R v GAT

[2024] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v GAT [2024] NSWCCA 32

Hearing dates:

27 November 2023

Decision date:

08 March 2024

Before:

Davies J at [1];
Button J at [2]
Weinstein J at [121]

Decision:

(1)   Appeal upheld.

(2)   Verdicts of acquittal on all counts quashed.

(3)   New trial ordered on all counts.

(4)   The matter is listed before the Criminal List Judge of the District Court on 22 March 2024 at 9:30 AM.

Catchwords:

CRIME – appeals – Crown appeal against directed verdicts of acquittal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) – 40 counts of aggravated sexual offences – where respondent was employed as a gynaecologist and obstetrician – 19 complainants – respondent’s case at trial that the physical acts had either been performed for a proper medical purpose, or had not occurred at all – verdict of not guilty directed – trial judge found Crown had not adduced any evidence the complaints were not consenting, or that the respondent had possessed the requisite mental element to be charged with any sexual offence – appeal involved four proposed questions of law alone – evidence of complainants’ lack of consent readily inferred –evidence that the respondent at least foresaw the possibility that each complainant was not consenting available – directed verdicts erroneous – appeal allowed – verdicts of not guilty quashed

CRIME – appeals – Crown appeal against acquittals – new trial – whether new trial appropriate – where new trial would be the third – where respondent submits new trial would be unduly oppressive – not in the interests of justice to allow acquittals to stand – new trials ordered

Legislation Cited:

Crimes Act 1900 (NSW) 61H, 61I, 61L, 61R

Crimes (Appeal and Review) Act 2001 (NSW) s 107, 111

Cases Cited:

Browne v Dunn (1893) 6 R 67

Davern v Messel (1984) 155 CLR 21; [1984] HCA 34

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

DPP (NSW) v Taylor [2020] NSWCCA 138

Harkin v R (1989) 38 A Crim R 296

Hofer v The Queen (2021) 271 CLR 351; [2021] HCA 36

Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74

R v BK [2022] NSWCCA 51

R v Case (1850) 169 ER 381

R v Costi (1987) 48 SASR 269

R v Court [1989] AC 28; [1988] 2 All ER 221

R v DB [2022] NSWCCA 87

R v Dee [1884] 14 LR lr 468

R v Hemsley (1988) 36 A Crim R 334

R v Henning (Court of Criminal Appeal, 11 May 1990, unreported)

R v JMR (1991) 57 A Crim R 39

R v Kitchener (1993) 29 NSWLR 696

R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256

R v Toohey [2019] NSWCCA 182

R v Williams [1923] 1 KB 340; [1922] All ER Rep 433

Regina v JS [2007] NSWCCA 272

Regina v Tabassum [2002] 2 Cr App Rep 328

Regina v XHR [2012] NSWCCA 247

Toohey v R [2020] NSWCCA 166

Trevor Essex v R [2013] NSWCCA 11

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Applicant)
GAT (Respondent)

Representation:

Counsel:
G Wright SC (Applicant)
P Strickland SC with G Huxley (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2016/327461; 2017/228556

Publication restriction:

Nil; pseudonyms adopted for names of the respondent and complainants.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 July 2023

Before:

Wass SC DCJ

File Number(s):

2016/327461; 2017/228556

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 May 2023, the respondent GAT (a pseudonym) was arraigned in the District Court of NSW on a 40 count indictment alleging aggravated sexual offences committed against 19 complainants. At the time of the alleged offending, the respondent was a practising obstetrician and gynaecologist. It was the Crown case that the respondent had used his position as a medical professional opportunistically, and without consent, to sexually penetrate and/or indecently assault the 19 female patients that visited him to receive medical procedures and examinations. The respondent appeared unrepresented at trial, and presented his defence case on the basis that the physical acts had either been performed for a proper medical purpose, or that they had not occurred at all. The majority of the complainants were not called by the Crown to give evidence in Court; oral evidence was received by way of recordings taken during a discontinued trial against the same respondent in 2021.

Following the closure of the Crown case and the respondent giving evidence, the learned trial judge invited submissions from both parties as to whether the Crown had presented any case to answer, having regard to her Honour’s view that the Crown failed to adduce evidence from any complainant as to whether she would not have consented to the physical acts committed by the respondent had she known he was assertedly seeking sexual gratification. On 7 July 2023, the trial judge indicated that she would direct the jury to return verdicts of not guilty on all counts. Three days later, a 55-page judgment was delivered, setting out her Honour’s reasons for the directed verdicts of acquittal and the decision not to allow the Crown to re-open its case and further question the complainants. It was stated that there was no evidence of lack of consent on the part of any complainant. Separately, the Crown had failed to explicitly put to the respondent that he had possessed a necessary mental element for any of the alleged offences.

The jury subsequently delivered verdicts of not guilty to each count.

The Crown sought leave to appeal against each of the directed verdicts, pursuant to s 107 Crimes (Appeal and Review) Act 2001 (NSW). Four grounds of appeal were relied on, each said to be based on a proposed question of law alone. Grounds one and two argued that the trial judge erred by directing verdicts of acquittal for the alleged offences on the basis that there was no evidence that the complainant had not consented to the sexual intercourse which constituted the offence in each case. Grounds three and four alleged that the trial judge erred in directing acquittals on the basis that there was no evidence that the accused knew that the complainants did not consent.

The Court held, allowing the appeal, quashing all verdicts of acquittal, and ordering new trials on all counts (Button J, with Davies and Weinstein JJ agreeing):

As to grounds one and two:

1. It is trite law that, for a verdict of acquittal to be directed, a trial judge must come to the view that there is no evidence whatsoever of an essential element of the offence. The question in this case, therefore, was whether there was any evidence whatsoever that the complainants were not consenting to the alleged sexual offending: [49]-[52].

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, referred to.

2. The absence of direct evidence from each complainant about their state of mind at the time of the alleged offence is not determinative: [53].

3. Evidence as to each complainant’s lack of consent could be readily inferred. Regarding counts in which proper medical purpose was in issue, there was some evidence on each count that each complainant was mistaken in the belief that the penetration or touching was for medical or hygienic purposes and was thereby giving superficial consent only. Regarding counts in which the issue of proper medical purpose did not arise, there was some evidence of lack of consent on the part of each complainant: [55]-[63].

4. It was an error for the trial judge to find that explicit evidence was required from each complainant that, if they had known that the physical act was not for a medical purpose, they would not have consented to it: [65].

5. It was an error for verdicts of acquittal to have been directed on this basis: [69].

As to grounds three and four:

6. Following on from the concession made by senior counsel for the respondent that the approach taken by her Honour was erroneous, it was found that there was some evidence that the respondent at least foresaw the possibility that each complainant was not consenting to his alleged actions. Regarding counts in which the issue of proper medical purpose had arisen, there was evidence that the respondent knew or at the least foresaw the possibility that no complainant was consenting to anything other than a procedure undertaken for medical purposes. Regarding counts in which the issue of proper medical purpose did not arise, there was evidence that the respondent foresaw the possibility that a complainant who was seeing him as a patient in a professional medical context was not consenting to such things as being kissed on the lips: [72]-[75].

7. In the circumstances of the trial, it was clear that the Crown case was, from the beginning, that the respondent was aware that none of the complainants were giving true consent to any physical contact outside that made for a proper medical purpose. Any failing on the part of the Crown prosecutor could have been corrected in a moment, by the simple expedient of the respondent being briefly recalled: [76]-[78].

8. It was an error for verdicts of acquittal to have been directed on this basis as well: [80].

As to whether the errors fall within the parameters of s 107:

9. The statutory requirement for the grounds to involve “a question of law alone” self-evidently rules out an appeal based on question of mixed fact and law. It is more restrictive than the simpler formulation of “a question of law”, though the word “involves” is contrastingly broader and more inclusive than other such prepositions: [82]-[87].

Regina v JS [2007] NSWCCA 272, applied.

10. The decision to direct a verdict of acquittal has two distinct phases: first, the correct identification of all of the elements of the offence in question, whether created by statute or common law; and second, the consideration of the evidence, and whether there is some evidence, however weak, in support of each element. The first is quintessentially a question of law alone. The second is a mixed question of law and fact: [92].

Regina v JS [2007] NSWCCA 272; R v DB [2022] NSWCCA 87 at [127]-[130] (Wilson J), considered.

11. In this appeal, grounds one and two were found to fall within the above taxonomy as involving a question of law alone.

12. The proposed grounds three and four involved a readily severable question of law alone about the purported legal consequences to a party of an asserted failure of that party to comply with a legal rule of practice: [96]-[97].

As to whether a new trial should be ordered:

13. Though submissions for the respondent resisting a new trial were said to have significant force, the fact that the issue of whether the Crown had proven each count beyond reasonable doubt should have been left to the jury overwhelmingly countervailed, in the circumstances of this case, any argument against quashing the acquittals: [103]-[118].

14. The interests of justice would not permit the legally erroneous acquittals to stand: [118].

JUDGMENT

1. DAVIES J: I agree with Button J for the reasons his Honour gives.

2. BUTTON J:

Background

Between 1 May and 11 July 2023, GAT (a pseudonym adopted due to the nature of these proceedings pursuant to s 111(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act); the respondent) stood trial before Judge Wass SC and a jury. The indictment contained 40 counts comprising sexual offences contrary to the Crimes Act 1900 (NSW), alleged to have been committed by the respondent against 19 different adult women. The first date in the indictment is 1 January 1993, and the last date is 1 July 2015. Some of the counts were based upon sexual intercourse without consent, and some of them upon indecent assault (now known as sexual touching). All of them were said to have been committed by the respondent while he was working as a gynaecologist and obstetrician in a regional centre of New South Wales. Each of the complainants alleged that an offence, or offences, had been committed when she had consulted the respondent in his professional rooms as his patient. Finally, all offences were alleged to have been committed when the complainant was under the authority of the respondent, arising from the doctor/patient relationship.

3. The forensic response to some counts was that the physical act alleged had been performed by the respondent, but that it had been performed for a proper medical purpose. I shall refer to that issue in the trial by the shorthand of “medical purpose”. To other counts, the response was that the physical act alleged had not occurred at all (Trial Transcript p 70(46); hereafter referred to as TT).

4. The Crown filed a tendency notice dated 26 April 2019. The tendency asserted to be demonstrated was “to have an intent to obtain and to obtain sexual gratification before, during and after the conduct of medical examinations or procedures”. Even so, the question of the admissibility of any of the alleged tendency evidence in support of any count was not decided before the trial concluded in the following way.

5. On 10 July 2023, the learned trial judge directed the jury to return verdicts of not guilty on all counts (TT p 1889(3)). The jury duly did so. That was not at the conclusion of the Crown case, but rather after the respondent had given evidence but before any closing addresses were delivered.

6. The verdicts were directed on two bases. The first was that there was no evidence that any complainant was not consenting to the penetration or touching alleged (see judgment on verdicts by direction and explanation to jury of those verdicts at TT p 1889(3)). That was in turn founded upon the proposition that it was incumbent upon the prosecution to lead evidence either: that each complainant was not consenting to the penetration or touching, from each complainant herself; or that if she had known that the penetration or touching had not been for a medical purpose, she would not have consented to it nevertheless, for some other reason, again from each complainant herself:

In my view nothing relieves the Crown from the obligation to lead evidence either that the complainants did not consent to the procedure knowing it was not a proper medical procedure or that they consented to it only because they believed that it was a proper medical procedure. No complainant gave evidence of either kind. Indeed, they were not asked.

It need not be again said that it is for the Crown to prove beyond reasonable doubt that the complainants did not consent to the physical acts; not that by implication of their consent to care that the obverse is true. Concessions about what complainants did consent to and an acceptance by the Crown of the complainants' consent to proper medical procedures or examinations without evidence as to what they did not consent to or what they consented to on some mistaken belief does not advance the Crown's argument.

…

In my view, it was necessary for the Crown to adduce evidence from each of the complainants on one of the two following matters;

1. If the complainant knew that the physical act was not for a proper medical purpose or not only for a proper medical purpose and, given the way the case was run, that it had a sexual purpose, that she did not consent to it, or;

2. If the complainant wrongly believed that the physical act was for a proper medical purpose, that her consent was based only on that belief, and otherwise she did not consent to the physical act.

(Emphasis added)

7. The second and entirely separate basis for the directed verdicts was that, during cross-examination of the respondent, the Crown had not explicitly put to him that he had possessed a necessary mental element for any offence. To use the words of the trial judge in the judgment:

The Crown did not put its case in respect of any particular complainant that he knew that they were not consenting or that he was reckless to that fact or had no reasonable belief to suppose that they were either because of his particular state of mind to obtain sexual gratification or what must have been his consideration of their responses and the situation.

8. The approach was that that asserted failure to comply with the rule in Browne v Dunn (1893) 6 R 67 meant that there was simply no evidence of the necessary mental element on the part of the respondent that could be left to the jury:

I find that in that taking place, there is no evidence as to the accused's state of mind on each occasion requiring a directed acquittal in each case, whatever else might be said about the complainants' evidence as to lack of consent. I further find, for the reasons that follow, that failure to put to the accused the element of the accused's knowledge of the complainants' lack of consent is in breach of the Crown's obligations under the rule in Browne v Dunn as it relates to an accused in a criminal trial…

9. Relatedly, the submission of the Crown that the asserted failure to comply with the rule could be very readily solved by having the respondent return to the witness box (he was, of course, present in court), and having the proposition about his state of mind put to him was rejected by her Honour.

10. The Crown has appealed against all of those directed verdicts, pursuant to s 107 of the Act. The appeal-creating provision is relevantly as follows:

107   Directed jury acquittals or acquittals in trials without juries

(1)  This section applies to the acquittal of a person—

(a)  by a jury at the direction of the trial Judge, or

…

(2)  The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.

(3)  An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.

(4)  The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.

(5)  The Court of Criminal Appeal may affirm or quash the acquittal appealed against.

(6)  If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 2013) order the detention or return to custody of the accused person in connection with the new trial.

(7)  If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so.

…

11. The grounds of appeal propounded by the Crown, and the questions upon which they were based (leaving aside an opposed amendment sought to be made by the Crown near the conclusion of the hearing in this Court) were as follows:

Ground one: The trial judge erred by directing verdicts of acquittal for alleged offences contrary to s 61J(1) Crimes Act 1900 on the basis that there was no evidence that the complainant had not consented to the sexual intercourse which constituted the offence in each case.

The above ground of appeal involves the following question of law alone:

1. In a prosecution for an offence against s 61J(1) Crimes Act 1900, in order to prove absence of consent to sexual intercourse, is it sufficient for the Crown to prove that the complainant had a mistaken belief that the physical act was for a medical purpose, or is the Crown required to prove that the complainant would not have consented to the sexual intercourse had the complainant not held that mistaken belief?

Ground two: The trial judge erred by directing verdicts of acquittal for alleged offences contrary to s 61M(1) Crimes Act 1900 on the basis that there was no evidence that the complainant had not consented to the physical act which constituted the offence in each case.

The above ground of appeal involves the following question of law alone:

2. In a prosecution for an offence against s 61M(1) Crimes Act 1900, in order to prove absence of consent to indecent assault, is it sufficient for the Crown to prove that the complainant had a mistaken belief that the physical act was for a medical purpose, or is the Crown required to prove that the complainant would not have consented to the physical act had the complainant not held that mistaken belief?

Ground three: The trial judge erred by directing verdicts of acquittal for alleged offences contrary to s 61J(1) on the basis that there was no evidence that the accused knew that the complainant did not consent in each case.

The above ground of appeal involves the following question of law alone:

3. Whether it is open to a trial judge to direct a verdict of acquittal for a charge alleging an offence against s 61J(1) of the Crimes Act on the basis that the Crown Prosecutor has not put to the accused in cross-examination on the particular charge that (a) he had an intention to obtain sexual gratification and/or (b) that he knew that the complainant was not consenting to sexual intercourse.

Ground four: The trial judge erred by directing verdicts of acquittal for alleged offences contrary to s 61M(1) on the basis that there was no evidence that the accused knew that the complainant did not consent in each case.

The above ground of appeal involves the following question of law alone:

4. Whether it is open to a trial judge to direct a verdict of acquittal for a charge alleging an offence against s 61M(1) of the Crimes Act on the basis that the Crown Prosecutor has not put to the accused in cross-examination on the particular charge that (a) he had an intention to obtain sexual gratification and/or (b) that he knew that the complainant was not consenting to indecent assault.

12. By way of further factual background, at trial the respondent represented himself, with cross-examination of the complainants being conducted by an intermediary. On appeal, in contrast, he was represented by senior and junior counsel, both of them expert in criminal law.

13. Finally on this topic, during the trial, a concession was made by the Crown that relieved the self-represented respondent from the necessity of putting to each and every complainant that they had consented to the carrying out of a medical procedure or examination (TT p 1409-1413). The precise concession was as follows:

CROWN PROSECUTOR: Members of the jury, the concession is it’s not the

Crown case in this trial that when a patient attended GAT that their consent or

their implied consent was not given. That consent was only given however for

an examination carried out for a proper medical purpose.

14. The structure of the rest of this judgment is as follows. First, I set out the conceptually difficult structural background of what needed to be proven beyond reasonable doubt by the Crown at trial, in particular regarding those counts in which the question of medical purpose had arisen. Identification of the legal elements of each offence, and, in some cases, modes of their proof, is a necessary context in which to discuss the next question.

15. Secondly, I discuss whether it was an error for the trial judge to direct verdicts of not guilty in this matter.

16. Thirdly, I discuss whether any such error falls within the appeal-creating provision. That includes as necessary a discussion of whether the Crown should be permitted to make a late, opposed amendment to the particulars of two of the grounds.

17. Finally, I discuss whether this Court should order a new trial of all or any counts, in accordance with s 107(6) of the Act.

Elements of counts

18. The question of what needed to be proven by the Crown with regard to each count is complicated by a number of factors.

19. The first is that the statutory regime to do with sexual offences to be found in Part 3 Division 10 of the Crimes Act has changed quite a bit between January 1993 and July 2015.

20. The second is that, for the entirety of the period captured by the indictment, the Crimes Act contained provisions to do with the interaction between medical purpose and sexual offences when the count was founded upon penetrative sexual intercourse, but not when it was founded upon non-penetrative indecent assault.

21. The third complicating factor is that the statutory regime regarding offences founded upon sexual intercourse, in which the issue of medical purpose arose, featured a complicated mix of: a mechanism for excluding penetrative physical acts from the definition of “sexual intercourse” based upon their purpose (as opposed to their objective physical characteristics); a (during that period, changing) deeming provision about the state of mind of a complainant; and a further (similarly changing) deeming provision about the state of mind of an accused person.

22. Having said all that, the approach of the parties on appeal helpfully reduced some of those complications, in ways that I shall shortly discuss.

23. To provide now a few snapshots of the Crimes Act at various times: as at the first date in the indictment, 1 January 1993, its relevant portions were as follows.

24. Section 61H relevantly defined sexual intercourse:

61H   Definition of sexual intercourse etc

(1) For the purposes of sections 61H–66F, sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or

…

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

(2) For the purposes of sections 61H–66F, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.

…

(Emphasis added)

25. It can be seen immediately that penetration “carried out for proper medical purposes” did not fall within the definition of “sexual intercourse”.

26. The primary offence creating provision was (leaving aside the averred circumstance of aggravation, in the interests of simplicity):

61I   Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for 14 years.

(Emphasis added)

27. The offence creating provision for indecent assault (adopting again a simplified approach) was:

61L   Indecent assault

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

28. There was no statutory definition of assault, and the concept was founded upon the common law. Nor was there a statutory definition of indecency, but it was founded upon common law and was undoubtedly objective: see Harkin v R (1989) 38 A Crim R 296; R v Court [1989] AC 28; [1988] 2 All ER 221.

29. The provision headed “Consent” (in fact, the section was about lack of consent and knowledge of lack of consent) was as follows:

61R   Consent

(1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

(2) For the purposes of sections 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:

(a) a person who consents to sexual intercourse with another person:

(i) under a mistaken belief as to the identity of the other person, or

(ii) under a mistaken belief that the other person is married to the person, is to be taken not to consent to the sexual intercourse, and

(a1) a person who consents to sexual intercourse with another person under a mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to consent to the sexual intercourse, and

(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse, and

(c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and

(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(Emphasis added)

30. (Section 61I was the offence of sexual assault, and 61J was aggravated sexual assault, as alleged in the indictment here.)

31. It can be seen then that, at that stage, in order to prove a count founded upon sexual intercourse in which the issue of medical purpose had arisen on the evidence, the Crown needed to prove, beyond reasonable doubt:

1. A physical act of penetration constituting sexual intercourse as initially defined;

2. That the act had not been carried out for proper medical purposes;

3. That the sexual intercourse took place without the consent of the complainant. In so proving, lack of consent was irrebuttably presumed to have existed (“is taken not to consent”) if the Crown could prove to the criminal standard that the complainant had “consented” to sexual intercourse under a mistaken belief that that sexual intercourse was for medical or hygienic purposes; and

4. That the respondent knew that, or foresaw the possibility that, or completely failed to turn his mind to the question of whether, the complainant was not consenting (regarding the concept of non-advertent recklessness, see R v Henning (Court of Criminal Appeal, 11 May 1990, unreported) at 31; as subsequently explained, albeit later in the year under consideration, in R v Kitchener (1993) 29 NSWLR 696 at 701-703). Furthermore, if the Crown could prove that the respondent knew (broadly defined) that the complainant “consented” to sexual intercourse under a mistaken belief that the sexual intercourse was for medical or hygienic purposes, then the respondent was irrebuttably presumed to know that the complainant did not, in truth, consent.

32. The deeming provisions summarised in the third and fourth elements above, were, of course, directed towards overcoming the issue, well-known to the criminal law over many years, of ill-founded, mistaken, or what I call “superficial consent”, having been given by a person to sexual intercourse, in circumstances in which the conduct of the accused should nevertheless be inculpated, because the consent was not “true” or “real” consent. Well-known examples at common law of superficial consent that could even so found a conviction for a sexual offence included: consent based upon mistaken identity (R v Dee [1884] 14 LR lr 468); consent based upon a mistaken belief in marriage (Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74); consent based upon a complete lack of comprehension of the nature of the sexual act itself (R v Williams [1923] 1 KB 340; [1922] All ER Rep 433); and consent based upon the wrong belief that a medical procedure was being undertaken by the perpetrator (R v Case (1850) 169 ER 381; Regina v Tabassum [2002] 2 Cr App Rep 328).

33. The position regarding indecent assault was less clear because, as I have shown, an otherwise objectively indecent touching was not explicitly excluded from any definition of indecent assault by way of it having been “carried out for proper medical purposes”. In similar vein, the attempt by s 61R to deal with medical purpose in the context of lack of consent and knowledge thereof applied only to offences founded upon sexual penetration, not indecent assault. But I accept the position of the parties, explicit on the part of the respondent (Appeal Transcript p 40; hereafter AT) and implicit on the part of the Crown, for the purposes of this appeal at least, that such a basis for exculpation (based on proper purpose) and inculpation (based on mistake about proper purpose) was undoubtedly available by way of the common law, and that, in accordance with the approach taken in R v Bonora (1994) 35 NSWLR 74, indecent assault should be analysed identically with sexual intercourse offences with regard to those bases of exculpation and inculpation.

34. Returning to the offence-creating provision in the statute, as at the same date, 1 January 1993, and with regard to any count in which the exculpatory issue of medical purpose had not arisen to some degree on the evidence, the Crown simply needed to prove beyond reasonable doubt (in the orthodox way, and without the benefit of any deeming provisions) that sexual intercourse or an objectively indecent touching had taken place; that the complainant did not consent to that penetration or touching; and that the respondent knew (broadly defined, as discussed above) that the complainant was not consenting.

35. By 1 January 2008, that being the next date upon which the parties agreed that there had been significant and relevant change to this portion of the Crimes Act, the relevant parts of the definition of sexual intercourse were virtually identical:

61H   Definition of “sexual intercourse” and other terms

(1) For the purposes of this Division, sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or

…

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

(1A) …

(2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.

…

(Emphasis added)

36. There was still no statutory definition of assault or indecency, with the result that non-penetrative touching undertaken “for proper medical purposes” (leaving aside questions of onus for a moment) was exculpated by implication only.

37. The provision about lack of consent and knowledge of lack of consent had, however, been substantially reworked:

61HA   Consent in relation to sexual assault offences

(1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA.

(2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e) not including any self-induced intoxication of the person.

(4) Negation of consent A person does not consent to sexual intercourse:

(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

(5) A person who consents to sexual intercourse with another person:

(a) under a mistaken belief as to the identity of the other person, or

(b) under a mistaken belief that the other person is married to the person, or

(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

(Emphasis added)

38. By that stage then, it remained incumbent upon the Crown as a first step to prove, beyond reasonable doubt, that any penetration (or, by implication, any indecent touching) had not been “carried out for proper medical purposes”.

39. As for lack of consent on the part of the complainant, pursuant to s 61HA(2), the Crown could now simply prove it overarchingly by demonstrating, beyond reasonable doubt, that a complainant had not been providing free and voluntary agreement.

40. As for provisions relating to medical purposes and lack of consent, the Crown retained the ability to “overcome” superficial consent by demonstrating, beyond reasonable doubt, that a complainant was under a mistaken belief that the sexual intercourse was for medical or hygienic purposes, pursuant to s 61HA(5)(c). In other words, what I call the irrebuttable presumption remained (albeit expressed in different words) whereby, rather than consent being “vitiated”, a person who gave superficial consent in certain circumstances “does not consent” at all.

41. As for knowledge of lack of consent on the part of an accused, the breadth of that concept at common law had now been put into statute, although, pursuant to s 61HA(3)(b), recklessness had not been explicitly “divided up” into foresight of possibility and complete non-advertence. Furthermore, a new “subjective/objective” inculpatory state of mind had been added, by way of s 61HA(3)(c). But because the Crown did not rely upon that state of mind in this trial or appeal, it need not be discussed further.

42. Finally, the Crown retained the ability to rely upon a deeming provision about the state of mind of an accused person pertaining to medical purposes, by way of the last sentence of s 61HA(5)(c). Although it was expressed in slightly different words, it remained to the same effect: an accused person who knew that a complainant was giving only superficial consent to sexual intercourse, the complainant mistakenly believing it to be for medical or hygienic purposes, “knows” that the complainant was not consenting.

43. The last snapshot to mention is the state of the legislation on the last day in the indictment. Without extracting it yet again, it had not changed in any way material to this appeal since 2008.

44. Before leaving this analysis of the statute, it is convenient at this stage to state that I respectfully reject a submission that was seemingly made on behalf of the respondent. That was that, in light of the explicit exclusion from the definition of sexual intercourse of acts of penetration that are “carried out for proper medical purposes”, the word “sexual” within the phrase “sexual intercourse” must connote a need on the part of the prosecution to prove that the physical act was motivated, at the least partly, by sexual gratification:

BUTTON J: Why did that have to be proven beyond reasonable doubt? It’s not an element of the offence.

STRICKLAND: Because the Crown has said that’s what they - that is how they’ve put it(as said). And it is essential, there is no other way they could have put their case, given the way the legislation works, because if - can I just take the Court to the definition of s 61H? May I enquire whether the Court has a copy of that provision?

BUTTON J: Yes, I do, thank you.

STRICKLAND: Sexual intercourse means: “sexual connection, occasioned by...proper medical purposes.”…That is, the meaning of the word “sexual” before the word “connotation” [scil. connection]. For there to be sexual intercourse, there must be the sexual connection - and the word occasioned, which is another causal word - caused by the penetration. Now, of course the exception makes it quite clear that if the penetration is carried out for a proper medical purpose, it’s not caught.

…

BUTTON J: So, to be clear about it, if a person pretended to be a doctor - they hadn’t been to med school, et cetera, etc, they were not acting for a proper medical purpose, patently - they sexually penetrated a patient; that person would not be liable to conviction for sexual intercourse without consent. That’s the thesis.

STRICKLAND: But your Honour just said “sexually penetrated”.

BUTTON J: Yes. All right, penetrated, let’s say, the vagina or anus of a man or woman, with an item. That pretend doctor would not be liable for conviction?

STRICKLAND: That is so.

BUTTON J: Very well. I understand the thesis.

STRICKLAND: That’s the significance of the word “sexual connection”. To answer your Honour Button J’s question about “well what’s the purpose of the exception”: it is to make abundantly clear that penetration carried out for a proper medical purpose is not, does not fall within that definition. It gets back to this central notion that the Crown had to prove, in this case, in relation to each and every examination, that there was a sexual purpose, or it was intended to, or there was an obtaining of, sexual gratification. We say that is true, pursuant to the structure of the act, and pursuant to how the Crown ran its case.

45. But that has never been the understanding of this Division of the Crimes Act since its modernisation in 1982, as exemplified by the decisions in Trevor Essex v R [2013] NSWCCA 11 at [38], [59] and, more recently, in Toohey v R [2020] NSWCCA 166 at [286]. And if that were the case, any penetration of the genitalia or anus (amongst other forms of sexual intercourse), known by the perpetrator to have been done without the consent of the victim, would not be criminalised under any of these provisions, if it were done not to obtain sexual gratification but rather in order to humiliate, or to express the power of the perpetrator over the victim, or to punish, or to damage physically or psychologically, or indeed for any other reason that did not include sexual gratification, on the thesis for the respondent. In my respectful opinion, that reading of this portion of the Crimes Act can be readily rejected.

46. In other words, my following analysis in this judgment proceeds on the basis that, in a prosecution such as this, it is not incumbent upon the prosecution to prove sexual gratification on the part of an accused person. What the Crown must prove (and disprove) are the elements that I have set out above, including by way of the deeming provisions.

47. One further, related, aspect of statutory interpretation must be noted here for completeness. As I have shown, a penetrative act that would otherwise fall within the definition of sexual intercourse is excluded “where the penetration is carried out for proper medical purposes”. As I have said, that means that the prosecution must, in a case in which the issue arises, prove the negative proposition beyond reasonable doubt. But what of a case where a perpetrator may have had two purposes: one of them a proper medical purpose, and the other sexual gratification, or indeed any other extraneous purpose? Is such a person inculpated or exculpated on the statute as it stood then (the issue is now resolved by the current wording of s 61HA(2) of the Crimes Act)? As was explained by Basten JA in DPP (NSW) v Taylor [2020] NSWCCA 138 (with the agreement of Hidden AJ and Fagan J) at [51], such a person is inculpated. That is for the simple reason that it is inconceivable that such a mixture of purposes could, in truth, be thought of as a “proper medical” purpose.

48. In other words, in the rare cases in which the controversy may arise on this superseded version of the provision, even if a jury at the first stage of analysis experiences a reasonable doubt about an accused person possibly having committed an act of penetration for a proper medical purpose, if another, extraneous purpose is established beyond reasonable doubt, the act of penetration is not excluded from the definition of sexual intercourse.

Verdicts by direction appropriate?

No evidence of mental element of complainants?

49. I now turn from the legal elements that needed to be established by the Crown to the issue of whether, at the time when the verdicts were directed, there was any evidence of each element. I shall deal first with the question of whether there was any evidence of the necessary mental element of lack of consent on the part of the complainants.

50. Expanding on that, it is trite law that, for a verdict of acquittal to be directed, a trial judge must come to the view that there is no evidence whatsoever of an essential element of the offence: see Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51. The assessment by a trial judge that any verdict of guilty would be unreasonable or unable to be supported is not to the point: Doney v the Queen. It is also well-established that, when the prosecution case is circumstantial, the mere ability to formulate an alternative rational hypothesis consistent with innocence does not call for a directed verdict: R v JMR (1991) 57 A Crim R 39.

51. The issue calls for an answer that is not in the nature of an evaluative judgement, but rather the answer to a simple binary question: is there or is there not any evidence whatsoever of an essential element? By way of simple example, if on a count of armed robbery, there was evidence of money having been stolen from the victim by the use of force, but not a scintilla of evidence, from any source, direct or indirect, explicit or implicit, circumstantial or otherwise, that a weapon was part of the offending, then there must be a verdict by direction on that count.

52. Here, the question was therefore whether there was any evidence whatsoever that the complainants were not consenting to the alleged sexual offending, bearing in mind the statutory provisions, including but not limited to the deeming provisions, that I have set out above.

53. It is true that there was no direct evidence from each complainant about her state of mind at the time of the alleged offence, a fact upon which the trial judge placed much emphasis. But the absence of direct evidence about an element is by no means determinative. The state of mind of any person is a question of fact, and facts can be proven by evidence direct or indirect, including a combination of circumstances, each of which on its own may mean virtually nothing. Direct evidence of their own state of mind at a relevant time in the past can be given by a person in the witness box, but it is by no means necessary in order to prove a mental element, whether it be of an accused person, a complainant, or anybody else. Were it otherwise, no accused person who has made no admissions, and has exercised their right to silence with police and in court, could ever be convicted of crimes featuring mental elements ranging from larceny to murder. But that is patently not the law of New South Wales.

54. The overarching question regarding a verdict by direction on any count here was whether there was any evidence that, at the time of any alleged penetration or touching, the complainant was not consenting to it. In the case of those counts in which the issue of medical purpose had arisen, the Crown could rely upon the two deeming provisions, different in focus, to overcome superficial consent. In the case of counts in which that issue had not arisen, the Crown needed merely to prove lack of consent in an orthodox way. And with regard to all counts alleged to have been committed after 1 January 2008, as I have shown the Crown could prove lack of consent in a fundamental way simply by proving lack of free and voluntary agreement to the criminal standard.

55. Regarding counts in which medical purpose was an issue, in my respectful opinion there certainly was at the least some evidence that each complainant was not consenting, in the sense of providing true consent. In particular, I consider that there was some evidence on each count that each complainant was mistaken in the belief that the penetration or touching was for medical or hygienic purposes, and was thereby giving superficial consent only.

56. One example will suffice, that of the evidence of the complainant RN. It underpinned count 9, which alleged that the respondent had massaged the inside of her vagina, and that he had done so for the purpose of obtaining sexual gratification. The evidence relevant to her state of mind included the following.

57. RN had initially seen the respondent after a referral from her general practitioner. She had been experiencing some heavy, irregular menstrual bleeding. She sought a specialist gynaecological examination.

Q. Now when you first arrived at GAT’s surgery do you remember what happened?

A. I just went up to the receptionist, introduced myself, and she asked me to sit in the waiting room.

Q. Did you do that?

A. I did.

Q. What happened next?

A. Then I was called in to, by GAT to his rooms. I went in and sat down on a chair opposite him with a desk in front of us.

Q. While you were seated across the desk from him what was the next thing that happened?

A. We talked about my problems and my past medical history.

Q. How long did this discussion go on for?

A. Not very long. Five to ten minutes probably.

Q. What happened next?

A. Then he asked me to go into his examination room which adjoined the main room, and to get undressed from the waist down, and just lay down on the examination table.

Q. Was GAT in the room while you did this?

A. No, he waited, he was, he remained into, in, in his room.

Q. When you say "his room" do you mean the consultation room that you had—

A. Yeah.

Q. --previously been in?

A. Sorry, the consultation room, yeah. And then after a time he came into the examination room.

Q. When GAT came into the examination room what happened then?

A. He asked me to put my knees up and to let my knees fall apart, sorry, my feet up towards my bottom and to let my knees fall open. He then placed his fingers into my vagina and commenced stroking, massaging the inside of my vagina.

Q. Where was GAT standing when this was happening?

A. At the bottom of the table is my memory. At my feet, sorry.

Q. So by that do you mean at the end of the examination table?

A. At yeah, sorry, at the end of the table.

Q. Now you’ve said that he inserted fingers inside of your vagina, is that correct?

A. That’s correct.

Q. And how long did this occur for?

A. It seemed to occur for a very long time but I have a feeling it was probably at the most a few minutes.

Q. What happened next?

A. What happened next was that he took his fingers out of my vagina, looked at me and smiled and said, "Did you enjoy that?"

Q. Did you say anything in response to that?

A. I did not. I was totally shocked that anybody after doing what he’d done could possibly come out with something like that.

(Emphasis added)

58. In that case, a combination of circumstances could provide a ready inference that the complainant was not providing true consent to the penetration of her genitalia. They were: the fact that the complainant had been experiencing some medical issues and requested a referral from her general practitioner to see the respondent; the fact that she knew that he was a gynaecologist; the fact that she made an appointment and went to his consultation rooms at the allotted time; the fact that she spoke to a receptionist, waited in the waiting room, had a consultation with the respondent in which her medical issues were discussed; and the fact that she proceeded to place herself in a position to be gynecologically examined.

59. One could readily infer from all of those circumstances that the complainant was not consenting to any penetration of that part of her body other than penetration undertaken for a proper medical purpose. There was no requirement for her to give direct evidence of that state of mind on her part. And if the jury were separately satisfied beyond reasonable doubt, at the first stage of the statute, that the penetration had not been undertaken for such a purpose, then proof of lack of consent could readily follow, either pursuant to the element of the offence generally, or pursuant to the deeming provision about her state of mind, whichever way it was expressed at the time.

60. Another example will suffice with regard to those counts in which medical purpose had not arisen. The following pertains to the complainant FG, who had seen the respondent in his capacity as an obstetrician to receive an embryo insemination. Her evidence, which underpinned counts 33 and 34 on the indictment, alleged that the respondent had indecently assaulted her after the procedure had been completed. Both the respondent and the complainant’s husband were in the room at the time:

Q. Once that procedure had been done, what’s the next thing that you remember happening?

A. I had to lay in the spot for a little while to let it take, and then after I was instructed by the nurses that I would be able to get up slowly.

Q. Did you get up slowly?

A. Yes, I did.

Q. Was GAT in the room while you were getting up?

A. Yes, he was.

Q. Do you remember where he was in relation to you?

A. Yes, I do. He was standing directly behind me.

Q. Do you remember where your husband was at that time?

A. Yes, I do. He was sitting directly in front of me.

Q. What’s the next thing that you can remember after you had stood up?

A. I remember that the initial feeling that I had was that GAT was standing very, very close to me, because I could feel him up against me and the breath on my neck. I had a moment where I moved forward like a little to exit, basically. And I felt underneath through the back of my robe his hand cover my—

Q. Where--

A. Sorry?

Q. No, where did you feel his hand?

A. I felt his hand underneath the back of my buttocks, and then move forward in a very quick cupping action, touching my - the back of my vagina.

Q. When you felt that, what did you do, if anything?

A. I immediately looked at my husband and - in shock. My husband reflected my shock, and I shut my robe as quickly as I could and spun around. This all occurred in around two seconds.

Q. When you did that and you spun around, what’s the next thing that you remember?

A. The next thing I remember is that I, I felt a diversion occurred as GAT kind of embraced me and kissed me on the cheek and said “You’re pregnant” like a celebration.

Q. Did he do or say anything else when he said that?

A. No, not that I recall.

Q. At some point after the procedure, did you and [the husband] leave the surgery?

A. Yes, we did.

Q. What happened once you left the surgery, what did you do then?

A. We got into the car and I started crying, and my husband had said to me as we walked to the car “Did something just happen? Are you okay?” As I got in the car and begun to cry, he then again had said to me “Did something just happen? Is what I think - did, did something happen?” And then I did explain to him exactly what had occurred.

Q. When he asked you that, as best you can remember, what did you say to him?

A. I said that I has just been touched inappropriately, and that I was disgusted, and I felt sick and I wanted to go home. And I was glad that I never ever, ever had to see that person ever, ever again.

(Emphasis added)

61. In that different kind of case, a different set of circumstances could also provide a ready inference that the complainant was not consenting to the alleged indecent assault. They are that: the complainant was in the company of the respondent for a medical purpose, not a romantic or sexual one; the “cupping” of her vagina was very unexpected by her before it occurred; as soon as she felt the alleged touching she looked at her husband “in shock”; she closed her robe as quickly as possible; she spun around; after leaving the surgery she began to cry; she immediately told her husband what had occurred; she described it as having been touched inappropriately; she felt disgusted, and expressed that state of mind to her husband; she felt nauseated; she wished to go home; and she wished never to see the respondent again.

62. Again, the failure of the Crown to lead direct evidence from her as to whether or not she was not consenting to that alleged indecent assault is of little moment: in my respectful opinion, there was a significant body of circumstantial evidence that, at the time she was allegedly indecently touched to the vagina from behind by the specialist whom she had consulted for a medical purpose, she was not consenting to it. And that state of the circumstantial evidence was nothing to do with the deeming provision that the Crown had available to it.

63. In my respectful opinion, on those two counts, and on all counts in which it was open to infer either that the complainant provided consent only to the performance of a medical procedure (and certainly not to penetration or touching that was not, in truth, for a medical purpose); or that the complainant certainly did not consent to such alleged acts as the respondent kissing her (count 23), or rubbing a body part up against her (counts 27, 30), or , as here, touching her on the vagina after a medical procedure had concluded; there was at the least some evidence of the essential mental element of lack of consent on her part.

64. For that reason, I believe that it was an error for the trial judge to direct verdicts of acquittal on any count on the basis that there was no evidence of the essential element of lack of consent on the part of the complainant. In my respectful opinion, there was a significant body of such evidence. It follows that the submission for the respondent that there was no evidence pertaining to any count of lack of consent in the trial, which as I have shown formed a significant basis of his resistance to the success of the appeal, must be rejected.

65. For completeness, I also consider that it was an error for her Honour to find that, at this stage of a verdict by direction, there needed to be explicit evidence led from any complainant that, if she had known or believed that an act of penetration or touching was not for a medical procedure, she would not have consented to it even so, for some unexplained reason or other on her part. The Crown merely needed some evidence of lack of consent on the part of each complainant, in accordance with the offence-creating provision, and the nature of a verdict by direction. The formulation of the trial judge, in my respectful opinion, was an unnecessary and confusing complication, founded on a hypothetical. It also served to turn a deeming provision that overcame a problem known to the criminal law for centuries – and thereby assisted the Crown in proving lack of consent when superficial consent had been given – into a concept that had the potential to favour the respondent.

66. To the extent that the respondent presented a line of argument that embarked upon a detailed analysis of the rights and wrongs of this area of discourse (AT p 35(27)), I assess it as unpersuasive. That is because the presence or absence of evidence supporting a deeming provision upon which the Crown was entitled to rely if it wished cannot be substituted for the simple element of the offence for which there needed only to be some evidence: lack of consent on the part of the complainant.

61. To repeat: so long as there was some evidence of lack of consent on the part of each complainant, a verdict should not have been directed on any count. And that included in those cases in which the issue of medical purpose had arisen, in which the Crown was entitled to rely upon the deeming provision in order to overcome the appearance of superficial consent. Here, on all counts there was at the least some evidence of lack of consent.

62. Finally on this point, although the concession of the Crown that I have extracted above at [13] threatened to loom large in the appeal, in truth it had no role to play. The concession merely relieved the respondent from complying mechanistically with a rule of practice, the import of which was obvious in any event, in that it was the basis of the Crown case at trial. But that tells one nothing about whether a verdict by direction should have been granted, and whether doing so involved a question of law alone.

63. In short, in my respectful opinion it was an error for verdicts of acquittal to have been directed on this basis.

No evidence of mental element of respondent?

70. Turning to the second basis of the appeal, the asserted lack of evidence of the necessary state of mind of the respondent in light of the asserted failure to comply with a rule of practice, this can be resolved quickly. That is because senior counsel respectfully conceded that the approach taken by her Honour was erroneous (AT p 52(37)).

71. I accept that concession, for the following reasons.

72. Again, looking at the circumstances as a whole, I consider that there was at the least some evidence that the respondent at the least foresaw the possibility that each complainant was not consenting, in the true sense, to his alleged actions. To expand on that: with regard to counts in which the issue of medical purpose had arisen, there was evidence that the respondent knew or at the least foresaw the possibility that no complainant was consenting to anything other than a procedure undertaken for proper medical purposes.

73. That evidence is based upon all the circumstances that I have summarised above. They include: his qualifications and experience, his occupation, the reasons (illness, IVF, and others) why women were consulting him, the absence of any significant relationship other than doctor/patient, the fact that appointments were made to consult him as a doctor during professional hours, the fact that the physical contact occurred in his consulting rooms, and the fact that what was occurring was either patently a putative gynaecological examination (as in the first example provided by me above) or something quite extraneous to that (as in the second example provided by me).

74. Regarding those counts in which the question of medical purpose could not be said to have sensibly arisen, I consider that there was certainly some evidence that the respondent foresaw the possibility that a complainant who was seeing a specialist as a patient was not consenting to such things as being kissed on the lips, or having his body pressed up against hers, or having her vagina “cupped” with his hand from behind without warning, after the conclusion of a gynaecological examination.

75. Furthermore, the deeming provision about the state of mind of the respondent made all of that evidence more powerful, at least in those counts in which mistake on the part of the complainant about a medical procedure was relevant.

76. Separately, in the circumstances of this trial, in which it was clear from the beginning that the Crown thesis was that the respondent was well aware that none of the complainants was giving true consent to any physical contact that was not for a medical purpose, strict compliance with the rule was arguably unnecessary.

77. And in any event, the rule is one of practice and fairness, not a rigid requirement: Hofer v The Queen (2021) 271 CLR 351; [2021] HCA 36.

78. Furthermore, any failing on the part of the Crown Prosecutor could have been corrected in a moment, by the simple expedient of the respondent being briefly recalled, and his alleged inculpatory state of mind being put to him, either globally or, if thought necessary, with regard to each and every count.

79. Finally, although non-compliance with the rule can indeed have negative tactical consequences for a party, a constructive finding leading to a verdict by direction that there is no evidence for the proposition that the cross-examiner failed to put to the witness is not one of them: see R v Costi (1987) 48 SASR 269.

80. In my respectful opinion, it was an error for the trial judge to direct verdicts of acquittal on this basis as well.

Conclusion on verdicts by direction

81. In short, on two separate bases, verdicts of acquittal should not have been directed in this trial. All counts should have been left to the determination of the jury.

Parameters of the appeal creating provision?

82. Having expressed my view that two errors occurred in verdicts of acquittal being directed, I turn to the penultimate question of whether that error falls within the appeal creating provision, s 107(1)(a) of the Act.

83. The following propositions are based upon my review of the most important decisions of this Court about this circumscribed right of appeal afforded to the Crown against an acquittal, focusing on those decisions in which the issue of the parameters of the section has been disputed.

84. First, such a right is obviously exceptional in our criminal procedure, and should be approached cautiously and strictly: see R v SH [2014] NSWCCA 218 at [24]-[27] (Macfarlan JA).

85. Having said that, if a significant error has been established in the directing of a verdict of acquittal, it could be said that there has not, in truth, been a hearing on the merits, in the sense of the constitutionally mandated tribunal of fact determining the matter as it should have: see R v SH at [24], referring to Davern v Messel (1984) 155 CLR 21 at 33; [1984] HCA 34.

86. Secondly, the requirement to identify a question of law alone self-evidently rules out an appeal based on question of mixed fact and law. It is also more restrictive than the simpler formulation of “a question of law”: Regina v JS [2007] NSWCCA 272 at [74].

87. Fourthly, in contrast, the word “involves” is broader and more inclusive than a preposition such as merely “on”.

88. Fifthly, Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 is a touchstone, referred to in many decisions of this Court, in which a relevantly similar (although not identical) Tasmanian provision was discussed. In that case, Gibbs CJ approved the proposition that there is a question of law alone “if the question of law can be stated and considered separately from the facts with which it may be connected in a given case” (at 287). Mason and Brennan JJ emphasised that a mixed question of fact and law is insufficient (at 301). Wilson and Dawson JJ agreed with that proposition, and otherwise agreed with the Chief Justice (at 314).

89. Sixthly, although the appeal creating provision speaks of “a question”, it is incumbent upon the Crown if it is to succeed to point to an error actually committed at first instance: Regina v XHR [2012] NSWCCA 247 at [21] (Beazley JA). In other words, this Court cannot be asked merely to substitute its own determination for that of a trial judge, if the latter is correct.

90. Seventhly, the error cannot be trivial or negligible or irrelevant to the verdict by direction; it must be causative of, or at least material to, it: see R v BK [2022] NSWCCA 51 at [175] (Rothman J).

91. Eighthly, in my opinion, at a simple level of analysis, the question of whether a verdict of acquittal should be directed could perhaps be characterised as a question of law. After all, the tribunal of law in the form of the trial judge determines it in the absence of the jury, and the tribunal of fact in the form of the jury plays only a ritualistic role. Furthermore, there is no evaluation of the strength or probative value of the evidence by the trial judge: it is simply a matter of providing a binary answer to the question of whether there is any evidence whatsoever of all elements of the offence.

92. But at a deeper level, it can surely be said that the decision has two phases. The first is correct identification of all of the elements of the offence in question, whether created by statute or common law. That, to my mind, is quintessentially a question of law alone that “can be stated and considered separately from the facts with which it may be connected” in the form of the evidence in the trial; see R v SH at [28], quoting Williams v The Queen at 287 . The second phase is consideration of the evidence, and whether there is some evidence, however weak, in support of each element. The two phases to my mind are, first, a question of law alone, followed secondly by a question of mixed law and fact. The foregoing is based very largely upon the analysis of Spigelman CJ in Regina v JS at [82], repeated in R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 at [14], which I respectfully replicate. It is also consonant, I respectfully believe, with the analysis of Wilson J in R v DB [2022] NSWCCA 87 at [127]-[130].

A ground that involves a question of law alone?

93. Applying that jurisprudence to this case: here, to repeat for convenience, the amalgamated question posed by grounds 1 and 2 prior to the application for amendment at the conclusion of the hearing in this Court was as follows:

1. In a prosecution for an offence against [s 61J(1)/61M(1)] Crimes Act 1900, in order to prove absence of consent to [sexual intercourse/indecent assault], is it sufficient for the Crown to prove that the complainant had a mistaken belief that the physical act was for a medical purpose, or is the Crown required to prove that the complainant would not have consented to the sexual intercourse/indecent assault had the complainant not held that mistaken belief?

94. As I have shown, that was based directly on the reasons given by her Honour for directing a verdict on the first basis. That, to my mind, was a discrete question of law alone, as to what precisely the Crown legally needed to prove about the state of mind of a complainant, in order to establish sexual offences such as these. And it was based on the judgment of the trial judge herself in support of the erroneous verdict by direction. Unamended, this was a ground that involved a question of law alone.

95. The same, in my respectful opinion, can readily be said about grounds 3 and 4, again unamended, and again repeated in amalgamated form for the convenience of the reader:

1. Whether it is open to a trial judge to direct a verdict of acquittal for a charge alleging an offence against [s 61J(1)/61M(1)] of the Crimes Act on the basis that the Crown Prosecutor has not put to the accused in cross-examination on the particular charge that (a) he had an intention to obtain sexual gratification and/or (b) that he knew that the complainant was not consenting to sexual intercourse/indecent assault.

96. Those grounds involve a readily severable question of law alone about the purported legal consequences to a party of an asserted failure of that party to comply with a legal rule of practice. And again, they are derived from the dispositive judgment.

97. In short, in my opinion, both grounds involve a question of law alone, even as unamended. It follows that the opposed application at the end of the hearing to amend as needs be does not require determination.

98. To expand upon that: regarding grounds one and two, much weight was placed for the respondent on the fact that the questions underpinning them speak of a complainant who had a mistaken belief about the medical purpose of a physical act, as opposed to a complainant who provided superficial consent under such a mistaken belief, to use the precise words of the statute in both of its forms (AT p 45(18)). But that difference, in my opinion, is neither here nor there, and certainly cannot play a determinative role in these proceedings. That is because, from the commencement of the trial until the conclusion of the hearing in this Court, it was undoubtedly understood by all concerned that the topic under discussion was a mistaken belief in a medical procedure that led a complainant to provide superficial consent to a physical act, but certainly not true consent to what was allegedly occurring. Without that understanding, the whole question of the state of mind of the complainants about medical procedures would have been otiose. In my respectful opinion, the approach for the respondent to the issue of how the questions underpinning the grounds were framed was unduly punctilious.

99. In similar vein, a further submission for the respondent was, with respect, quite correct: in fact, some allegations of indecent assault, such as that of FG described above, could have had nothing to do with the issue of superficial consent to a medical procedure (AT p 972). But it could hardly be said that, regarding those few counts, ground two therefore did not at all “involve a question of law alone” pertaining to the issue of medical procedure, with the result that the question is inapposite, and the ground must fail. That is for the simple reason that the trial judge overarchingly directed verdicts of acquittal based upon a legal analysis of the issue of medical procedure, drawing no such distinction, when in truth it did not arise with regard to such counts: see the judgment in question at pp 5-8.

100. It follows in short that the errors that I have identified fall within the parameters of the appeal-creating provision.

101. It follows as well that I would uphold the appeal against the directed verdicts of acquittal on all grounds.

New trial to be ordered?

102. Having determined that two legal errors underpinned the verdict by direction, and having determined that those errors fall within the parameters of the appeal-creating provision, I turn now to consider whether, pursuant to s 107(6) of the Act, this Court should order a new trial.

103. In written submissions for the respondent resisting that course, it was said that: the question is a discretionary one; that the Crown bears the onus of satisfying this Court that it should so order; that the overriding consideration is the interests of justice; that it was “acknowledged” that the alleged offences were serious, involved a large number of complainants, and that there is a strong public interest in having them determined by a trial according to law; and that in other cases, the discretion not to order a new trial has been exercised, even in such cases as alleged murder and alleged fatal terrorist acts.

104. It was also submitted that, because any trial would in fact be the third, provisions in the Criminal Procedure Act 1986 (NSW) would not permit the evidence of any complainant to be that given by her previously.

105. The submission was also made that the prosecution case on many counts is weak, “because there is no direct evidence that the complainants had a mistaken belief that the physical acts comprising the counts were for a medical purpose.”

106. It was also said that the length of time between the alleged commission of the offences and any new trial would be extreme, bearing in mind that the first count pertains to 1993, and the last to 2015. It was said that the lack of memory of the respondent with regard to the alleged consultations with most of the complainants argued powerfully to the same effect. It was also said that these proceedings have themselves been on foot for seven years, the respondent having been first charged in November 2016. Relatedly, it was said that there has already been one appeal to this Court, and that, as I said, a further trial will be the third. That, it was submitted, would be additionally oppressive.

107. The submission was also that any further trial would impermissibly permit the prosecution to “patch up” an allegedly defective case.

108. It was said that the Crown at the least contributed to any errors relied upon in the appeal, as follows. First, it was said that the Crown had submitted at trial that the evidence “indicates that [the complainants] either consented to the conduct because it was a medical procedure or where it was touching – that they did not consent”. Secondly, although the Crown opened to the effect that each complainant would give evidence that she had not given “informed consent”, no such evidence was adduced. Thirdly, the Crown did indeed breach the rule in Browne v Dunn. Fourthly, the Crown at first instance had not systematically analysed the evidence in support of each count as to the consent of each complainant, the issue of mistaken belief, and whether the respondent sought sexual gratification.

109. In short, it was said that the Crown had “positively contributed” to the errors said to underpin the appeal.

110. Finally, it was said that, the respondent having given evidence, the Crown would unfairly have the benefit of that form of disclosure on his part at a further trial.

111. In oral submissions, senior counsel emphasised the aversion of our criminal law to placing individuals in jeopardy multiple times in relation to a single alleged incident (AT p 53(20)). Due to the fact that each of the 19 complainants may be required to give evidence again, any new trial would likely be lengthy; at least two months, in the submission for the respondent. The new trial would likely, then, not be listed until 2025. As such, the respondent will, by that time, have been living in a state of anxiety and insecurity over these charges for almost a decade.

112. It was noted that the respondent has not practiced as a medical professional since his registration was suspended following his arrest.

113. The sheer cost of representation for such a lengthy trial means that the respondent would, as before, need either to fund, or run, his own defence.

114. As above, the fact that the respondent has no memory of many individual complainants, and minimal medical notes that fail to indicate certain details regarding examinations performed on these complainants (for example, whether an examination was performed with one hand, which would be regarded as medically contraindicated, or two), creates a significant forensic disadvantage for the respondent.

115. It was submitted that these matters powerfully justify a finding that any new trial ordered would be unduly oppressive.

116. The final point made orally was that the alleged defects in the presentation of the Crown case before the trial judge could only be “fixed” by way of a process whereby the Crown would be unfairly advantaged in yet another trial by a legal error that was no fault of the respondent.

117. Turning to my determination of this final question, I accept that many submissions for the respondent are correct, and have significant force. Others of them are contestable – for example, the proposition that the Crown case is weak, or that the Crown significantly contributed to erroneous verdicts by direction that it in fact bitterly opposed (TT p 1866) – but in my opinion do not require explicit resolution now.

118. That is because the overwhelmingly countervailing factor, in my respectful opinion, is that the issue of whether the Crown had proven beyond reasonable doubt: very serious alleged offending; alleged to have been committed against many complainants; allegedly over 22 years; by way of a very gross alleged breach of trust; by the respondent, a mature adult in a position of authority in Australian society; should have been left to the determination of a jury. Instead, that process was erroneously interrupted, and brought to an abrupt end without any such determination. I respectfully think that the administration of criminal justice could be brought into disrepute were this Court to refuse to order a new trial and thereby maintain the legally ill-founded verdicts of acquittal, in all of those circumstances. In my respectful opinion, reflecting on all of the factors present here, the interests of justice do not permit these legally erroneous acquittals to stand.

102. Whether to pursue all or any of the counts by way of a further prosecution, that being an issue based on countless further considerations of which this Court knows nothing, is another question entirely, and one for the Director of Public Prosecutions.

Orders

120. For those reasons, I propose the following orders:

1. Appeal upheld.

2. Verdicts of acquittal on all counts quashed.

3. New trial ordered on all counts.

4. The matter is listed before the Criminal List Judge of the District Court on 22 March 2024 at 9:30 AM.

121. WEINSTEIN J: I agree with Button J.

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Decision last updated: 08 March 2024