R v GAT

Case [2024] NSWCCA 32 8 March 2024

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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…

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 GAT

Details

AGLC: R v GAT [2024] NSWCCA 32
Case: [2024] NSWCCA 32
Decision Date: 08 March 2024

CaseChat Overview and Summary

In the case of R v GAT, the Crown sought to appeal against directed verdicts of acquittal for the respondent, who was employed as a gynaecologist and obstetrician. The respondent was facing 40 counts of aggravated sexual offences involving 19 complainants. At trial, the respondent argued that the physical acts in question had either been performed for a proper medical purpose or had not occurred at all. The trial judge directed verdicts of acquittal, finding that the Crown had not provided sufficient evidence to demonstrate that the complainants were not consenting or that the respondent possessed the requisite mental element for any sexual offence. The Crown appealed, focusing on four proposed questions of law.

The court examined whether the directed verdicts were erroneous. It found that the evidence regarding the complainants' lack of consent was readily inferred. Furthermore, there was evidence that the respondent at least foresaw the possibility that each complainant was not consenting. Consequently, the Crown's appeal was successful, and the directed verdicts of not guilty were quashed. The court determined that a new trial was appropriate, despite the respondent's argument that a third trial would be unduly oppressive. The court concluded that it was not in the interests of justice to allow the acquittals to stand.

The court ordered new trials, acknowledging the significance of the allegations and the need for a fair judicial process. The appeal allowed, and the verdicts of not guilty were quashed, paving the way for further proceedings to address the serious allegations against the respondent.

Orders