Reeves v R; R v Reeves - [2013] NSWCCA 34

Court of Criminal Appeal

New South Wales

Case Title: Reeves v R; R v Reeves

Medium Neutral Citation: [2013] NSWCCA 34

Hearing Date(s): 13 August 2012

Decision Date: 21 February 2013

Before: Bathurst CJ at [1], [426]; Hall J at [109], [426]; R A Hulme J at [284], [426]

Decision:
1. Application for leave to appeal against conviction for maliciously inflicting grievous bodily harm with intent (s 33 of the Crimes Act) granted.

2. Appeal against conviction for maliciously inflicting grievous bodily harm with intent dismissed.

3. Application for leave to appeal against conviction for two counts of aggravated indecent assault (s 61M(1) of the Crimes Act) granted.

4. Appeal against conviction for aggravated indecent assault (complainant CA) dismissed.

5. Appeal against conviction for aggravated indecent assault (complainant RF) allowed; conviction quashed; and verdict of acquittal entered.

6. Crown appeal against sentence allowed.

7. Sentences imposed in the District Court on 1 July 2011 set aside.

8. The respondent be re-sentenced as follows:

(i) In respect of the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013.

(ii) In respect of the offence of aggravated indecent assault of CA under s 61M(1) Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013.

(iii) In respect of the offence of maliciously inflict grievous bodily harm with intent under s 33 Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years to expire on 30 November 2016.

9. Specify that the first date upon which the respondent will be eligible for release on parole will be 30 November 2014.

Catchwords: CRIMINAL LAW - appeal - conviction - maliciously inflicting grievous bodily harm with intent - Crimes Act s 33 - medical assault - whether lawful cause or excuse - whether jury misdirected as to consent -correct direction as to consent - operation of Criminal Appeal Act s 6(1) proviso - whether accused deprived of reasonable chance of acquittal

CRIMINAL LAW - appeal - conviction - aggravated indecent assault - Crimes Act s 61M - whether verdict unreasonable or unsupportable on evidence - reliability of complainants testimony - relevance of delay

CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - objective seriousness - mitigating factors - whether undue weight placed on subjective factors - whether structure of sentences such that total effective sentence manifestly inadequate

Legislation Cited: Crimes Act 1900
Crimes Amendment Act 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Medical Practice Act 1992

Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Appleton v Garrett [1996] PIQR P1
Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 86 ALJR 549
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chatterton v Gerson [1981] 1 QB 432
Cheung v The Queen (2001) 209 CLR 1
Collier v R [2012] NSWCCA 213
Cooper v The Queen [2012] HCA 50
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Darwiche v R [2011] NSWCCA 62
Dinsdale v The Queen [2000] 202 CLR 321
Eagle v Prosser [1999] NSWCA 166
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Fleming v R [1998] HCA 68; (1998) 197 CLR 250
Freeman v Home Office [1984] 1 QB 524
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
Gilham v R [2012] NSWCCA 131
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McDonald v Ludwig [2007] QSC 28
Mulloy v Hop Sang [1935] 1 WWR 714
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Oudomvilay v R [2006] NSWCCA 275
R v Balakrishnan Arvind, (NCSCCA, 8 March 1996, unreported)
R v Benetiz [2006] NSWCCA 21; (2006) 160 A Crim R 166
R v Champion (1992) 64 A Crim R 244
R v Hammoud (2000) 118 A Crim R 66
R v Hemsley [2004] NSWCCA 228
R v Isaacs (1997) 41 NSWLR 374
R v Israil [2002] NSWCCA 255
R v Myers [2002] NSWCCA 162
R v Wilson [2005] NSWCCA 219
R v Wright (1997) 93 A Crim R 48
Reibl v Hughes [1980] 2 SCR 880
Richards v Rahilly [2005] NSWSC 352
Rogers v Whitaker (1992) 175 CLR 479
Savvas v The Queen (1995) 183 CLR 1
Sidaway [1984] 1 QB 493
Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871
Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
TC v R [2009] NSWCCA 296
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Wilmot v R [2007] NSWCCA 278
Winn v Alexander [1940] O.W.N 238

Texts Cited: Gillies, Criminal Law, 4th ed (1997), Thomson Reuters
Somerville "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740
Waller & Williams, Criminal Law Text and Cases, 11th ed (2009) LexisNexis

Category: Principal judgment

Parties: Regina
Graeme Stephen Reeves

Representation

- Counsel: Counsel:
Mr P Hamill SC with Ms S Beckett (Applicant/Respondent)
Mr P G Ingram SC with Ms H Wilson (Respondent/Applicant)

- Solicitors: Solicitors:
Legal Aid Commission
Solicitor for Public Prosecutions

File Number(s): 2008/77882

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Woods QC DCJ

- Date of Decision: 01 July 2011

- Court File Number(s): 2008/77882

Publication Restriction: No

JUDGMENT

BATHURST CJ: Mr Graeme Reeves ("the applicant") was convicted and sentenced for four offences: obtaining a financial advantage by deception, maliciously inflicting grievous bodily harm with intent and two offences of aggravated indecent assault.
On 1 July 2011, the applicant was sentenced by his Honour Judge Woods to a total term of three years and six months imprisonment with a non-parole period/fixed term component of two years. There is a Crown appeal against the asserted inadequacy of the sentences. That appeal is considered in the judgment of Hall J, where the details of the individual sentences appear. The applicant is presently due for release on parole on 31 May 2013.
The applicant pleaded guilty on 8 February 2011 to the offence of obtaining a financial advantage by deception (an offence contrary to s 178BA of the Crimes Act 1900, as it then stood). On 10 March 2011, he was found guilty by a jury of the offence of maliciously inflicting grievous bodily harm with intent (an offence contrary to s 33 of the Crimes Act). There was a further trial before Woods DCJ, sitting without a jury, in respect of five offences of aggravated indecent assault (offences contrary to s 61M(1) of the Crimes Act). His Honour returned verdicts of guilty for two counts and not guilty for the other counts on 14 April 2011.

Leave to appeal against conviction

The applicant applies for leave to appeal against conviction for the grievous bodily harm and aggravated indecent assault offences. Rule 4 of the Criminal Appeal Rules applies in respect of the grievous bodily harm offence as the grounds of appeal concern directions to the jury to which no objection was taken at trial, although I note that the Crown declined to rely on this rule. The grounds of appeal in relation to the aggravated indecent assault offences do not involve "a question of law alone" and so leave is also required: s 5(1) of the Criminal Appeal Act 1912 ("the Act").

Background

The offences for which the applicant was convicted all concerned events that occurred between December 2001 and July 2003, when he held an appointment as an obstetrician and gynaecologist at Bega and Pambula District Hospitals.
The applicant had moved to the Bega area after suffering professional and personal problems while practicing as an obstetrician and gynaecologist in Sydney during the 1990s. The problems ultimately led to the Professional Standards Committee of the NSW Medical Board ordering in 1997 that the applicant "cease the clinical practice of obstetrics", although he was permitted to continue working as a gynaecologist on a conditional basis. The Committee's report found he was impaired by personality and relationship problems and depression, which impinged on his capacity to practice medicine.
In sentencing the applicant the trial judge found that his situation had not improved following his move to Bega. He worked at the Bega and Pambula Hospitals in both gynaecology and obstetrics, despite the proscriptions imposed on him.
These judgments
The following is my judgment in respect of the application for leave to appeal against conviction for the grievous bodily harm offence. The application for leave to appeal against conviction for the aggravated indecent assault offences is dealt with in the judgment of R A Hulme J. The Crown appeal against sentence is dealt with in the judgment of Hall J.

The grievous bodily harm offence

The grievous bodily harm offence related to an operation performed upon Ms Carolyn De Waegeneire ("the complainant") on 8 August 2002, which resulted in the removal of her genitalia, including her labia and clitoris. In the broadest terms, it was alleged by the Crown that the operation performed was unnecessary and done without the consent of the complainant.
The following grounds of appeal are raised:
"1 The trial miscarried because the jury was directed erroneously in relation to the issues of lawful excuse, consent and intention.
2 The trial miscarried because the trial judge directed the jury in terms which were appropriate to a civil suit for negligent failure to warn and advise but not to a criminal prosecution for an offence of violence."
Although the grounds of appeal are relatively narrow, it is convenient to set out in a little detail the course of the trial. This is because of the Crown's contention that even if there was a misdirection of the nature suggested there was no miscarriage of justice and the proviso in s 6(1) of the Act should lead to the dismissal of the appeal.

The course of the trial

(a) The Crown opening

The Crown opened to the jury that on 24 June 2002 the complainant consulted her general practitioner, Dr Salisbury, and asked her to look at a white patch of skin on her vulva. Following a biopsy, Dr Salisbury told her that the pathology revealed a condition called Vulval Intraepithelial Neoplasia Grade 3 ("VIN 3"). The Crown told the jury that whilst Dr Salisbury said to the complainant it was a cancerous condition, the evidence from gynaecological cancer experts would be that it was in fact pre-cancerous. The Crown stated that Dr Salisbury referred the complainant to the applicant and that the complainant's evidence would be that the applicant suggested surgery to remove the lesion, that he drew a diagram for her to show the extent of the surgery and told her that it was a relatively minor procedure and only a small flap of skin would be removed. The Crown stated that her evidence would be that although she signed a consent form stating the operation was a simple vulvectomy, at no stage was she told what that was or that it involved taking other than a small flap of skin.
The Crown stated that the complainant would give evidence that whilst she was lying on the operating table, just before she was rendered unconscious, the applicant came over to her and put his face quite close to hers and said quietly "I'm going to take your clitoris too".
The Crown also opened to the effect that a Nurse Demmery, who was present at the operation, said to the applicant "you wouldn't be taking my clitoris no matter what", and the applicant replied "It doesn't matter. Her husband's dead anyway". The Crown stated that the operation which took place involved the removal of almost the whole of her genitalia including her labia majora, labia minora, her clitoris and her perineum. The Crown also stated that the evidence would demonstrate that pathology tests taken subsequent to the operation showed no invasive malignancy and that apart from the discrete lesion the rest of the vulva from all the samples looked at was unremarkable and normal.
The Crown opened that expert medical evidence which would be led would demonstrate that the operation was quite unnecessary.
The Crown Prosecutor summarised the Crown case in the following terms:
"It's the Crown's case that this did not have to be such a massively and permanently disfiguring operation. The accused didn't have Mrs De Waegenaire's consent to perform such a radical operation. She at no time was told of the amount of tissue that was to be taken and she was given to believe that it was a small lesion that it would simply be cut out. She was never told to expect the complete excision of her vulva. She was never told of any of the consequences sexually or in every day life from the complete loss of the structures of her genitalia. She didn't expect it. She didn't give her informed consent ... and the Crown of course contends that it was never necessary for the accused to perform the radical and disfiguring surgery in circumstances where there was only a small lesion and it was never conveyed to Mrs De Waegenaire that so much was going to - that this entire area of her body would be removed."
The Crown also indicated during the course of the opening, that it would contend that notes prepared by the applicant, which recorded additional dystrophy or abnormality of the complainant's vulva were in fact fabricated to include the extra areas as an explanation as to why the applicant took so much tissue from the complainant. The Crown said it would be contending that the notes were inconsistent with a letter to Dr Salisbury written after the operation referring to only one area of VIN 3, the operation report filled out by the applicant after the operation and the pathology reports obtained after the operation.

(b) The defence case

Counsel for the defence opened the applicant's case briefly. He stated that he expected the real issues in the case would be whether or not the Crown had established that the operation was not for the complainant's benefit and, perhaps more importantly, whether or not the Crown had proved the accused did not have an honest belief that it was necessary for her medical benefit.
Having regard to the respective openings the principal issue on which the jury was being asked to focus was whether the applicant had an honest belief that the operation was necessary for the patient's welfare and whether the complainant had consented to an operation as extensive as the one which was in fact undertaken.

(c) The evidence led by the Crown at trial

The complainant in chief gave evidence broadly consistent with the manner in which the case was opened by the Crown. She said that the applicant told her that he would excise the lesion and he drew a diagram saying it was a simple operation. She also stated the applicant said that the operation was a simple vulvectomy which was going to excise the lesion not explaining the meaning of the term simple vulvectomy.
The complainant said that the applicant did not mention her clitoris nor discuss her capacity for orgasm following the surgery although he stated she could have intercourse after the scars healed up "although it would feel different" because "she would be minus one flap of skin on one side".
The complainant denied that she was given a diagram showing the extent of the excision which was in fact performed. She denied that the applicant told her that she was a "ticking time bomb" or that she appeared to have "some dystrophy possibly lichen sclerosus et atrophicus".
The complainant also gave evidence that immediately before she went under the anaesthetic the applicant leaned over to her and said "I'm going to take your clitoris too". She gave evidence that the applicant never mentioned taking her clitoris before and that she would never have walked in through the hospital door to start with had she been told that that was what was intended.
The complainant acknowledged she did not complain to anyone about the extent of the operation, either to the hospital staff or to the applicant during the time she was an inpatient at the hospital, that she subsequently visited the applicant to have her stitches removed and that she first complained to the police in April 2008.
Nurse Demmery gave evidence that during the course of the operation she noticed what she thought was a large piece of tissue being removed and commented to the applicant that it was fairly radical to which he replied "Yes if I didn't take that much the cancer would spread". She also gave evidence that when she said to him "you wouldn't be taking my clitoris no matter what", he said the patient's husband was dead so it did not matter anyway.
Dr Salisbury, the complainant's general practitioner, gave evidence that the applicant did not inform her, in his letter of 5 July 2002 reporting on the consultation, or at any other time, of any other area of disease on the complainant's vulva besides the VIN 3. She stated that she did not recall any signs of, or make any note of, dystrophy or of lichen sclerosus being present on examination.
Two pathologists were called by the Crown, Dr Edwards who microscopically examined a specimen taken from the complainant by the applicant and concluded there was no other abnormality of the specimen apart from the VIN 3, including the clitoris. Nor, he concluded, was there any lichen sclerosus. The other pathologist, Dr Jain, reached the following conclusion:
"There was high grade dysplasia or high grade abnormality in the vulva skin which was completed excised... the cells had not transgressed the basement membrane or the junction between the first layer and the second layer - it had not gone into the second layer, so it is not an invasive malignancy."
He also noted that the remaining vulva was unremarkable; that means it showed no abnormalities. He stated he saw no evidence of lichen sclerosus.
Three gynaecological oncologists, Dr Davy, Dr Dalrymple and Professor Hacker, gave evidence that the extensive surgery performed was not appropriate for the presentation of a single lesion. Two practising gynaecologists, Dr Pesce and Professor Korda, gave evidence to the effect that efforts were made to preserve the clitoris and if it had to be removed the implications would need to be discussed with the patient. Each of these doctors indicated that they believed the surgery was excessive. Professor Hacker acknowledged that if there was genuine multifocal disease he would not have been too critical of the operation. He stated that one would still ideally try to preserve the clitoris but that was more problematic if there was a significant multifocal disease. He acknowledged that in an earlier trial he had given evidence to the effect that if a patient in fact had lichen sclerosus it might be something to consider, but there was no evidence that the complainant had it.
This relatively brief summary of the Crown case indicates that the focus of the evidence led was directed to the issues of consent, whether the operation was necessary for the patient's welfare and the applicant's honest belief in such.

(d) The evidence of the applicant

The applicant did not give evidence at the trial but his evidence at a previous trial on the same issues was tendered by consent.
In his evidence in chief at that trial he said that after taking a history from the complainant he conducted a thorough examination of the complainant using his colposcope as a vulvoscope. He said that the complainant's vulva, without magnification, showed changes of quite a degree of thinning and reddening in the vulval area which is equivalent to dystrophy. He pointed out that he labelled it DYS in his notes, which he said meant dystrophic. He explained that meant abnormal growth or appearance. He stated it was also known as lichen sclerosus et atrophicus, which is sinister when localised on the vulva, as in combination with VIN 3 it made it more likely that invasive cancer would occur later on.
The applicant stated that he explained to the complainant with the aid of two diagrams that what he saw was pre-cancerous and that she did not have any signs of invasion at the time. He said he explained what was involved in the operation, indicating that both the labia minora and the majora would be removed. He stated that after that explanation she indicated she did not want to travel to Sydney or Melbourne to have it treated and that she wanted it dealt with in one go. He said he told her that the only option was to do a simple vulvectomy to remove the dystrophic changes.
The applicant stated that the complainant took the diagram on which he had explained the operation with her when she left the consultation. For the purpose of his evidence he sought to reproduce the diagram which was tendered. He explained that the first part of the diagram showed a dotted line which was the area of excision and the second part showed the area closed indicating vertical and lateral extension. He said the purpose of the second drawing below the first (which he said was included in the diagram given to the complainant) was to give some indication of what her genitals would look like after the procedure.
The applicant stated that he believed at the time the complainant understood exactly what he told her of the procedure and that she also understood the diagrams and what they meant. He stated that there was no discussion about the excision of the clitoris but it was marked on the diagram.
The applicant stated that his belief was that the complainant understood what was implied by the term "simple vulvectomy" and that he never said to her that only a small flap of skin would be excised. He denied that he told the complainant shortly before she became unconscious that he was going to take her clitoris too. He also denied the conversation which Nurse Demmery said had occurred, although he said that he may have mentioned that her husband was dead.
He stated that he believed that a simple vulvectomy was the appropriate treatment. He said he knew the condition of vulval dystrophy and dysplasia to be commonly multifocal, which he said meant that the conditions were in more than one site at one time and in more than one degree in one area. He said he knew that recurrence did not occur at the site of the local excision but tended to occur in other areas of the vulva, so he felt the optimal treatment was to remove as much abnormal epithetting or abnormal skin as he was safely able to do. He reiterated that he described the procedure to the complainant and drew a sketch of it, indicating what it was called and what it was going to do. He reiterated that although he did not specify the clitoris he did in fact draw it on the diagram and that it was within the dotted area.
In cross-examination he denied the proposition that "simple vulvectomy was not the treatment for anything today or in 2002". He acknowledged that the pathology disclosed no lichen et sclerosus but stated that it did not follow that the complainant had no dystrophy, as dystrophy was a clinical appearance found on clinical examination by both the naked eye and magnification and indicates abnormal appearance.
The applicant acknowledged that if the VIN 3 was localised it was possible simply to do a few wide local excisions.
In cross-examination the applicant stated that he had told the complainant she had a dystrophic vulva and that the VIN 3 seemed to be localised. He agreed that patients would not know what a dystrophic vulva was and that he could not recall defining the term. He also agreed that a sizeable portion of the community do not use the term vulva when it comes to describing women's genitalia.
The applicant denied that the pathology taken after the operation did not support the operation performed. He said the use of the pathology was to exclude much more sinister problems but it was a random exercise in sampling and you cannot be sure that the whole of the specimen was examined. He acknowledged that in his report to Dr Salisbury he should have referred to the areas of dystrophy which he claimed to have seen, but stated that he did not. He also made no mention of this in his operation report or on the consent form to the operation which was signed by the complainant.
It was put to the applicant that when he came to know in 2005 that concerns had been raised about his surgery he added a bit more "DYS" in his notes in order to justify the surgery. He denied the proposition, asserting "she had clinical features of a dystrophy on both sides of the vulva and VIN 3 on the left side".
The applicant acknowledged that he knew that the optimum treatment for a unifocal VIN 3 was a local excision, but stated that it was not the optimum treatment for a multifocal VIN 3. It was put to him again, and he denied, that his clinical notes were fabricated and he also rejected the proposition that he did not show the complainant a diagram. He stated that he told the complainant that he was going to remove the abnormal skin, that she had a dystrophic vulva and he was going to remove all the abnormal skin. He reiterated his view that the operation was appropriate.
In cross-examination the applicant initially agreed that excision of the clitoris would be a horrific prospect for any woman although he stated not for all women. He said when he drew the diagram for the complainant there was a discussion about intercourse and that he told her she would look different and it would feel different but intercourse would be possible. He acknowledged again that at no time did he mention removal of the clitoris to the complainant, although he said it was encompassed by the diagram. He said the fact that he did not mention the clitoris was a criticism he could not retract from. He said he did not discuss orgasm with her but accepted that it was not possible without a clitoris. He acknowledged that it was part of his role to talk about sexual function after any operation he might perform because it was an integral part of a human being's health.
He accepted that he did not tell the complainant she would be grossly mutilated by the surgery.
In cross-examination the applicant again denied the conversation alleged by the complainant to have taken place immediately prior to her succumbing to the anaesthetic. He also said that he could not recall the conversation alleged by Nurse Demmery.
Towards the conclusion of his cross-examination the applicant was asked whether he accepted that he had not obtained the complainant's informed consent. He stated that retrospectively from the testimony of the complainant it appeared that that was the case but prospectively he believed he had.
The applicant acknowledged that he did not explain to her that after surgery she would have difficulty with the process of urination and accepted that the loss of the vulva is a very difficult thing for women to incorporate into their self-image. He denied that he did not care about psychosexual problems the complainant may suffer as a result of the surgery or disruption to her sexual function.
The cross-examination was lengthy and with respect somewhat repetitive. However it focused on the following issues:
(a) Whether the complainant gave her consent to the operation?
(b) In that context, whether the complainant received the diagrams which the applicant said explained the extent of the operation?
(c) Whether the conversations alleged to have taken place in the operating theatre occurred?
(d) Whether there was necessity for the extensive operation?
(e) In that context, whether the applicant believed that the complainant had lichen sclerosus and whether he made the entry "DYS" on his notes when he realised that complaints were being made about the operation.

(e) Closing address for the Crown

In its final address, the Crown told the jury that it submitted that the applicant's claim of having detected widespread dystrophy over the complainant's vulva was wrong and that he had made up the diagnosis of dystrophy retrospectively to justify why he performed an operation which was grossly out of proportion to what he should have done. The Crown pointed to the admission by the applicant that he had not referred to a diagnosis of dystrophy to Dr Salisbury and observed that the consent form to the operation and the operation report did not refer to dystrophy. The Crown stated that the complainant suffered grievous bodily harm because the rest of the vulva was unremarkable - healthy.
The Crown in its address relied on the complainant's evidence that there was no mention of taking the clitoris and her denial of the receipt of the diagram showing the clitoris being removed. She also referred to the evidence of Nurse Demmery and the evidence of the specialist gynaecologists that the surgery was inappropriate.
The Crown also directed the jury to the accused's statement that he did not see anything abnormal about the clitoris and to his retrospective agreement that he did not get consent. The Crown referred to his evidence where he agreed that he did not indicate the difficulties in urination she would have after the operation and finally, to his acknowledgment, that he would not use a simple vulvectomy for VIN 3 unless there were other problems.

(f) Closing address for the defence

Counsel for the applicant referred to the absence of any motive for the applicant to carry out an operation out of proportion to what was required. He stated there were two critical issues. First, whether the applicant had an honest belief that the complainant was consenting to the operation and, second, whether he had an honest belief that the operation was proper surgery for the patient's benefit. Reference was made to the notes stating that the applicant had observed dystrophy and the absolute consistency between what the applicant said in his notes and his evidence in earlier proceedings.
Reliance was placed on the diagram said to have been given to the complainant when the operation was explained to her. Reference was also made to the fact that the complainant made no complaint immediately after the operation.
Counsel for the defence emphasised that the experts who gave evidence were not provided with evidence that the applicant had detected dystrophy. It was also pointed out that Professor Hacker had said that a simple vulvectomy might be something to consider if the complainant had lichen sclerosus and that three out of five experts were prepared to accept that in certain circumstances a simple vulvectomy was a reasonable option for a gynaecologist.
In conclusion counsel for the defence said that the case for the accused was that the complainant gave her consent and that it was up to the Crown to prove the absence of consent beyond reasonable doubt and to disprove that the accused honestly believed that the operation was for her benefit.

(g) The written directions to the jury

The written directions to the jury explained the elements of the offence charged in a manner which was uncontroversial and then proceeded to deal with what was described as the question of lawful cause or excuse. The written directions stated that it was for the Crown to prove that the accused had no lawful cause or excuse and that there would be lawful cause or excuse if the applicant performed a lawful surgical operation on the patient, honestly believing at the time:
(a) That he did so with her informed consent.
(b) That the operation was proper surgery for the patient's benefit.
The direction continued in the following terms:
"There will not be 'lawful cause or excuse' for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation, including the removal of the labia and clitoris;
Furthermore there will not be 'lawful cause or excuse' if the Crown proves beyond reasonable doubt that at the time of the operation the accused did not honestly believe that the surgery (to the full extent he performed it, including removal of the labia and clitoris) was proper surgery for the patient's benefit.
What Does 'Informed Consent' Mean?
As a matter of law, any person has a right to his or her bodily integrity. In the context of this case, the law says that medical surgery cannot be performed on an adult person except with the voluntary and informed consent of the patient.
'Consent' means 'agreement'.
Consent may be in writing, or spoken, so long as it is voluntarily given.
To be valid, consent must be 'informed'. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation, and any options or alternative treatments which may be reasonably available.
The explanation must be given at a time when the patient is conscious. If the patient is affected by drugs or anaesthesia, a purported consent at that time may be invalid if the patient cannot understand it.
An explanation given in merely technical medical language may also fail to lead to valid consent, because the patient does not understand it or is misled by it.
The purpose of the consent procedure is to inform the patient and to obtain the patient's agreement to what is performed. If the explanation is not communicated adequately, by clear writing and/or words, the meaning of which she can grasp, the patient may not understand the explanation, or a vital part of it. If so, it cannot be said that there is 'informed consent'."

(h) The trial judge's summing-up

The trial judge commenced his summing-up by reference to his written directions. He referred to the evidence from Professor Hacker and other witnesses that the excision of the clitoris in particular can have a severe psychosexual impact upon a person and that a proven mental or psychological trauma which is a direct result of this (the surgical removal) can be described in law as bodily harm or injury. He stated that it was not in dispute that the surgery was done by a registered doctor. He also stated it was not in dispute that the surgery was done with technical competence.
The trial judge then dealt with lawful cause and excuse. He repeated twice what he said in his written directions and then proceeded to explain consent in the following terms:
"As a matter of law, any person has a right to his or her bodily integrity. In the context of this case, the law says that medical surgery cannot be performed on an adult person, except with voluntary and informed consent of the patient. 'Consent' means agreement. Consent may be in writing or spoken, so long as it is voluntarily given. To be valid, consent must be informed. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation and any options or alternative treatments which may be reasonably available.
The explanation must be given at a time when the patient is conscious. If the patient is affected by drugs or anaesthesia, a purported consent at that time may be invalid if the patient cannot understand it. An explanation given in merely technical language, may also fail to lead to valid consent, because the patient does not understand it, or is misled by it. The purpose of the consent procedure is to inform the patient and to obtain the patient's agreement to what is proposed.
If the explanation is not communicated adequately by clear writing and/or words the meaning of which she can grasp, the patient may not understand the explanation or a vital part of it. If so, it cannot be said that there is informed consent."
The trial judge then proceeded to sum-up the evidence given at the trial in a manner which was uncontroversial.
During the course of their deliberations the jury asked a question in the following terms:
"On page 6 of the Directions of Law a definition of informed consent is given. Are we to assume that this is the literal definition of informed consent by which the accused is to be judged for his actions relating to the operation he carried out in August 2002."
The trial judge answered that question in the following terms:
"Now the answer to that question is yes. But when you read the material on page 6 relating to informed consent you should also bear in mind what is on page 5 under Lawful Cause or Excuse. That is to say the Crown must prove both the absence of informed consent from the perspective of the patient and as well it must rule out beyond reasonable doubt an honest belief by the accused that there was informed consent at the time of the operation. Is that clear? Let me take it a little further then.
If you go back to page 5 let me take you through that material again. Lawful Cause of Excuse. The accused cannot be found guilty in this trial on any charge unless you are satisfied beyond reasonable doubt that the accused had no lawful cause or excuse for what he did. The law says that doctors can have a lawful cause or excuse to perform surgical operations which might not [sic] otherwise be criminal acts if carried out by persons other than qualified doctors. An issue arises here as to whether the accused had as a medical practitioner a lawful cause or excuse. Now let me just explain there. The issue arises here because the accused has said in his evidence and through his counsel 'I honestly believed I was doing the right thing, if I have made a mistake about whether she consented it was an honest mistake'. So this issue arises as to whether there was a lawful cause or excuse. It is for the Crown to prove that the accused had no lawful cause or excuse towards the bottom of the page the second last paragraph is what we are dealing with here. There will not be lawful cause or excuse for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris. Now what appears on page 6 about informed consent is how you judge whether or not there was informed consent. But you read that in the light of the other directions about lawful cause or excuse."

The applicant's submissions

In his written submissions the applicant pointed to the fact that the Crown's case was that the surgery was unnecessary and that this was put in three different ways. He noted that the first way the Crown put its case was that the applicant was motivated by spite; the second was that the applicant did not honestly believe the surgery was necessary for the patient's benefit; and the third was that he did not have the informed consent of the complainant and did not honestly believe he had her informed consent. The applicant referred to the remarks on sentence of the trial judge which, it was said, rejected the first two bases. The trial judge stated that "he [the applicant] failed in his important duty as a surgeon to discuss with the patient the full scope of what he intended to do" and "the sense in which he intended to inflict grievous bodily harm was that he performed the excessive operation knowing that he was doing so without proper informed consent to the removal of the labia and clitoris".

The applicant submitted that as the trial was conducted, the issue was reduced to a consideration of the nature of informed consent and a doctor's duty to inform the patient. He submitted that the jury was misdirected in a fundamental way, being directed in terms of the law of negligence. He submitted that the approach that was appropriate was clearly reflected by what was said by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490:
"The consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed."
The applicant submitted that the direction given was erroneous because it gave rise to the possibility that he would be convicted for failing to properly inform the complainant in accordance with common law duties under the law of negligence. He made five specific complaints:
(i) The introduction of the concept of informed consent was dangerous in the context of a criminal trial where the issue was whether a doctor performing surgery had lawful excuse to commit the act giving rise to the charge.
(ii) The jury was invited to judge whether the applicant had communicated adequately.
(iii) The jury was directed that if the applicant had not communicated adequately it cannot be said there was informed consent.
(iv) The jury was invited to make judgments as to what constituted "major consequences" of the operation and what "alternative treatments" were "reasonably available" in order to determine whether the complainant ought to have been informed of those things in the context of whether there was informed consent.
(v) The directions may have been appropriate in a civil action for negligence but they were not appropriate to a criminal trial for an offence of violence requiring proof of a specific intent.
The applicant gave one example of the difficulty that he submitted emerged from the direction. He submitted that taking the definition of informed consent literally, the duty may have included explaining that a possible consequence of the operation was puddling of urine on urination and that a failure to so advise may have meant that informed consent was not provided and/or the applicant did not have an honest belief on that question. At the hearing senior counsel for the applicant submitted that having regard to the direction the jury was entitled to find that that was a possible major consequence of the operation and that the applicant had not advised her and therefore not obtained informed consent. Ultimately the applicant submitted that an appropriate direction would be in terms directed to the following propositions:
·Consent and lawful excuse are established if the patient is advised in broad terms of the nature of the procedure to be performed.
·However, if information is withheld in bad faith, the consent will be vitiated by fraud.
At the hearing senior counsel for the applicant submitted that there was a real risk, having regard to the direction, that the applicant was convicted on the basis he was a bad doctor or a bad communicator. He acknowledged that there would be no complaint had the direction been that the jury had to be satisfied beyond reasonable doubt that the complainant was not told anything about the extent of the surgery to be performed and she did not consent to it. Senior counsel for the applicant submitted however that the Crown at the trial had put the consequences of the operation squarely in issue.
Senior counsel for the applicant properly conceded that if the only explanation for the verdict of the jury was that the complainant did not consent to the operation which took place or that the applicant did not honestly believe that this was the case, then the appeal would fail. He submitted, however, that this was not the single issue before the jury, saying that in addition there was the question as to whether or not the complainant had lichen sclerosus, whether the applicant told her of his opinion in that respect and whether he warned her of the consequences to her sex life and the consequences concerning urination.

The Crown's submissions

The Crown in its written submissions pointed to the fact that the judge emphasised the distinction between an action in negligence and a criminal prosecution. It pointed to the fact that informed consent is an inherent part of lawful excuse and it was necessary for directions to be given on that question. It submitted that the emphasis placed on the issue of informed consent inevitably meant giving some elucidation of that notion to the jury. The Crown contended the direction given was consistent with what the High Court in Rogers v Whitaker supra said was appropriate for the offence of battery.
Although the Crown did not seek to rely on r 4 of the Criminal Appeal Rules, it emphasised that no objection was taken to the direction in the court below and submitted that the appeal had the flavour of what was described in Darwiche v R [2011] NSWCCA 62 at [170] as an armchair appeal.
In that context the Crown contended that the jury must have rejected the applicant's assertions relating to his explanation of the procedure to the complainant and must have been satisfied beyond reasonable doubt that the applicant did not have lawful excuse for his conduct. The Crown submitted that the remarks on sentence of the trial judge, to the extent he determined that lack of lawful excuse only arose because of the applicant's lack of honest belief that he had obtained informed consent, were erroneous.
In these circumstances, the Crown submitted, that if there was a misdirection there was no miscarriage of justice and the proviso in s 6(1) of the Act should be applied.

Consideration - The directions

There is little authority in this country as to the appropriate direction to be given to a jury on the issue of consent in what might be described as medical assault cases. However, as the applicant pointed out, in Rogers v Whitaker supra, the High Court drew a clear distinction between liability in a claim for negligence for failure to advise of risks inherent in a medical procedure and liability for the offence of battery.
In Rogers v Whitaker, the High Court held that the law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk being material if in the circumstances of the particular case a reasonable person, in the position of the patient, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is, or should be, reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker at 490.
The High Court declined to adopt the approach suggested in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, to the effect that a medical practitioner is not negligent if he or she acts in accordance with the practice accepted by a responsible body of medical opinion and the extension of this principle to a failure to warn of risks by the majority of the House of Lords in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871. However, the Court emphasised that its conclusions were not directed to the issue of whether or not a medical practitioner would be liable in trespass because of the absence of consent to a particular procedure. In that context the plurality made the following remarks:
"In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as 'the patient's right of self-determination' or even the oft-used and somewhat amorphous phrase 'informed consent'. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase 'informed consent' is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term 'informed consent'." [Citations omitted]
In reaching this conclusion the Court cited the judgment of Bristow J in Chatterton v Gerson [1981] 1 QB 432 with apparent approval. In that case Bristow J stated the consent necessary to defend a claim in trespass in the following terms:
"In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass."
In the judgment of the Court of Appeal in Sidaway [1984] 1 QB 493, each member of the Court adopted a similar approach (see at 511 per Donaldson MR, 515 per Dunn LJ and 518 per Browne-Wilkinson LJ. See also Freeman v Home Office [1984] 1 QB 524 at 537).
The comments of their Lordships in each of these cases were consistent with what was said by the High Court in Rogers v Whitaker in the passage cited above.
In Rogers v Whitaker the Court also cited with approval the decision of the Supreme Court of Canada in Reibl v Hughes [1980] 2 SCR 880. In that case the applicant at trial obtained damages in both battery and negligence for his surgeon's failure to advise him of the risk of paralysis following an operation. The applicant was ultimately successful on appeal but only on the issue of negligence.
In the course of his judgment Laskin CJ, with whom the other members of the Court agreed, emphasised that the failure to disclose risks involved in a surgical procedure did not vitiate consent for the purpose of a claim in trespass. His Lordship also warned of the dangers of the use of the term informed consent, making the following remarks:
"In my opinion, these findings do not justify the imposition of liability for battery. The popularization of the term 'informed consent' for what is, in essence, a duty of disclosure of certain risks of surgery or therapy appears to have had some influence in the retention of battery as a ground of liability, even in cases where there was express consent to such treatment and the surgeon or therapist did not go beyond that to which consent was given. It would be better to abandon the term when it tends to confuse battery and negligence." (at [9])
His Lordship also suggested that actions in battery should be confined to cases where no consent to the procedure was given by the patient or where the consent was obtained by fraud or misrepresentation. In that context his Lordship stated the position as follows:
"The well-known statement of Cardozo J. in Schloendorff v. Society of New York Hospital, at pp. 129-30 and at p. 93 respectively, that 'every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages' cannot be taken beyond the compass of its words to support an action of battery where there has been consent to the very surgical procedure carried out upon a patient but there has been a breach of the duty of disclosure of attendant risks. In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.
This standard would comprehend cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out." (at [11]-[12])
And
"I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the duty of due care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent." (at [13])
These cases, in my opinion, make it clear that a failure to explain to a patient the possible risks involved in a procedure, however material, will not lead to the conclusion of an absence of consent for the purpose of criminal proceedings or the tort of trespass.
It should be accepted that consent requires more than mere formalistic acquiescence to the proposed medical procedure. In order for a patient to be taken to have consented they must have been informed, in broad terms, of the nature of the procedure, in terms which they have understood: Mulloy v Hop Sang [1935] 1 WWR 714 at [1]. Merely having the patient sign a consent form for example, is insufficient: Chatterton supra at 443. Further, it is uncontroversial that a patient's consent only extends to the medical procedure explained to them. This includes the physical act to be undertaken and the extent of interference with the body proposed. If some other medical procedure other than that agreed to is performed, or the treatment or procedure goes beyond what is consented to, then there has been no relevant consent: Chatterton supra at 443; Mulloy v Hop Sang supra at [2]; Winn v Alexander [1940] O.W.N. 238; Reibl v Hughes supra at [11]-[12].
The reasoning in Rogers v Whitaker, Chatterton v Gerson and Reibl v Hughes has not, to my knowledge, been challenged in this country, the United Kingdom or Canada. In Appleton v Garrett [1996] PIQR P1, Dyson J, as his Lordship then was, quoted with approval the judgment of Bristow J in Chatterton v Gerson supra, endorsing the proposition that once a plaintiff is informed in broad terms of the nature of the procedure which is intended and gives her consent, the consent is real unless information is withheld in bad faith or the consent is vitiated by fraud ([1996] PIQR P1 at 3). His Lordship did not elaborate what he meant by withholding information in bad faith but his remarks were made in the context of a factual finding that the defendant dentist deliberately withheld information from his patients that the treatment he proposed was unnecessary because he knew they would not have consented had they known the true position. In that context, irrespective of the issue of consent, criminal liability would arise because the Crown would be able to establish beyond reasonable doubt that the dentist did not honestly believe that the operation was proper surgery for the patient's benefit.
In McDonald v Ludwig [2007] QSC 28, Muir J, whilst citing the passage in Rogers v Whitaker supra to which I have referred, held that consent to a procedure for a specific purpose did not operate as a consent to perform the same or similar acts for a different or unrelated purpose (see [2007] QSC 28 at [88]). It is not necessary in the present case to consider whether that statement is correct in the context of criminal proceedings.
Once it is accepted that consent is not vitiated by a failure to disclose risks inherent in the procedure it follows in my view that a failure to explain alternative treatments would not operate to vitiate consent. That is because decisions as to which treatment option is most appropriate are generally based on a consideration and weighing of the relative risks of alternative treatments. Further, a doctor's obligation to choose between alternative treatments is fundamentally bound up with a medical practitioner's professional duty of treatment and diagnosis. It is quite distinct from the obligation to provide information, to which the question of consent relates: Richards v Rahilly [2005] NSWSC 352 at [223]-[235]; Eagle v Prosser [1999] NSWCA 166. Whether or not such a failure could amount to a breach of a duty of care such as to give rise to a liability in negligence (see Eagle v Prosser supra at [36]-[38]; Richards v Rahilly supra at [230]-[231]), such a failure would not vitiate consent for the purpose of criminal liability.
In these circumstances, any direction to the jury on this issue should be to the effect that the accused will not be guilty of assault unless the Crown proves beyond reasonable doubt that the complainant has not consented to the nature and extent of the procedure and that the doctor does not honestly believe that she has so consented. The only exception is where consent is vitiated by fraud or misrepresentation. Expressions such as "informed consent" or "real consent" should be avoided as, in my opinion, they tend to obscure the difference between criminal and civil liability in this area.
In the present case it is not necessary to decide the difficult question whether consent to the nature of the procedure can be given in circumstances where the patient is not aware of the inevitable consequences of the procedure as distinct from potential risks associated with it. (See Somerville "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740.) In many cases such consequences will be readily apparent but there will be cases where they are not. As no argument was directed to this issue, it is unnecessary to express any view on it.
It follows, in my opinion, that the trial judge misdirected the jury both in his written directions, orally and in answering the question posed by the jury in the course of their deliberations. I have set out the directions earlier in this judgment (see pars [56]-[61] above). The initial part of the direction, namely "there will not be lawful cause or excuse for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris", may not have constituted a misdirection although the word "informed" tends to obscure the issue. However, the reference in the definition of informed consent to the requirement of an explanation of the possible major consequences of the operation and of any options of alternative treatment which may be reasonably available potentially had the consequence that the jury could convict on the basis that, although the complainant was informed of the nature of the operation, she was not informed of the risks or alternative treatment and that in those circumstances the Crown had established beyond reasonable doubt that the applicant did not honestly believe he had obtained the complainant's consent. The same difficulty arises with the oral direction and the answer to the question asked by the jury.
It follows that unless this is an appropriate case for the operation of the proviso, there should be a retrial.

Consideration - The operation of the proviso

The operation of the proviso in s 6(1) of the Act can only lead to the dismissal of the appeal if the Court is satisfied that no substantial miscarriage of justice has actually occurred. As was pointed out by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [43]-[44] and in subsequent cases, there is no universal description or criteria for determining what constitutes a miscarriage of justice: see also Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at [17]. However, as was also pointed out in Weiss, it is a necessary but not necessarily a sufficient condition that the Court is persuaded that the evidence properly admitted at trial proves the accused's guilt beyond reasonable doubt: see Weiss supra at [44]. See also Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 86 ALJR 459 at [27]-[29]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [124]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [53]; Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [41]-[42]; Cooper v The Queen [2012] HCA 50 at [20]-[21].

In considering whether the evidence proves the guilt of the applicant beyond reasonable doubt, the Court proceeds on the same basis as when it is invited to set aside a jury verdict on the grounds that it is unreasonable. The Court must make its own assessment of the evidence and determine, making due allowance for the limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, whether the accused was proved beyond reasonable doubt to be guilty of the offence charged: Weiss supra at [41]; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at [84].
In the present case I am satisfied beyond reasonable doubt that the applicant was guilty of the offence charged. There is no doubt he performed the operation which resulted in the removal of the complainant's genitalia including her labia and clitoris. Consistently with what appears to be the basis of the remarks of the sentencing judge, I am prepared to assume that the Crown failed to prove beyond reasonable doubt that the applicant did not honestly believe that the surgery was proper surgery for the patient's benefit. That only leaves the question of whether the Crown failed to prove beyond reasonable doubt that the applicant honestly believed that the complainant consented to an operation involving the removal of her labia and clitoris.
I am satisfied, taking into account the limitations in dealing with the matter on the record, that the applicant did not have such an honest belief. First, there is the evidence of the complainant to which I have referred, to the effect that she did not consent to the operation which was performed upon her and in particular she did not consent to the removal of her labia and clitoris. As pointed out above (see par [20]) her evidence was that he told her that he would excise the lesion. Her evidence of the remark made to her by the applicant immediately prior to the operation, "I'm going to take your clitoris too" (see par [23] above) is consistent with the complainant not previously having been told of that fact. If this evidence is accepted, there is no basis for concluding that the applicant had an honest belief that there was consent to the operation.
The applicant acknowledged that he did not tell her at any time that he was going to remove her clitoris, although he insisted it was marked on the diagram which he gave her (see pars [36], [43] above). The complainant denied receipt of the diagram.
Importantly, the applicant acknowledged in his evidence that the appropriate treatment for unifocal VIN 3 was a local excision (see pars [38], [42] above). His justification for the operation was that on examining the complainant he had detected dystrophy or lichen sclerosus. If this was in fact the condition observed by him, it was, both on his own evidence and on the evidence of Professor Hacker, a serious matter and it is inconceivable that it would not have been reflected in the applicant's report to the complainant's general practitioner, in his operation notes, or on the consent form he caused the complainant to sign. However, there was no reference to it on any of these documents. Further, the pathology reports provided no evidence of the condition.
The only evidence to the contrary is a note "DYS" on notes produced by the applicant. Having regard to the other evidence to which I have referred, I am satisfied that that is not what the applicant observed on examination.
Once it is concluded that the applicant was untruthful in stating the extent of the disease he observed in examination, there is no reason to doubt the complainant's evidence as to the explanation she was given and her denial of receipt of a diagram showing the extent of the operation which was performed. The explanation of the extent of the operation given to her was consistent with what on the evidence was necessary for an operation on a person with her condition. Even if it is accepted that the Crown had failed to prove beyond reasonable doubt that the applicant did not have an honest belief as to the necessity of the operation, that is no reason in the circumstances of this case to doubt the complainant's version of what she had been told or her denial of the receipt of a diagram showing the extent of the operation. In those circumstances I am satisfied to the requisite standard that the applicant did not have an honest belief that the complainant had consented to the nature and extent of the operation.
I am conscious in reaching this conclusion that the complainant did not complain for a considerable period after the time of her operation, her first complaint to the police being in April 2008. She admitted she could have complained earlier. Whilst this is of course relevant in considering the complainant's evidence, it does not cause me to alter the view I have expressed above particularly having regard to the objective evidence of the report to the general practitioner, the operation notes and the absence of any reason for the operation as evidenced by the pathology reports.
In these circumstances I am persuaded that the evidence led at the trial proved the offence beyond reasonable doubt.
Nor am I of the view that the direction resulted in the applicant being deprived of a real chance of acquittal. Although the Crown declined to rely on r 4 of the Criminal Appeal Rules it is of significance that no objection was taken to the direction by experienced counsel at the trial: See Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 at [77].
The applicant's submission on this issue is summarised in par [64] above. In summary it was submitted that the jury could have convicted on what was essentially inadequate communication, or on the basis that informed consent was not given in circumstances where the complainant was not informed of alternative treatment or the risks involved in the operation.
I do not believe that this is correct. Having regard to the way the case was conducted and the opening and closing addresses, what was clearly put in issue on the question of consent was whether the complainant had consented to the procedure undertaken rather than a relatively minor surgical procedure. The evidence given by experts as to the appropriate treatment was not directed to alternative treatments which may have been available and discussed, but rather to whether the applicant could have believed the operation was for the benefit of the complainant. There was some limited cross-examination on possible consequences and there was a reference in the closing address of the Crown to the fact that the complainant was not told of the difficulty she may have in urination subsequent to the operation, but it does not seem to me that that cross-examination or that reference would lead to a real likelihood that the jury convicted on the grounds that although the complainant was informed of the nature and extent of the operation, she was not informed that subsequent to it she would have difficulties in urination.
Further, although in his answer to the question from the jury the trial judge reiterated his definition of informed consent, he did so by reference to the earlier part of his written direction and repeated that there would not be lawful cause or excuse for the surgery performed if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris. The trial judge thus recognised the area which issue had been joined by the parties and directed the jury to that particular issue.
In those circumstances, in my opinion, the applicant did not lose a reasonable chance of acquittal.
Further, I do not consider that there was an error so fundamental that there is no room for the operation of the proviso. It is not a case where the trial was so flawed that this Court is deprived of the capacity of assessing whether or not the applicant may have lost a fair chance of acquittal: See Cesan supra at [81]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [6]. Nor are there any other circumstances in the present case which lead to the conclusion that there was such a departure from a fair trial according to law that it is inappropriate for that reason alone not to apply the proviso: Wilde v The Queen (1988) 164 CLR 365 at 373; Nudd supra at [6]; Darkan supra at [94].
It follows, in my opinion, that in the circumstances of the present case leave to appeal should be granted, the proviso applied and the appeal against conviction dismissed.

The appeal against the convictions for aggravated indecent assault

I agree with the conclusions of R A Hulme J on these appeals and his reasons for those conclusions.

Crown appeal against sentence

I agree with the conclusions of Hall J and his reasons for those conclusions.
HALL J: I agree with the reasons for judgment and the orders proposed by Bathurst CJ and R A Hulme J in relation to the applications for leave to appeal against conviction. The following is my judgment on the Crown appeal against the sentences imposed upon Mr Reeves who I will refer to as "the respondent".
The Director of Public Prosecutions appeals to this Court pursuant to s 5D(1) of the Criminal Appeal Act 1912 in respect of sentences imposed by the Sydney District Court on 1 July 2011.
The Director initially relied upon a Notice of Appeal filed on 18 July 2011.
A second Notice of Appeal was filed on 6 October 2011 which was served upon the respondent on 7 October 2011.
Particulars of the offences charged, the sentences imposed and the maximum penalties in respect of each of the offences were summarised in the Crown's Written Submissions as follows:

OFFENCE SENTENCE IMPOSED MAXIMUM PENALTY

(a)
Obtain benefit by deception from Southern Area Health Service (between 1.12.01-11.7.03).

Section 178BA Crimes Act 1900
Imprisonment for 1 year commencing 1/6/11 and expiring 31/5/12. 5 years imprisonment

(b)
Aggravated indecent assaults (victim under the authority of the offender) x 2 (victims [CA] on 21.2.03 & [RF] on 2.5.03).

Section 61M Crimes Act 1900
Imprisonment for 18 months on each count, to be served concurrently, commencing 1/12/11 and expiring 31/5/13. 7 years, SNPP 5 years

(c)
Maliciously Inflict Grievous Bodily Harm with Intent (victim Carolyn De Waegeneire on 8.8.02).

Section 33 Crimes Act 1900
Non parole period imprisonment for 1 year (expiring 31/5/13), with a parole period 1 year 6 months expiring 30/11/14.Eligible for release to parole on expiration of NPP. 25 years, no SNPP

The total effective sentence accordingly was a term of imprisonment of 3 years and 6 months, comprising a non-parole period of 2 years and a balance of term of 1 year and 6 months. Accordingly the respondent is eligible for release to parole on 31 May 2013.
The respondent entered a guilty plea to the offence under s 178BA Crimes Act 1900 ("obtain benefit by deception"), was tried and convicted by a jury in respect of the offence under s 33 of the Crimes Act 1900 ("maliciously inflict grievous bodily harm") and was convicted in a judge alone trial in respect of the two offences under s 61M of the Crimes Act 1900 ("aggravated indecent assault"). The Crown submissions summarised the position as follows:
"(1) The respondent pleaded guilty to the 'obtain benefit by deception' charge on 8 February 2011, such deception being that he represented that he was entitled to perform the clinical practice of obstetrics, and the advantage was the appointment to the position of VMO Obstetrician and Gynaecologist at Bega and Pambula District Hospital;
(2) The respondent was convicted by a jury on the 'maliciously inflict grievous bodily harm' charge on 10 March 2011, being the medically unnecessary surgical removal of the patient's labia majora, labia minora, clitoris and perineum, of the patient referred to as Ms De Waegeneire on 8 August 2002; and
(3) The respondent was convicted by the trial judge, his Honour Woods DCJ, of the 'indecent assault' charges on 14 April 2011, each being the unnecessary touching of the clitoris of the patient during two separate medical examinations on 21 February 2003 and 2 May 2003."
The Director relied upon six grounds of appeal in the following terms:
"(1) His Honour erred in his characterisation of the grievous bodily harm offence and imposed a sentence that is manifestly inadequate.
(2) His Honour erred by failing to fix a non-parole period for each of the offences of aggravated indecent assault under authority contrary to s 61M(1) Crimes Act 1900 given a standard non-parole period has been prescribed.
(3) On each of the offences of aggravated indecent assault under authority contrary to s 61M(1) Crimes Act 1900, his Honour imposed a sentence that is manifestly inadequate.
(4) His Honour imposed a sentence for the obtain benefit by deception offence that is manifestly inadequate.
(5) His Honour erred by imposing sentences which were manifestly inadequate by reason of his undue emphasis on the Respondent's asserted depression.
(6) His Honour erred in failing to adequately accumulate the sentences, leading to a manifestly inadequate total sentence and manifestly inadequate total non-parole period."
In relation to ground (6) the Crown submitted that the way in which the sentencing judge structured the sentences itself manifests sentencing error. The effect of that error, it was contended, contributed to the manifest inadequacy of the total or aggregate sentence.
In its Written Submissions at [33], the Crown observed that the non-parole period fixed by the sentence imposed for the 'grievous bodily harm offence', namely a period of 12 months, was subsumed within the sentences imposed for the two indecent assault offences which themselves were concurrent with each other (commencing 1 December 2011 and expiring on 31 May 2013). The latter two offences, the Crown observed, were unrelated indecent assault offences. Finally, it was noted that a period of only 6 months was solely referrable to the 'obtain benefit by deception' offence: Crown Written Submissions at [34].
I will shortly turn to consider each ground of appeal below.

Summary of Subjective Factors

The learned sentencing judge referred to a number of subjective matters in the course of his sentencing remarks. They included the following evidence and findings:
The respondent was born in 1950. He excelled academically both at high school and at university, graduating with honours. His initial practice as a specialist in obstetrics and gynaecology was considerably successful. Up until the early 1990's he had done much valuable medical work, helping mothers and families in crises and had saved lives: ROS 23.
At some point in the early 1990's the respondent suffered a breakdown involving a major depressive illness. Dr Stella Dalton, his treating psychiatrist, referred to him experiencing a personality change which was apparent both at home and at work from the onset of the illness in 1991: ROS 22.
In 1997 the Professional Standards Committee of the NSW Medical Board ("PSC") upheld a number of complaints about the respondent's work as an obstetrician and gynaecologist in the early 1990's. The complaints concerned both the quality of his work and the manner in which he communicated (or failed to communicate) with patients: ROS 3.
The PSC found not only unsatisfactory professional conduct but also that the respondent was "impaired" in his mental capacity to practice medicine by reason of personality and relationship problems, and depression: ROS 8
The PSC ordered that the respondent cease the clinical practice of obstetrics, whilst permitting him to continue to work as a gynaecologist under various conditions including working under supervision, continuing in psychiatric treatment and taking appropriate medication: ROS 9.
The respondent continued to consult his treating psychiatrist, Dr Stella Dalton. When he found his professional and family life in Sydney too difficult he moved to Bega and set up practice as a gynaecologist: ROS 9.
The evidence of the respondent's wife was that notwithstanding the move to Bega, the stress he was under in his working environment was just as bad, if not worse, than it had been in Sydney: ROS 12.
The respondent became beset by his own medical problems in the late 1990's. He experienced a urinary problem requiring emergency surgery which resulted in impotency. He was diagnosed with insulin dependant diabetes. He experienced some difficulty with his sight: ROS 12.
The respondent was forced into bankruptcy in 1999 and he separated from his wife, who was left with their children, around 1999 to 2000: ROS 23.
The respondent had shown no contrition for his misconduct: ROS 12.
He had no previous convictions. This would be his first prison sentence and would almost certainly be served wholly in isolation: ROS 24.

Ground 1

His Honour erred in his characterisation of the grievous bodily harm offence and imposed a sentence that is manifestly inadequate.

Findings on Sentence

In accordance with authority it is the duty of a sentencing judge, following a guilty verdict by a jury at trial, to determine the facts relevant to sentencing. Some facts will have emerged in evidence at the trial whilst others may only emerge in the course of the sentencing proceedings: R v Isaacs (1997) 41 NSWLR 374 at 377-378. In Cheung v The Queen (2001) 209 CLR 1 at 1011, the High Court (Gleeson CJ, Gummow and Hayne JJ), in relation to the verdict of a jury, observed:
"On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing the offender's culpability, and the proper measure of punishment. There are many cases involving a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing the offender's culpability is more difficult than that of determining his or her guilt."
The High Court in Cheung, supra at 1213, approved the summary of principles as stated by this Court in Isaacs, supra, that included:
"3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ..."
The High Court then observed (at 14):
"... the required consistency is with the verdict, ie the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is expressed, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict."

Submissions In Relation to the Section 33 Offence

(i) Crown Submissions

In relation to the offence of maliciously inflict grievous bodily harm with intent under s 33 of the Crimes Act (the most serious of the offences with which the respondent was charged), the Crown submitted that the learned sentencing judge fell into error in the following respects:
(1) That the respondent was sentenced upon the basis that he did not deliberately intend to perform an unnecessary and unjustified operation, but believed wrongly, but honestly, that he should perform it. The Crown contended that this finding was inconsistent with the verdict of the jury (see below) with the result that the assessment of the objective seriousness of the offence and the respondent's moral culpability was undertaken on an erroneous basis.
(2) That undue regard was given by the sentencing judge to the applicant's subjective case and the asserted mitigating effect of severe illness with the result that the sentence for the offence failed to reflect its objective seriousness.

CA said that at one point during the examination she felt something cold inside her vagina. When asked if she knew what it was she said:
"A. I thought it was a new device or a machine. I don't use them, but I've seen like dildos with the little clitoris-rubbing thing that it's got on them. I had an impression that it might have been something like that"
Q. Did you look down to see what it might have been in that area?
A. No, because when I realised that he wasn't going to stop and that was no device, I just shut my eyes, I wriggled ..." (T89 - 90).
Reference was also made to CA's evidence of being "pleasured" and saying "I've been stimulated before and I know how it feels". These need to be seen in context. The first appeared in answer to a question concerning her reason for not saying anything to the applicant at the time of the incident; she responded:
"I thought the shock of it. I wasn't there to be pleasured in any sort of way. I was there for a Pap smear and a Pap smear only and the things that I was feeling I knew wasn't right" (T90).
The context of the other response was that CA was being asked about whether the applicant used a glove, or gloves. She said:
"Well, when I felt the scrape and my eyes sort of come back in focus, he had no gloves then, and it would have been - been to quick for him to put some on. When my clitoris was getting rubbed there was no feeling of rubber or anything like that. I've been stimulated before and I know how it feels" (T91).
In each of these responses it would seem that CA was doing her best to convey to the court her perceptions of what she saw and felt. I do not see any reason to take an adverse view about her credibility on this account.
It was submitted that CA had "a bone to pick" with the applicant (AWS [110]). She demonstrated anger towards him whilst she was giving evidence, apparently as a result of the lasting ill-effects of the tubal ligation surgery. It was not suggested that this motivated her to give dishonest evidence and, beyond speculation, it is not apparent how it bore upon the reliability of her evidence.
Reliance was placed upon the applicant's notes generally as providing a "contemporaneous and reliable record of events as they took place" (AWS [111]). Where there is conflict between the oral evidence and the notes, clearly the notes should be preferred. The notes are, of course, silent on the question whether the applicant did, or did not, indecently assault CA.
A number of submissions were made concerning the fact that CA did not raise her complaint about the applicant's conduct until 2008 when others had done so.
It was contended that it seemed "that the complainant, at the time of the examination, did not know or believe that the touching was other than in the course of the gynaecological examination" (AWS [10](iii)). There is no evidence to support that proposition; indeed, the evidence is to the contrary. CA said that when the applicant put his hand on the top of her vagina she thought "there was no need to do that" (T89.4). She said that, when the applicant was rubbing her clitoris, "I thought I was being masturbated" (T90.15). She did not say anything to the applicant about what he was doing because of "the shock of it" (T90.25). She also said, "it was a feeling of disbelief that - that this wasn't happening, because there's - it wasn't right" (T91.5).
It is true, as the submissions for the applicant observe (AWS [10](x)), that when CA did raise her complaint in 2008 it was in the context of a substantial amount of publicity concerning the applicant.
CA's evidence about being prompted to complain after seeing an article on the internet concerning the applicant has been referred to earlier. After she disclosed to her husband what the applicant had done she contacted a detective at Bega. She completed what she described as a "declaration form of what happened" which was sent to Bega police (CA was living interstate at the time). Subsequently an officer suggested that she should engage a solicitor. Ultimately she was referred to a firm of solicitors who she instructed to act for her in a medical negligence action concerning the tubal ligation surgery the applicant had performed (T94).
CA was asked if she had spoken to any of the applicant's patients. She said she had not, and added "[t]he only one I've seen which has been on the computer or something would be [the complainant in the first trial], I wouldn't know any others" (T94).
The reasons given by CA for not saying anything to the applicant about his conduct have been noted earlier. Her reasons for not complaining immediately to her husband or the police bears noting:
Q. Did you say anything to him about what happened?
A. Not just what happened no. He just asked me how things went and I just said, all that was different and I'd left it as that. In my mind I thought it was just me playing tricks, that - but in reality I knew that it wasn't.
Q. Did you consider making any formal complaint about him at that time?
A. As much as I could've, I knew no-one would've believed me. If someone come up and said, oh I've just been to the doctor and he's just rubbed my clitoris, no-one's going to believe you. At that time I wasn't doing real flash with the police down there [later revealed to have something to do with a custody dispute with her former husband], so I knew that they wouldn't have believed me. There was a few things happening down that way.
Q. Yes?
A. So I just kept it to myself (T91-92).
It is well recognised in the criminal law that victims of sexual assaults may not complain immediately or even within a short period of time about what has occurred to them. There is statutory recognition of this in s 294 of the Criminal Procedure Act 1986 which, inter alia, requires trial judges to inform juries that "there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault": s 294(2)(b).
The trial judge concluded as follows on the question of delayed complaint:
What has occurred here, as I see it, is that [CA], like many victims of sexual assault, have, for good reasons as understood by them at the time, restrained themselves from immediate complaint. Sometimes, common sense tells us, this occurs because the event is shocking and concerns intimate matters the public discussion of which is difficult, and the very thought of which causes apprehension. I believe this occurred in relation to [CA]. My view is that the publicity about the accused, which erupted in 2008, psychologically allowed [CA] to unburden herself of matters about which she had privately been concerned over the years (AB 1384).
A reading of the transcript of the entirety of CA's evidence indicates that this was a finding which was well open; the trial judge, of course, had the additional advantage of having seen her give evidence.
The delay in complaint by CA had a number of ramifications. These included that the applicant was disadvantaged in defending himself, a matter dealt with under ground 4. They also included that CA's memory of matters of detail was imperfect. Whether her memory of the nature and duration of the touching by the applicant of her clitoris was imperfect is the critical issue. Her memory of peripheral detail may have a bearing upon that, but need not be determinative.

Conclusion in relation to the complainant CA

I have had regard to CA's evidence as a whole, and have taken into account the evidence of the applicant and other independent evidence as it bore upon the accuracy of CA's account, and the evidence concerning the applicant's character. In the end I am not persuaded that it was not open to find beyond reasonable doubt that the applicant indecently assaulted CA in the manner alleged.
Where there was conflict between her account and other evidence which may be accepted as reliable (for example, correspondence between Dr Salisbury and the applicant and the applicant's contemporaneous clinical notes), it concerned matters which were, in context, insignificant. CA's choice of language to describe her perceptions of what she saw and felt does not justify criticism of her and does not adversely affect her reliability. The delay in complaint was the subject of a perfectly acceptable explanation. There is no evidence of CA being influenced by the publicity that prompted her complaint to say anything in her evidence that she had not actually experienced. There is no suggestion of collaboration with other complainants or contamination by having heard the detail of their complaints.
One thing that does emerge from a reading of the transcript is that CA stridently maintained an accurate recollection of something that one would expect a woman never to forget, that she was indecently assaulted in a more than momentary, transient or incidental way by her gynaecologist whilst alone with him in his consulting room. There is no merit in the suggestion that what might have been a momentary touching had, in the mind of the complainant between 2003 and 2008 become mistakenly, albeit innocently, a touching for a significantly longer period. It was not just a touching that she described; she felt rubbing which prompted her to think she was being masturbated.
It was well open to the trial judge to be satisfied of the guilt of the accused in relation to the indecent assault of CA. I am satisfied to that standard myself.

Count 5 - RF

As with count 3, the evidence plainly supports a finding that RF was under the authority of the applicant at the time that the indecent assault was alleged to have occurred.
At trial, the Crown Prosecutor asked RF whether she ever gave consent to the applicant to touch her "in the area of the clitoris or on the clitoris?" She replied
I don't know what to answer there because he said that I needed to have an ultrasound, so I agreed to having an internal ultrasound. So am I agreeing to him touching me like that or not, I don't know? I didn't like the way he touched me but like I said, I don't know if he was meant to have his hand and touching me the way that he did to get the instrument in... (T177)
RF's uncertainty in her response does not demonstrate that she consented to deliberate touching for sexual gratification. Her consent was limited to the applicant performing a gynaecological examination and it is of no import when considering the element of non-consent that RF was unsure of what that entailed.
The critical issue in relation to count 5 is again whether the touching that occurred went beyond what was involved in, and incidental to, the examination to which she had consented and was of such a nature and duration as to constitute an indecent assault.
The evidence RF gave as to the nature and duration of the contact the applicant made with her clitoris has been set out earlier. At one point she said that he was "rubbing it" for what "felt like a long time". Again, the evidence of Drs Pesce and Korda supports a conclusion that, if that was an accurate account of the touching, what occurred could not have been contact incidental to the gynaecological examination.
The applicant's case in relation to RF was that he had no memory of her consultations but that he denied having deliberately touched her clitoris; any touching that occurred would have been inadvertent with the manipulation of opening the labia (T351). It was submitted that, even if RF was honest in her belief of what occurred, that belief was mistaken and had been formed later, when she made her complaint and was aware of other allegations against the applicant (AWS [117]). It was submitted that she remained equivocal about whether the contact had been indecent, and that her account exaggerated the nature and duration of any touching.
The Crown argued that the surrounding circumstances of the examination pointed towards the touching being indecent (CWS [93] - [96]). They included RF's evidence that the applicant had told her to "rip your knickers off", that he had helped her to remove her pants, and that she was not provided with a towel or sheet to cover herself so that she just used the clothes she had removed instead (T168 - 169). The applicant did not remember what he said but his usual practice had been to say something like "Well time to get your trousers off now" as he was getting the ultrasound machine and that a towel or sheet would be put across the patient's thighs or pubic hair (T351).
If RF's recollection of such matters was correct it indicates a poor bedside manner of the applicant that would clearly have made her uncomfortable. But it does not advance the Crown's case that the applicant deliberately touched her clitoris for his own sexual gratification.
RF's evidence that the applicant was "rubbing" her clitoris for what "felt like a long time" represents the Crown case taken at its highest.
As to the nature of the touching, she also said she did not know "whether he was doing that just to try and open me up" (T170) and that she did not know "if he was meant to do that to make it [the ultrasound probe] go in" (T172).
In cross-examination she agreed that the position of his hand was consistent with him "trying to separate your genital area, on either side" (T183). She also said "I don't know if that's how it was meant to have his hand and do what he was doing to get things in" (T184). She did not know if it was a knuckle, his finger or his thumb but "something rubbed across my clitoris" (T184) and in re-examination she said "I could just feel it like going across" (T193). Such responses raise the possibility of the touching having been incidental and inadvertent rather than deliberate.
It is understandable that RF could not be precise about the duration of the touching, given that she was giving evidence about it eight years after the event. In addition to saying it "felt like a long time" she also said "it was just quickly like it didn't go on for my whole internal ultrasound or anything like that" and "it felt like a long time but I don't know" (T172) and "I don't know if it was for a minute, two minutes, three minutes. It wasn't like 20 minutes" (T183). Such imprecision in her recollection does not assist a confident finding that it was other than incidental touching.
A matter of particular concern is RF's subsequent interactions with the applicant. It leaves open the impression that, whilst she may well have felt uncomfortable about what occurred during the examination, she did not feel a sense of violation of her sexual integrity.
RF said that it was only after she perceived a sexual reaction from the applicant when he held her during the administration of the spinal block, prior to her hysterectomy surgery, that she decided that she never wanted to see him again. Another factor bearing upon that decision was "the way he looked in my pants in the bed [when she was still in hospital in the days following the operation] to see what the bleeding was like on my pad. And yeah I felt really uncomfortable with that too" (T187).
RF was adamant that she did not see the applicant again for those reasons (T187). However, the objective evidence (the applicant's contemporaneous notes) indicates that the initial consultation and examination was on 2 May 2003; she returned to his rooms on 6 May; and she was admitted to hospital for the surgery on 8 May. They also indicate that she returned to his rooms on 20 May.
In considering this issue I have taken into account that the applicant was, apparently, the only gynaecologist on the South Coast between Nowra and the Victorian border. Patients in that area who required gynaecological services were faced with the choice of seeing the applicant or travelling significant distances to see someone else. It is understandable then why a woman who felt uncomfortable about the conduct of the applicant nevertheless continued to consult him. However there is a notable difference in the response of CA, who was only prepared to see the applicant again because other medical professionals would be present, and RF who returned twice to see him alone in his rooms.
RF's response to the question as to what prompted her to come forward with her complaint in 2008, five years after the event, is another matter that does not inspire confidence in her account. I have earlier referred to the experience of the criminal law of victims of sexual assault not feeling able to disclose their experience until a considerable period of time has elapsed. That is again acknowledged. Troubling, however, was RF's statement that it was only after hearing of another complainant coming forward that she felt "well maybe it wasn't my imagination" (T176).
Having considered the totality of the evidence of RF and all of the evidence in the trial relating to it, I am left with a sense of unease. Whilst I have no hesitation in accepting that her evidence was truthfully given, it lacks the degree of detail and certainty that would support a finding beyond reasonable doubt that the accused was guilty of indecent assault. The evidence is insufficient to exclude as a reasonable possibility that what she perceived was a touching of her clitoris that was transient and incidental to the gynaecological procedure the applicant was performing.
The Crown placed much emphasis upon the fact that the trial judge had the advantage of seeing and hearing the witnesses give their evidence whilst this Court is limited to reading the words on the pages of the transcript. The doubt that I have is concerned with the sufficiency of evidence. The advantage of the trial judge is incapable of resolving a doubt of that nature.
The conviction and sentence for this offence should be quashed and a verdict of acquittal entered.

Ground 2 - The trial judge erred by equating and/or conflating an assessment of the witnesses' honesty with an assessment of the witnesses' reliability and accuracy.

Ground 3 - The trial judge erred by placing too much reliance on the complainants' assessment years after the events as to how long they were touched on the clitoris in determining whether the contact with the clitoris could have been "inadvertent".

These grounds were dealt with together in the applicant's written submissions and closely resemble the thrust of the applicant's argument in favour of ground 1. Under ground 2, it was submitted that the trial judge erred by failing to distinguish between the honesty of the complainants giving evidence and the accuracy of that evidence, given years after the events occurred. The applicant suggested that while his Honour had given consideration to, and ultimately dismissed, the influence of the 'bandwagon effect' on CA and RF, he had not specifically rejected the possibility that they had been influenced by suggestion from other allegations against the accused (AWS [124]). There is no merit in this submission.
When delivering his verdict on count 3, his Honour said:
It is difficult judgment to be made in cases such as this whether, due to publicity, the complainant [CA] is ventilating a genuine concern, or whether there is a reasonable possibility that the complainant is merely following a noisy bandwagon, or being influenced by the suggestion arising from allegations of other alleged misbehaviour...
Conscious as I am of the 'bandwagon effect' argument, I am satisfied beyond reasonable doubt that it is not the explanation for this allegation. (Verdict and reasons 14-15) (Emphasis added)
The same observation was repeated in relation count 5 concerning RF (Verdict and reasons 41).
In his directions on law, the trial judge made particular reference to the "possibility that distortion in human recollection through delay affects the reliability of what the complainants now claim to recall." While his Honour specifically considered the honesty of both CA and RF, there is nothing to suggest that he conflated this with their reliability and accuracy.
As to ground 3, nothing specific in the reasons for verdict were identified which would support the contention that the judge placed "too much reliance" upon the matter identified in the statement of the ground and I can detect nothing myself.

Both these grounds fail.

Ground 4 - The trial judge erred in his approach to the delay in complaint and forensic disadvantage suffered by the applicant

The final ground of appeal is that the trial judge erred when approaching the issue of delay in the complaints of CA and RF. In both cases, the incidents occurred in the first half of 2003, while the complaints to police were not made until 2008 and the two women did not give evidence at trial until March 2011.
In relation to CA, the trial judge said in his reasons for verdict
"I carefully bear in mind that the delay in complaint in this case has led to a situation where the accused cannot recall the women in question, so that he suffers the disadvantage of his lack of distinct recollection of matters which might possibly assist his defence. However, I expect that in any event his case would have been substantially the same: a denial that the conduct occurred" (VR17) (Emphasis added).
His Honour adopted these comments when considering the count concerning RF (Verdict and reasons 39). The applicant submitted that this approach was incorrect at law.
The Crown accepted that s 165B of the Evidence Act 1995 does not apply in a trial without a jury and so the common law principles apply: s 165B(1). Where there is a delay in complaint, the judge is to warn a jury that an accused may suffer a very real forensic disadvantage as a result: Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. A judge sitting alone must similarly heed the same warning: s 133, Criminal Procedure Act; Fleming v R [1998] HCA 68; (1998) 197 CLR 250 at [31]-[33] considering an earlier version of the Criminal Procedure Act.
In support of this ground of appeal, the applicant relies on the statement of Gaudron, Gummow and Callinan JJ in Crampton v The Queen at [45]. Referring to the warning in Longman, their Honours said that simply because an accused's defence is an outright denial of the allegations against him, that will not be a reason for dismissing the relevance of the forensic disadvantage that may result from a delay in complaint.
Counsel identified a number ways in which the applicant may have been disadvantaged by the significant delay between the alleged incidents and complaints. They included that he may have been able to recall the patients or the examinations, he may have remembered details that would explain the complainant's misapprehension, and he may have not had to rely on his notes.
It was submitted that the trial judge erred by qualifying the impact of the delay in complaint on the basis that the defence case would have been substantially the same, regardless of the delay. But the submission cannot be accepted. In raising this ground, the applicant fails to note the extensive directions the trial judge gave himself in relation to delay the day before delivering his verdict. His Honour warned, in part,
I must bear in mind the full effects of this delay on the ability of the [applicant] to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish reasonable doubt about guilt...
After noting the specific forensic difficulties the delay would have caused the applicant, his Honour continued
These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either testing the prosecution evidence or in bringing forward evidence to establish a reasonable doubt about his guilt or both of these things...
Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence.
These directions identify the forensic difficulties faced by the accused and the warning is in accordance with the requirements of Longman.
Furthermore, the statement of the trial judge in his reasons for verdict specifically adverts to this disadvantage that the applicant had suffered due to the delay in complaint and it exposes, albeit briefly, his reasoning. Read together with the directions on law they demonstrate that his Honour was alive to the disadvantage faced by the accused and took his own warning into account.
This ground is without merit and must fail.

Conclusion with respect to conviction for aggravated indecent assault

I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed in respect of conviction for aggravated indecent assault of CA.
3. Appeal allowed in respect of conviction for aggravated indecent assault of RF. Conviction quashed and verdict of acquittal entered.
THE COURT: The orders of the Court are as follows:
1. Application for leave to appeal against conviction for maliciously inflicting grievous bodily harm with intent (s 33 of the Crimes Act) granted.
2. Appeal against conviction for maliciously inflicting grievous bodily harm with intent dismissed.
3. Application for leave to appeal against conviction for two counts of aggravated indecent assault (s 61M(1) of the Crimes Act) granted.
4. Appeal against conviction for aggravated indecent assault (complainant CA) dismissed.
5. Appeal against conviction for aggravated indecent assault (complainant RF) allowed; conviction quashed; and verdict of acquittal entered.
6. Crown appeal against sentence allowed.
7. Sentences imposed in the District Court on 1 July 2011 set aside.
8. The respondent be re-sentenced as follows:
(i) In respect of the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013.
(ii) In respect of the offence of aggravated indecent assault of CA under s 61M(1) Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013.
(iii) In respect of the offence of maliciously inflict grievous bodily harm with intent under s 33 Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years to expire on 30 November 2016.
9. Specify that the first date upon which the respondent will be eligible for release on parole will be 30 November 2014.
**********

Case Title:	Reeves v R; R v Reeves
Medium Neutral Citation:	[2013] NSWCCA 34
Hearing Date(s):	13 August 2012
Decision Date:	21 February 2013
Before:	Bathurst CJ at [1], [426]; Hall J at [109], [426]; R A Hulme J at [284], [426]
Decision:	1. Application for leave to appeal against conviction for maliciously inflicting grievous bodily harm with intent (s 33 of the Crimes Act) granted. 2. Appeal against conviction for maliciously inflicting grievous bodily harm with intent dismissed. 3. Application for leave to appeal against conviction for two counts of aggravated indecent assault (s 61M(1) of the Crimes Act) granted. 4. Appeal against conviction for aggravated indecent assault (complainant CA) dismissed. 5. Appeal against conviction for aggravated indecent assault (complainant RF) allowed; conviction quashed; and verdict of acquittal entered. 6. Crown appeal against sentence allowed. 7. Sentences imposed in the District Court on 1 July 2011 set aside. 8. The respondent be re-sentenced as follows: (i) In respect of the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013. (ii) In respect of the offence of aggravated indecent assault of CA under s 61M(1) Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013. (iii) In respect of the offence of maliciously inflict grievous bodily harm with intent under s 33 Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years to expire on 30 November 2016. 9. Specify that the first date upon which the respondent will be eligible for release on parole will be 30 November 2014.
Catchwords:	CRIMINAL LAW - appeal - conviction - maliciously inflicting grievous bodily harm with intent - Crimes Act s 33 - medical assault - whether lawful cause or excuse - whether jury misdirected as to consent -correct direction as to consent - operation of Criminal Appeal Act s 6(1) proviso - whether accused deprived of reasonable chance of acquittal CRIMINAL LAW - appeal - conviction - aggravated indecent assault - Crimes Act s 61M - whether verdict unreasonable or unsupportable on evidence - reliability of complainants testimony - relevance of delay CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - objective seriousness - mitigating factors - whether undue weight placed on subjective factors - whether structure of sentences such that total effective sentence manifestly inadequate
Legislation Cited:	Crimes Act 1900 Crimes Amendment Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995 Medical Practice Act 1992
Cases Cited:	AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Appleton v Garrett [1996] PIQR P1 Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 86 ALJR 549 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Chatterton v Gerson [1981] 1 QB 432 Cheung v The Queen (2001) 209 CLR 1 Collier v R [2012] NSWCCA 213 Cooper v The Queen [2012] HCA 50 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Darwiche v R [2011] NSWCCA 62 Dinsdale v The Queen [2000] 202 CLR 321 Eagle v Prosser [1999] NSWCA 166 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Fleming v R [1998] HCA 68; (1998) 197 CLR 250 Freeman v Home Office [1984] 1 QB 524 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 Gilham v R [2012] NSWCCA 131 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McDonald v Ludwig [2007] QSC 28 Mulloy v Hop Sang [1935] 1 WWR 714 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Oudomvilay v R [2006] NSWCCA 275 R v Balakrishnan Arvind, (NCSCCA, 8 March 1996, unreported) R v Benetiz [2006] NSWCCA 21; (2006) 160 A Crim R 166 R v Champion (1992) 64 A Crim R 244 R v Hammoud (2000) 118 A Crim R 66 R v Hemsley [2004] NSWCCA 228 R v Isaacs (1997) 41 NSWLR 374 R v Israil [2002] NSWCCA 255 R v Myers [2002] NSWCCA 162 R v Wilson [2005] NSWCCA 219 R v Wright (1997) 93 A Crim R 48 Reibl v Hughes [1980] 2 SCR 880 Richards v Rahilly [2005] NSWSC 352 Rogers v Whitaker (1992) 175 CLR 479 Savvas v The Queen (1995) 183 CLR 1 Sidaway [1984] 1 QB 493 Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 TC v R [2009] NSWCCA 296 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365 Wilmot v R [2007] NSWCCA 278 Winn v Alexander [1940] O.W.N 238
Texts Cited:	Gillies, Criminal Law, 4th ed (1997), Thomson Reuters Somerville "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740 Waller & Williams, Criminal Law Text and Cases, 11th ed (2009) LexisNexis
Category:	Principal judgment
Parties:	Regina Graeme Stephen Reeves
Representation
- Counsel:	Counsel: Mr P Hamill SC with Ms S Beckett (Applicant/Respondent) Mr P G Ingram SC with Ms H Wilson (Respondent/Applicant)
- Solicitors:	Solicitors: Legal Aid Commission Solicitor for Public Prosecutions
File Number(s):	2008/77882
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Woods QC DCJ
- Date of Decision:	01 July 2011
- Court File Number(s):	2008/77882
Publication Restriction:	No

OFFENCE	SENTENCE IMPOSED	MAXIMUM PENALTY
(a)	Obtain benefit by deception from Southern Area Health Service (between 1.12.01-11.7.03). Section 178BA Crimes Act 1900	Imprisonment for 1 year commencing 1/6/11 and expiring 31/5/12.	5 years imprisonment
(b)	Aggravated indecent assaults (victim under the authority of the offender) x 2 (victims [CA] on 21.2.03 & [RF] on 2.5.03). Section 61M Crimes Act 1900	Imprisonment for 18 months on each count, to be served concurrently, commencing 1/12/11 and expiring 31/5/13.	7 years, SNPP 5 years
(c)	Maliciously Inflict Grievous Bodily Harm with Intent (victim Carolyn De Waegeneire on 8.8.02). Section 33 Crimes Act 1900	Non parole period imprisonment for 1 year (expiring 31/5/13), with a parole period 1 year 6 months expiring 30/11/14.Eligible for release to parole on expiration of NPP.	25 years, no SNPP