R v Johnson

[2004] NSWCCA 121

CITATION:	R v Johnson [2004] NSWCCA 121
HEARING DATE(S):	20/11/03; 23/04/04
JUDGMENT DATE:	13 May 2004
JUDGMENT OF:	Tobias JA at 1; Wood CJ at CL at 1; Hidden J at 1
DECISION:	Appeal allowed, new trial ordered.
CATCHWORDS:	CRIMINAL LAW: Appeal fresh evidence aggravated sexual assault - allegation of penile penetration of a young man without his consent - new evidence suggesting appellant was impotent
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Gallagher v The Queen (1985-1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259
PARTIES :	Keith William Johnson (appellant) Regina (respondent)
FILE NUMBER(S):	CCA 60321/02
COUNSEL:	P Hamill (appellant) D Arnott (Crown)
SOLICITORS:	Legal Aid Commission of NSW (appellant) Solicitor for Public Prosecutions (respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/61/0101
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

60321/02

TOBIAS JA
WOOD CJ at CL
HIDDEN J

Thursday, 13 May, 2004

REGINA v Keith William JOHNSON

Judgment

1 THE COURT: After a trial in the Bathurst District Court before Nield DCJ, sitting without a jury, the appellant was found guilty of aggravated sexual intercourse without consent, pursuant to s 61J(1) of the Crimes Act. He was convicted and sentenced to a term of imprisonment. He appeals against conviction and sentence.

2 The appellant was legally represented at his trial. The appeal was listed before the Court, as presently constituted, on 20 November 2003, when he was unrepresented. We embarked upon the hearing but adjourned it so that certain inquiries could be made. Following a grant of legal aid, the hearing was resumed on 23 April 2004, when the appellant was represented by solicitor and counsel different from those who had acted for him at his trial.

3 A number of grounds of appeal which the appellant had argued when he was unrepresented were not pursued. At the resumed hearing three grounds were relied upon. Two of them, expressed in the alternative, were based upon new evidence. A third ground, arising from part of his Honour’s reasons for his verdict, need not be determined. We were satisfied that the new evidence required the conviction and sentence to be set aside and a new trial ordered. We made those orders on 23 April 2004, undertaking to give our reasons later. These are those reasons.

4 The charge of which the appellant was found guilty alleged the anal rape of a 16-year-old youth. It is unnecessary to examine the evidence in any detail. At the relevant time, early March 2001, the complainant lived in a flat at Orange. The appellant and a mutual friend, Robert Dunford, were staying at the flat. The complainant’s evidence was that on the night in question the appellant came into his bedroom, threatened him with a knife, and had penile-anal intercourse with him. The complainant said that the appellant also inserted his finger into his anus, but the charge was founded upon the allegation of penile penetration. There was also a charge in the indictment based upon an allegation of fellatio but, as the complainant gave no evidence to that effect, the appellant was acquitted of that count. (In relation to both allegations there were alternative counts, to which it is not necessary to refer.)

5 The appellant was sixty-one years old at the time. Upon legal advice, he did not give evidence at the trial. Nor were any witnesses called in his case. However, in an electronically recorded interview with police conducted upon his arrest about a month after the incident, he denied the allegation of anal intercourse. Rather, he said, the complainant had had anal intercourse with him in a consensual encounter. He added that he could not have had anal intercourse with the complainant because for some years he had been unable to achieve an erection. It is this which gives rise to the new evidence in the appeal.

6 The appellant relied upon his own affidavit and reports from two medical practitioners. We received this material provisionally, as the Crown prosecutor in this Court did not concede that it met the test for admission of fresh evidence in an appeal. In response, without objection, the Crown read a number of affidavits and tendered some documentary material. For the most part this related to the conduct of the trial by the appellant’s earlier legal representatives. As will be apparent from these reasons, we determined that the interests of justice required the admission of the evidence tendered by the appellant.

7 What emerges from that evidence is that in April 1999, almost two years before the incident in question, the appellant consulted Dr Jonathan Corbett-Jones, a general practitioner in Bathurst, about a number of medical problems, including impotence. Dr Corbett-Jones’ report records that the appellant “had a significant history of ischemic heart disease and coronary heart disease and had a previous myocardial infarct”. The report continues:

He stated at the time that impotence was his main problem and we did in fact discuss with him aspects of this, however I cannot detail specifically whether in fact he was impotent all the time or impotent only at some stages. I would have to guess in view of his age and his history and the fact that he was seeking further help regarding that, that in fact he was having significant problems with sexual intercourse.
He may have been able to maintain erections at other times but he was certainly on a few medications that were responsible for looking after his heart and blood pressure and in fact also took anginine tablets and there would have been a significant concern regarding treating him with some of the medications that were used for impotence, namely Viagra in view of the cross reaction with nitrates, which is what anginine is.

8 At a further consultation later in the same month, he discussed with the appellant the possibility of using a medication for impotence, Caverject, but it was not prescribed at that time. However, when he was before the Court on 20 November 2003 the appellant said that he had later obtained a prescription.

9 Before the trial the appellant told his then legal representatives that he had sought treatment for impotence, but he mistakenly named the general practitioner as Dr Cohen-Brown. Inquiries by his solicitor failed to locate a practitioner of that name, and the trial proceeded without any medical evidence. It was his present solicitor who tracked down Dr Corbett-Jones.

10 For the purpose of the appeal the appellant’s solicitor also obtained a report of Dr Chris McMahon, genitourinary physician. Dr McMahon did not examine the appellant but reviewed a volume of material relating to him, including Dr Corbett-Jones’ report. Having noted the appellant’s age, he wrote:

Large community based epidemiological studies suggest that approximately 50% of men in this age group have erectile dysfunction with 13% experiencing complete erectile failure. Approximately 75% of men at the age of 60 who suffer erectile dysfunction will have an underlying physical cause. The most common physical cause is penile vascular disease or narrowing of the penile arteries resulting in a reduced blood flow into the penile erecting chambers. Penile vascular disease is more likely to occur in men with hypertension, diabetes, hypocholesterolemia, coronary artery disease and in men who smoke. Men with coronary artery disease are 1.9 times more likely to develop erectile dysfunction. Men with hypertension who smoke cigarettes are approximately 3 times more likely to develop erectile dysfunction. In as much as Mr Johnson has multiple penile vascular risk factors, i.e. hypertension, coronary artery disease, and serious smoking, he was at the time of the alleged offence highly likely to suffer a degree of erectile dysfunction. His decision to discuss his sexual difficulties with Dr Corbett-Jones during two separate consultations in April of 1999 suggests a significant degree of dissatisfaction with his sexual function. The majority of men who present for treatment of erectile dysfunction choose to delay seeking advice until their sexual function has deteriorated to the point of frequent sexual failure and significant distress.
In general, successful penetration requires a rigid or close to rigid erection. It is speculative but reasonable to assume that anal penetration of an 18-year-old man would require a relatively rigid erection. It is also speculative but also reasonable to suggest that a 60-year-old man with vascular risk factors who has previously reported erectile dysfunction to his treating doctor would have significant difficulties in penile anal penetration. I am unable however to unequivocally state that Mr Johnson at the time of this alleged offence would have had sufficient erectile dysfunction to preclude penile anal penetration.

11 The grounds of appeal arising from the new evidence were as follows:

Ground 1: There was a miscarriage of justice in that there is a significant possibility that the Court would have reached a different verdict if that Court had been aware of medical evidence supporting the appellant’s statement to the police that he was unable to achieve a penile erection.
Ground 2: In the alternative to ground 1, the trial miscarried as a result of the failure of the appellant’s legal representatives to exercise due diligence in obtaining such medical evidence as is now available.

As we concluded that ground 1 was made out, it was not necessary to determine the second ground.

12 No doubt, the terms of ground 1 were derived from the judgment of Mason and Deane JJ in Gallagher v The Queen (1985-1986) 160 CLR 392. In the course of considering the principles relating to fresh evidence on an appeal, their Honours said (at 402):

…the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence…is…whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.

Mason CJ reaffirmed that test in Mickelberg v The Queen (1989) 167 CLR 259 at 273.

13 For present purposes, it is apt to set out the succinct statement of the relevant principles in the judgment of Gibbs CJ in Gallagher (at 395-6):

The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.

14 The Crown prosecutor in this Court argued that the new evidence should not be admitted and that, in any event, there had been no miscarriage of justice because with due diligence the evidence could have been led at the trial. One might fairly question whether the appellant and his then legal representatives had done all that they might to locate Dr Corbett-Jones or, subject to funding constraints, to have obtained another medical opinion. However, as Gibbs CJ pointed out in the passage quoted above, it is not “a universal and inflexible requirement” that the new evidence be such as could not with reasonable diligence have been produced at the trial. Given the significance of the evidence in the present case, we would not allow that requirement to stand in the appellant’s way.

15 The Crown prosecutor also questioned whether the new evidence might have affected the verdict. Judge Nield found the complainant to be an impressive witness. His Honour accepted the complainant’s evidence that he complained promptly to Robert Dunford that he had “just got raped”. A doctor who examined him the next day found a mucosal tear and a superficial abrasion in the anal area, consistent with recent anal intercourse. Obviously, the doctor was unable to say how recent. He said that the mucosal tear would heal within a maximum of a period of weeks, and of the abrasion he could say no more than it was caused within days of his examination.

16 The Crown prosecutor also relied upon the complainant’s evidence that the appellant inserted his finger into his anus which, he argued, was consistent with the appellant having difficulty achieving penetration. The complainant also said that the appellant used a lubricating gel, and in his instructions to his solicitor at trial the appellant said that he carried gel and condoms in his backpack. This, of course, is not inconsistent with his being a recipient homosexual, and his instructions continued that he produced the gel and a condom for the purpose of the complainant penetrating him. He had given the same account in his interview with the police. The Crown also relied upon evidence that at the time of his arrest he was in possession of a knife similar to that described by the complainant.

17 As to the new evidence, the Crown prosecutor pointed out that neither Dr Corbett-Jones nor Dr McMahon could say with any certainty whether the appellant would have been unable to achieve an erection at the relevant time. In addition, by his own admission when previously before this Court, the appellant had a prescription for Caverject (although, of course, there is no evidence that he used that medication, which has to be injected into the penis, on the occasion in question).

18 No doubt, there was a strong Crown case and the new evidence is not watertight. Nevertheless, the evidence is of obvious importance and, in our view, there is a “significant possibility” that it would have created a reasonable doubt about the appellant’s guilt. The Crown prosecutor argued that, even if we were of that view, we should apply the proviso because the complainant’s evidence that the appellant penetrated him digitally would have been sufficient to establish the crime charged. That would not be an appropriate course. As we have said, the case was conducted upon the basis that the charge embraced the allegation of penile penetration. In any event, the allegation of digital penetration was also challenged and it is not a matter about which his Honour made any specific finding.

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Last Modified: 05/18/2004