Medium Neutral Citation: R v El-Kheir [2018] NSWDC 245
Hearing dates: 26 - 27 July 2018; 30 - 31 July 2018; 1- 2 August 2018; 6 - 9 August 2018;13 -16 August 2018; 20 - 23 August 2018; 27 August 2018; 29 August 2018.
Decision date: 05 September 2018
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
On counts 1 – 7 on the indictment the accused is found not guilty on the grounds of mental illness. Found not guilty on count 8

Catchwords: CRIMINAL LAW – Judgment – Judge alone trial – Sexual intercourse without consent – Indecent assault – Medical practitioner commits offences on female patients – Consent at issue for one complainant – One complainant wearing listening device when touched in sexual manner – Recent history of bizarre behaviour – Voluntariness – Automatism – Hypoglycaemia – Hyperglycaemia – Mental illness – Bipolar affective disorder – Mental illness exacerbated by fluctuating blood sugar levels – Ability to reason about wrongfulness of conduct.
Legislation Cited: Crimes Act
Evidence Act
Mental Health Act
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Bratty v Attorney – General (Northern Ireland) [1963] AC 386
Goodridge v R [2014] NSWCCA 37
Hill v Baxter [1958] 1QB 277
R v Bingham (Court of Appeal, Criminal Division 8 February 1991).
R v Cha [2012] NSWCCA 142
R v Gillett [2005] NSWDC 20
R v Gourlay [2015] NSWSC 67
R v Hall (1988) 36 A Crim R 368
R v Hennessy [1989] 2 All ER 9
R v Hennessy [1989] 1 WLR 287
R v Hilder (1997) 97 A Crim R 70
R v Hilder CCA(NSW) 10 October 1997
R v Parks [1992] 2 SCR 871
R v Quick [1973] QB 910
R v Youssef (1990) 50 A Crim R 1
Sodeman v The King [1936] 55 CLR 192
Taylor v R (1978) 22 ALR 599
The Queen v Falconer (1990) 171 CLR 30
Vallance v The Queen (1961) 108 CLR 56
Texts Cited: Insulin resistance and outcome in bipolar disorder by Calkin et al, The British Journal of Psychiatry (2015) 206
Category: Principal judgment
Parties: The Crown
Tarek Abou El-Kheir
Representation:
Counsel:
Ms K Jeffreys – Crown
Mr D Dalton SC – Offender
Ms A Cook - Offender
Solicitors:
Director of Public Prosecutions – Crown
Younes Espiner - Accused

File Number(s): 2014/131948 - 2014/140418 - 2014/142727 - 2014/142741 -2014/148576 - 2014/287592
Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants.

Table of Contents

Introduction - paragraph 1
The evidence concerning each count - paragraph 9
Counts 1 to 3 – J Y - paragraph 15
Count 4 - L E - paragraph 30
Count 5 – C D - paragraph 41
Count 6 – C S - paragraph 52
Count 7 – E M - paragraph 72
Count 8 – R G - paragraph 86

General principles of law - paragraph 110
Right to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v El-Kheir

Details

AGLC: R v El-Kheir [2018] NSWDC 245
Case: [2018] NSWDC 245
Decision Date: 05 September 2018

CaseChat Overview and Summary

In the matter of R v El-Kheir, the accused, a medical practitioner, faced allegations of engaging in sexual acts without consent with several female patients. The case was heard before a judge alone in the Supreme Court of Queensland, with the accused pleading not guilty to charges of sexual intercourse without consent and indecent assault. The crux of the dispute centred around the voluntariness of the complainants' consent and the accused's state of mind during the alleged offences.

The legal issues for the court to determine included the voluntariness of consent in cases where the accused and complainant had a doctor-patient relationship, the effect of the accused's mental state on the ability to consent, and the accused's defence of automatism due to fluctuating blood sugar levels. The court was required to consider whether the accused's mental illness, exacerbated by hyperglycaemia and hypoglycaemia, impaired his ability to reason about the wrongfulness of his conduct.

The court examined the accused's mental health records and testimony from medical experts, which established that the accused suffered from bipolar affective disorder. The court found that the accused's mental illness, coupled with his fluctuating blood sugar levels, significantly impaired his ability to reason about the wrongfulness of his conduct at the time of the alleged offences. Given the accused's history of bizarre behaviour and the evidence presented, the court determined that the accused was not criminally responsible for the offences due to his mental illness. The court acquitted the accused on counts 1 to 7 of the indictment, finding him not guilty on the grounds of mental illness. On count 8, the court found the accused not guilty.

Orders

Orders of the court

On counts 1 – 7 on the indictment the accused is found not guilty on the grounds of mental illness. Found not guilty on count 8

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v El-Kheir [2018] NSWDC 245

Most Recent Citation

TA v The Queen [2019] NSWCCA 145

Cases citing this decision · 1 of 1 shown

Ta v R
[2019] NSWCCA 145 Para 6

…f his mental illness, the appellant was not able to reason with a moderate degree of composure at the time of the offending conduct: R v El-Kheir [2018] NSWDC 245.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Gourlay
[2015] NSWSC 67 Para 290

…The test was set down in 1843, and has remain unchanged. As Button J explained it in R v Gourlay [2015] NSWSC 67 at [50] and [51]:…
Goodridge v R
[2014] NSWCCA 37 Para 318

…as been on occasions (see R v Hall (1988) 36 A Crim R 368, Taylor v R (1978) 22 ALR 599 at 608, R v Hilder CCA(NSW) 10 October 1997 and Goodridge v R [2014] NSWCCA 37). I should not reject the only expert opinion offered unless it was contradicted by other persuasive evidence.…
Cha v The Queen
[2012] NSWCCA 142 Para 196

…As explained in the question trail for the sexual intercourse counts both anatomy and authority ( R v Cha [2012] NSWCCA 142) are consistent such that the finding that the accused touch the clitoris of a complainant amounts to a finding that the complainant’s genitals were penetrated by the accused’s finger.…
R v Gillett
[2005] NSWDC 20

…] 1QB 277 R v Bingham (Court of Appeal, Criminal Division 8 February 1991). R v Cha [2012] NSWCCA 142 R v Gillett [2005] NSWDC 20 R v Gourlay [2015] NSWSC 67 R v Hall (1988) 36 A Crim R 368 R v Hennessy [1989] 2 All ER 9 R v Hennessy [1989] 1 WLR 287 R v Hilder (1997) 97 A Crim R 70 R v Hilder CCA(NSW) 10 October…
R v Falconer
[1990] HCA 49

…ussef (1990) 50 A Crim R 1 Sodeman v The King [1936] 55 CLR 192 Taylor v R (1978) 22 ALR 599 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1961) 108 CLR 56 Texts Cited: Insulin resistance and outcome in bipolar disorder by Calkin et al, The British Journal of Psychiatry (2015) 206 Category: Principal…
Vallance v The Queen
[1961] HCA 42

…e King [1936] 55 CLR 192 Taylor v R (1978) 22 ALR 599 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1961) 108 CLR 56 Texts Cited: Insulin resistance and outcome in bipolar disorder by Calkin et al, The British Journal of Psychiatry (2015) 206 Category: Principal judgment Parties: The Crown Tarek Abou…
Sodeman v the King
[1936] HCA 75 Para 302

…n the grounds of mental illness. That conclusion is based on the decisions of the High Court, and then the Privy Council in Sodeman v The King [1936] 55 CLR 192. The correct statement of the law is perhaps most easily to be found in the judgment of Viscount Hailsham L.C. who delivered the judgment of their Lo…
R v Porter
[1933] HCA 1

…In a well-known and oft-quoted summing up in The King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J (as his Honour then was) said with regard to the latter portion of the defence : “ If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and comp…
(1843) 8 ER 718
(1843) 8 ER 718 Para 722

…(Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in M’Naghten's Case (1843) 8 ER 718 at [722]. The defence is established if it is more probable than not that: “at the time of the committing of the act, the party accused was labouring u…
[1989] 1 WLR 287
[1989] 1 WLR 287

…NSWDC 20 R v Gourlay [2015] NSWSC 67 R v Hall (1988) 36 A Crim R 368 R v Hennessy [1989] 2 All ER 9 R v Hennessy [1989] 1 WLR 287 R v Hilder (1997) 97 A Crim R 70 R v Hilder CCA(NSW) 10 October 1997 R v Parks [1992] 2 SCR 871 R v Quick [1973] QB 910 R v Youssef (1990) 50 A Crim R 1 Sodeman v The King [1936] 55 CLR…
[1963] AC 386
[1963] AC 386

…alth Act Mental Health (Forensic Provisions) Act 1990 Cases Cited: Bratty v Attorney – General (Northern Ireland) [1963] AC 386 Goodridge v R [2014] NSWCCA 37 Hill v Baxter [1958] 1QB 277 R v Bingham (Court of Appeal, Criminal Division 8 February 1991). R v Cha [2012] NSWCCA 142 R v Gillett [2005] NSWDC 20 R v G…
[1973] QB 910
[1973] QB 910

…WLR 287 R v Hilder (1997) 97 A Crim R 70 R v Hilder CCA(NSW) 10 October 1997 R v Parks [1992] 2 SCR 871 R v Quick [1973] QB 910 R v Youssef (1990) 50 A Crim R 1 Sodeman v The King [1936] 55 CLR 192 Taylor v R (1978) 22 ALR 599 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1961) 108 CLR 56 Texts Ci…
[1992] 2 SCR 871
[1992] 2 SCR 871

…ER 9 R v Hennessy [1989] 1 WLR 287 R v Hilder (1997) 97 A Crim R 70 R v Hilder CCA(NSW) 10 October 1997 R v Parks [1992] 2 SCR 871 R v Quick [1973] QB 910 R v Youssef (1990) 50 A Crim R 1 Sodeman v The King [1936] 55 CLR 192 Taylor v R (1978) 22 ALR 599 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1…

Legislation cited in this decision · 1

Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention

Medium Neutral Citation:	R v El-Kheir [2018] NSWDC 245
Hearing dates:	26 - 27 July 2018; 30 - 31 July 2018; 1- 2 August 2018; 6 - 9 August 2018;13 -16 August 2018; 20 - 23 August 2018; 27 August 2018; 29 August 2018.
Decision date:	05 September 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	On counts 1 – 7 on the indictment the accused is found not guilty on the grounds of mental illness. Found not guilty on count 8
Catchwords:	CRIMINAL LAW – Judgment – Judge alone trial – Sexual intercourse without consent – Indecent assault – Medical practitioner commits offences on female patients – Consent at issue for one complainant – One complainant wearing listening device when touched in sexual manner – Recent history of bizarre behaviour – Voluntariness – Automatism – Hypoglycaemia – Hyperglycaemia – Mental illness – Bipolar affective disorder – Mental illness exacerbated by fluctuating blood sugar levels – Ability to reason about wrongfulness of conduct.
Legislation Cited:	Crimes Act Evidence Act Mental Health Act Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Bratty v Attorney – General (Northern Ireland) [1963] AC 386 Goodridge v R [2014] NSWCCA 37 Hill v Baxter [1958] 1QB 277 R v Bingham (Court of Appeal, Criminal Division 8 February 1991). R v Cha [2012] NSWCCA 142 R v Gillett [2005] NSWDC 20 R v Gourlay [2015] NSWSC 67 R v Hall (1988) 36 A Crim R 368 R v Hennessy [1989] 2 All ER 9 R v Hennessy [1989] 1 WLR 287 R v Hilder (1997) 97 A Crim R 70 R v Hilder CCA(NSW) 10 October 1997 R v Parks [1992] 2 SCR 871 R v Quick [1973] QB 910 R v Youssef (1990) 50 A Crim R 1 Sodeman v The King [1936] 55 CLR 192 Taylor v R (1978) 22 ALR 599 The Queen v Falconer (1990) 171 CLR 30 Vallance v The Queen (1961) 108 CLR 56
Texts Cited:	Insulin resistance and outcome in bipolar disorder by Calkin et al, The British Journal of Psychiatry (2015) 206
Category:	Principal judgment
Parties:	The Crown Tarek Abou El-Kheir
Representation:	Counsel: Ms K Jeffreys – Crown Mr D Dalton SC – Offender Ms A Cook - Offender Solicitors: Director of Public Prosecutions – Crown Younes Espiner - Accused
File Number(s):	2014/131948 - 2014/140418 - 2014/142727 - 2014/142741 -2014/148576 - 2014/287592
Publication restriction:	There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants.