would at this stage.
Ms G
[9] T 37, 14.
J’s housemate, Ms G, gave evidence that was generally consistent with that of the complainant. She said that J had arrived at home at about 6pm. Ms G knew that the complainant had a physiotherapy appointment that day. Ms G said that she noted the scent of the oil and commented about that. J said “it’s going to have bad connotations for me from now on”. Ms G asked her why, and the complainant responded that “something had happened at the physio.”[10] She described J as being very tired but also very agitated, and that she didn’t seem as settled as she normally did.
[10] T 41, 8.
Ms G asked her what had happened and she said that the complainant very quietly explained that the physio had “done something to her that was inappropriate, had been touching her inappropriately.”[11] Ms G inquired further, and the complainant pointed to her back and to her groin and then remained silent for a period before saying that “the physiotherapist had put his fingers inside her”[12] and was pointing toward her vagina. Ms G said that J stated that when the physiotherapist was doing that he was saying “can I touch you? Can I touch you?” She said the complainant appeared very deflated and very quiet and took a long time to say it. Ms G confirmed that it was she that suggested to the complainant that the complainant should report the matter to police.
Mr R
[11] T 41, 22-24.
[12] T 41, 28-29.
Mr R, the accused’s employer, gave evidence. He confirmed that he had been treating the complainant on a regular basis for conditions relating to her upper spine and arm, and that there were some difficulties with the lower lumbar region relating to holiday work.
Mr R had employed the accused who had commenced working in July 2010. Mr R confirmed that, at the time of the incident, he was overseas. Upon learning of the complaint Mr R endeavoured to contact the accused but was unable to do so for two or three days, at which time they had a brief conversation.
Mr R returned to Australia in mid January 2011 and examined the treatment notes relating to the complainant’s appointment on 5 January 2011. He said that the notes “were clearly deficient of any detail of significance”. He asked the accused to furnish an addendum to explain the notes and clarify what had happened. Two or three days later the accused emailed, as an attachment, an addendum to the case notes, and an incident report, which were ultimately received into evidence by consent.[13]
[13] Exhibits P3 & P4.
Mr R interpreted the accused’s notes of the attendance on 5 January 2011. They recorded the subjective assessment that the patient “feels sore”. The objective assessment was recorded as “ISQ” which meant no change from the prior examination. The treatment was recorded as “action as previous”, which Mr R suggested indicated a repeat of the treatment administered on 22 December 2010.
The notes for 5 January 2011 also contained an entry, “Results for Life presentation.” That referred to a presentation made as a matter of practice, by therapists in the clinic, to clients, outlining the way in which assistance could be provided to clients to maintain their health, including tailoring exercise, massage, and home exercise programmes. Mr R described the Results for Life presentation as a service provided without charge, and as part of the ongoing management of a client’s condition. It is common ground that that presentation was not made by the accused to the complainant at the time of the second appointment.
Ms K
Ms K was the receptionist for the practice. She said that J was the last patient for that day. She said she did not notice the complainant to have presented in an abnormal manner following the consultation. Ms K said that once the complainant had paid and left the practice, the accused came to the reception area at about 6pm and said that he was staying a little longer to do work that Mr R had given him. Ms K left at about the same time as the accused, namely at about 7pm.
Detective Rowe
The investigating officer, Detective Sergeant Rowe, interviewed the accused. I received the video footage of the interview and a transcript.
Mr Heynen
Mr Michael Heynen, a specialist sports physiotherapist, gave expert evidence. I bear in mind the way in which expert evidence may be used.
Mr Heynen is a qualified physiotherapist and a Fellow of the Australian College of Physiotherapy. He delivers an annual lecture on the assessment and management of athletic groin pain at the Sports Physiotherapy Australia course in Canberra, and is an adjunct lecturer in the School of Physiotherapy (Masters of Sports Physiotherapy Course) at the University of South Australia.
Mr Heynen had access to the clinical treatment notes of the complainant, the supplementary notes prepared by the accused, and the incident report prepared by the accused. In his opinion, taking into account all of the material before him, and the transcript of the interview between police and the accused, there was no justification for the accused to massage J’s groin area.
Mr Heynen accepted that there was a theoretical basis upon which muscle strength and flexibility around the pelvis might relate to pain in the lumbar spine. He said that standard clinical practice required an examination of the muscles and joints around the hip and pelvic region and an assessment of the major motion of the hip joints. He said that such an approach would include physical palpation of the muscles of the lumbar spine and pelvic region.
Mr Heynen, said that it was not a recognised physiotherapy technique to perform an intravaginal approach to assess symptoms of hip muscle tightness or back pain. He had conducted research and could not find any reference identifying or recommending an intravaginal approach as a recognised physiotherapy assessment procedure or treatment technique.
Mr Heynen said that it would be very difficult to palpate the inguinal ligament by inserting a finger in a patient’s vagina, and did not think it could be done. Further, the inguinal ligament could easily be palpated superficially, and standard clinical practice would be to palpate superficially, that is, through the skin from the outside.
Mr Heynen concluded that there was no justification, having regard to the complainant’s symptoms and condition, for either a massage in the groin area, or an intravaginal approach to treat muscles in the groin area.
He said that the most common reason to palpate the pelvic floor would be to assess urinary incontinence. Specialists in womens’ health physiotherapy could perform such a technique where a patient presented with an ongoing condition of incontinence. The pelvic floor could also be assessed using real time ultrasound. Although he conceded it was not his area of practice, he suspected that “womens’ health practitioners routinely would use real-time ultrasound, and then, with I suspect, consent and discussion, would proceed with manual assessment of the pelvic floor.”[14]
[14] T 81, 5-8.
Mr Heynen was asked to describe the standard procedure for obtaining informed consent, particularly in relation to unusual or high risk treatment. He said that the process involved providing a patient with information about the procedure; offering them alternatives; advising as to the relative costs and benefit; allowing a discussion about those factors, and providing an opportunity to reflect prior to providing consent. He considered that an intravaginal approach, no matter what the reason, was an invasive technique. He considered that it would be necessary to obtain written consent prior to using such a technique, were it in fact warranted.
He also said that massage oil was not an appropriate lubricant to use for an intravaginal assessment and normally a sterile water-based lubricant would be used.
In cross-examination Mr Heynen conceded that he had not conducted any research into the contents of the physiotherapy degree in India as to whether intravaginal examinations were taught as an investigative or treatment technique in India.
Mr Heynen conceded that it was theoretically possible an intravaginal examination could be used for assessment for musculoskeletal problems related to pelvic floor dysfunction. He said however, that there were a range of alternatives and options available and he had never heard of any of his peer group performing such an assessment.
Other Evidence
Statements of Mr Mark Jones, Programme Director of the University of South Australia Physiotherapy post graduate programme, and Mr Gary Goodwin, a police officer, were read, and a number of facts agreed.
The Accused
The accused, Mr Devadas, is now 35 years old. He completed a bachelor of physiotherapy in India between 1994 and 1998. He worked as a physiotherapist for two years in India, following his graduation in MIOT hospitals in Chennai. He then worked in the Christian Medical College and Hospital in the north of India before travelling to Australia in 2006.
He had not undertaken any particular training on pelvic floor muscle treatment and assessment during his training. He was asked in evidence-in-chief whether his studies included learning how to conduct internal examinations of women and said:[15]
We did the theory of it, but we did not do the practical. I have the syllabus which mentions that, the syllabus, but we did not do the practical side of it. We did not really have much of hands-on in any of the things, not as much as the Australian physiotherapists are trained, so that’s why I (was) coming to Australia to learn more hands-on technique.
[15] T 92, 14-20.
Mr Devadas said that he learned about pelvic floor muscle weakness and how that can contribute to pain, instability and poor endurance in the pelvis, the hip and the back, and had learned about urinary incontinence.
The accused had apparently completed a Master’s degree in physiotherapy in Sydney and then travelled to South Australia to undertake further study in musculoskeletal and sports injuries. His employment with Mr R was the first employment he had obtained in Australia.
He said that just before Christmas 2010 the complainant had an appointment with him. She was complaining of neck pain, back pain, and pain in her elbows. He said that she had complained of soreness in her quadriceps and hamstrings. He was asked what areas he had treated during the first appointment and said:[16]
I think I did treat her neck, probably her back, maybe some stretches to the hip joint or something. I have to have a look at the notes to tell you but I think this is basically her neck and back.
[16] T 96, 27-30.
Mr Devadas said that he treated the complainant with mobilisation for the joints, and massage for the muscles.
On the second appointment, that to which the charge relates, Mr Devadas said that he concentrated on massaging the complainant’s neck, and the upper back, but had to move down to the lower back because the complainant was complaining of soreness in the lower back. He said that J was complaining of pain in the sacral area, and in the gluteal muscles, and of soreness in her legs due to prolonged standing. He told her that he could give her a massage for the quadriceps and hamstrings.
Mr Devadas said that he had massaged J’s groin area because of a complaint of soreness in her quadriceps. He said he also examined her hip joint, palpated her, and as she said that was sore, he massaged that area.
When asked by his counsel whether massaging the hips, lower back and legs usually included the groin area, he said “not necessarily but it depends on the symptom and what she tenses.”[17] When asked why he needed to palpate the groin on this occasion he said that was “basically because she was complaining of pain there as well so I was just giving her massage.”[18] He said that while he was doing so he explained how the muscle groups worked together, and that if there was a problem with one section, or one group of muscles, that might affect the other groups. He said he explained to the complainant that “everything is linked, especially the lower back, the femoris muscle, the quadriceps and the glutes.”[19]
[17] T 99, 6-7.
[18] T 99, 35-36.
[19] T 100, 10-11.
Mr Devadas was asked by his counsel “at some point did you think it was necessary to do an internal vaginal examination” and replied:[20]
As I was palpating her groin I thought of the pelvic floor muscle so again I said one part or one section of muscle if it is weak that might put stress on the other sections as well. So I just thought ‘let me just see if there is any problem or any tightness of the surrounding structures or ligaments or soft tissues’. So I thought because she is in that position I will ask her, and I quickly ask her and just do that.
[20] T 100, 27.
And when asked again said:[21]
As I was telling you before, it was mainly because I wanted to see if there was any tightness or stiffness in the surrounding areas, structures, and also the pelvic floor. I did not think of anything else that might help her, help to find out about the pelvic floor muscle, yes, so that’s why I thought I will do the internal vaginal procedure.
[21] T 101, 13-19.
He said that while he was massaging the groin area the complainant did not have either shorts or underpants on. Mr Devadas said that he clearly remembered that she had removed her underclothing. He was asked at what stage she had removed her underclothing and said:[22]
That was when I was, I think, doing the groin massage and it was getting sore to the groin and so I was telling her about that and she said she was happy to take it off, and she did take it off. Yes, and after that I did the procedure.
[22] T 101, 34-38.
Mr Devadas said that while he was conducting the procedure, ie the internal examination, he kept asking whether it was all right, whether she was feeling any problems or was feeling uncomfortable. He said that the complainant said initially that she was all right, but then said that it was getting sore. He remembered her saying that she “didn’t think it would be this sore.”[23]
[23] T 102, 9-10.
Mr Devadas said that after a few seconds she said “sorry, stop it” or something like that, so he stopped. He said that after that he moved away and asked her “do you want me to complete it off, finish it off, the massage?” and she said “all right”[24] and he gave her what he called effleurage, which he described as a gentle stroking on the hamstrings, that he performed for only a minute or so.
[24] T 102, 17-18.
Mr Devadas said that after that J got up and he asked “are you all right?” She said “yes”. He said that he then gave her her underpants and she went to get her shorts and her top while he was sitting at the computer.
Mr Devadas denied locking the door to the room at any time.
He was asked by his counsel whether he had conducted internal examinations on any other patients previously. He replied:[25]
Yes, I did but that was a long (time) back. I remember saying in the interview that I said around 2003 or 2004 but this was long back when I – after finishing the interview with the police and I went back I was thinking about it was even before that, but yes. I didn’t do it myself but I was there as an observant, observing it.
[25] T 101, 5-10.

Mr Devadas said that he did not have the view that the complainant was attracted to him, nor that she was sexually responding to him, and said that he did not have anything sexual in mind at all. He denied that he found the complainant sexually attractive. He said:[26]
Even though I didn’t plan it, it was spontaneous, that is why I did it. I did not plan it, I had no wrong intention to do it. I just did it professionally. I accept I should have done it much more with proper documentation, consultation and should have explained to her, I definitely agree with that, and I am sorry.
[26] T 136, 1-6.
Findings
I accept the complainant as a witness of truth. I was impressed with her evidence. She gave a measured account of events, and, in my view, was candid and understated. She made appropriate concessions in cross-examination, and did not engage in speculation or reconstruction. Her evidence as to the events which form the basis of the charge was clear and unequivocal. I make the observation that I would accept J as a witness of truth, even were I to completely disregard the evidence of complaint, and the evidence as to her distress.
Counsel for the accused submitted that I could accept, at least as a reasonable possibility, that the accused’s action in inserting his finger into J’s vagina, was based on his belief that one of the possible causes of her pain was an instability or dysfunction of the pelvic floor. Counsel pointed to the fact that the incident report, later prepared by the accused, refers to him checking the integrity of the pubic symphysis as to any malalignment. I reject the accused’s evidence as to his motivation being related to either a therapeutic or a diagnostic procedure.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the courtroom. However, the accused’s explanations were unconvincing, as was his manner. In my view he completely lacked credibility.
I do not accept his denials of the specific matters alleged against him, including the locking of the door, or the conversation he had with the complainant after she had got up from the massage table.
I regard the accused’s explanations in the supplementary notes, and the incident report, as merely attempts to retrospectively justify his behaviour.
I reject the accused’s explanation for inserting his finger into the complainant’s vagina. I do not accept that it was part of any treatment or assessment. For example, he told police, when interviewed, that the technique was to enable him to examine the complainant’s inguinal muscles. It was only when completing the report requested by his employer, days later, that the suggestion of an examination of the pelvic floor muscles emerged.
His statement to police when interviewed, that he had performed such procedures previously in India in 2003 or 2004, were admitted by him in evidence, to be false, or at least incorrect. I regard that as impacting upon his credibility.
I reject the submission that the accused acted as he did following a misunderstanding as to the complainant’s consent to an internal examination for diagnostic purposes. The penetration of the complainant’s vagina by the accused was an action of such significance that the accused could hardly have believed that he had permission to perform such an act based on the discussion as deposed to by the complainant, and even on the discussion deposed to by the accused.
I find that an internal examination was not a legitimate diagnostic technique, in respect of the condition for which the complainant sought treatment, and that the accused knew that.
On the accused’s own case, and despite his notes to the contrary, he did not advise the complainant that he intended to insert his finger into her vagina. He did not don a glove. He did not use lubricant, other than the scented massage oil which he had been using to massage the complainant’s back.
Counsel suggested that I should accept the evidence of the accused that he had no sexual interest or motivation in inserting his finger into J’s vagina. I reject the accused’s evidence in that regard. I do so, in part, given my finding that the accused locked the door prior to the session commencing, and my finding that he made the comments to the complainant, that she deposed to, once she had arisen from the massage table.
As I have said, disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of the offence have been proved, on the evidence, beyond reasonable doubt.
As I have said, I accept, beyond reasonable doubt, the complainant’s account of events, including as to the conversation between her and the accused.
Verdict
It is common ground that the first element of the offence of rape has been established, namely that the accused penetrated the complainant’s vagina with his finger or fingers.
The second element requires that the intercourse occurred without the complainant’s consent. I am satisfied, beyond reasonable doubt that the complainant did not expect the accused to penetrate her vagina with his finger, did not realise he was about to do so, and did not consent to him doing so.
I find it established, beyond reasonable doubt, that the sexual penetration of the complainant was not performed for the purpose of medical diagnosis, investigation or treatment. Accordingly, even had the complainant given consent to the penetration, such consent would not constitute a “free and voluntary agreement to engage in a sexual activity with that person at that time”, within the meaning of s 46(3)(h) CLCA, as the complainant would have been mistaken about the nature of the activity.[27]
[27] Section 46(3)(h) CLCA - A person does not freely and voluntarily agree to engage in sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment.
As to the third element, the onus is on the prosecution to prove that the accused either knew that the complainant was not consenting, or was recklessly indifferent as to the lack of consent.
I find, beyond reasonable doubt, that there was no basis upon which the accused could have believed that the complainant had consented to him inserting his finger into her vagina. He was, at the least, reckless as to the fact that she was not consenting, within the meaning of s 47 CLCA.
It follows that I find each of the three elements of the offence proved beyond reasonable doubt, and find the accused guilty of the charge of rape.