Reeves v R; R v Reeves

Link copied
Case Copied 77 min read

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
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Reeves v R; R v Reeves and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] NSWCCA 34
Decision Date

CaseChat Overview and Summary

In the case of Reeves v R; R v Reeves, the applicant, a medical practitioner, was convicted of grievous bodily harm with intent and aggravated indecent assault. The grievous bodily harm offence related to an operation performed on the complainant, Ms Carolyn De Waegeneire, which resulted in the removal of her genitalia, including her labia and clitoris. The primary legal issues before the court were whether the jury was misdirected regarding the issues of lawful excuse, consent, and intention, and whether the trial judge's direction on consent was appropriate for a criminal prosecution. The applicant argued that the trial miscarried due to erroneous jury directions, while the Crown contended that any misdirection did not result in a miscarriage of justice.

The court examined the trial judge's directions to the jury concerning consent and lawful excuse. It was noted that the trial judge had provided detailed instructions on the requirements for informed consent, including the necessity for the medical practitioner to adequately explain the purpose of the operation, the parts of the body to be cut or removed, the possible major consequences of the operation, and any available alternative treatments. The court found that the trial judge's directions on consent were appropriate and aligned with the legal requirements for a criminal prosecution. The applicant's argument that the directions were suitable for a civil suit rather than a criminal case was rejected.

The court concluded that there was no miscarriage of justice, as the jury had been properly directed on the legal principles of consent and lawful excuse. The applicant had not been deprived of a reasonable chance of acquittal due to the trial judge's directions. Consequently, the appeal against conviction for the grievous bodily harm offence was dismissed. The court held that the jury's verdict was supported by the evidence, and the trial judge had correctly applied the law in directing the jury on the issues of consent and lawful excuse.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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 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".

Ratio Decidendi

Legal Principle Established

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'." 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."