Reeves v The Queen

[2013] HCATrans 258

[2013] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S44 of 2013

B e t w e e n -

GRAEME STEPHEN REEVES

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 OCTOBER 2013, AT 10.14 AM

Copyright in the High Court of Australia

MR P.J.D. HAMILL, SC:   If it please the Court, I appear for the applicant with my learned friend, MS S.F. BECKETT.  (instructed by Legal Aid (NSW))

MR L.A. BABB, SC:   I appear for the respondent, your Honour.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Hamill.

MR HAMILL:   Your Honours, we have provided this morning an outline of oral argument of three pages and I trust your Honours have had the opportunity of reading that, or should I pause while your Honours get that opportunity?

FRENCH CJ:   Perhaps if you can just pause for a moment, we will quickly look through it, Mr Hamill.  Just take a seat.  Yes, Mr Hamill.

MR HAMILL:   Thank you, your Honours.  Before I proceed to follow through the scheme of that outline can I firstly state in very short nutshell terms the reasons that we respectfully submit that it is an appropriate case for the grant of special leave.  The outline of submissions on the special leave application is in the application book at 1462.  What we submit is that the case raises a number of questions of general importance relevant to criminal liability, the function of State’s Courts of Criminal Appeal or Courts of Appeal in both conviction and sentence appeals as well as a matter of sentencing principle of general importance.

We respectfully submit that special leave should be granted both to lay down principles of general application as well as to correct the errors that we say are manifest in this particular case.  In terms of that individual case we respectfully invite the Court to accept that this applicant was effectively denied a trial in accordance with the law and that the manner in which the trial was conducted meant that what were called in some of the cases the essential presuppositions of the trial were not met and the jury ultimately did not decide the issues upon which it was empanelled to decide.

FRENCH CJ:   What is the issue of principle that you would identify in respect of the Court of Criminal Appeal’s approach to the application of the proviso?

MR HAMILL:   It is, perhaps, in two parts.  First, the principle of criminal law that applies in what the learned Chief Justice called “medical assault cases”, that is to say, when it is in issue whether the act was unlawful and that issue is raised factually because it is a surgical procedure or some other medical procedure the question is when consent is vitiated or where the prosecution has proved, in effect, that there was no consent.  So that is, I suppose, the issue – theoretical issue or academic issue – but in terms of its application to a trial by jury where it will mostly arise, we say that the question of general importance is the question of what directions to the jury should be given.

FRENCH CJ:   My question is really directed to the approach to the application of the proviso.

MR HAMILL:   I see.  In respect of the proviso, we accept – as we must – that this Court has been active in terms of consideration of the proviso in many cases and many recent cases, but we do say that this case provides an example of one where there was a misdirection going to the root of the trial.  The Court has been at pains over a number of years, probably since the case of Weiss, if not before, to stress that it is not prepared to and it would be inappropriate to lay down some hard and fast rule as to the application of the proviso.  But what we do say is that where there has been a misdirection which goes to the elements of the defence, it is a rare case where it will be appropriate to apply the proviso.

FRENCH CJ:   Is that a question of principle or just a statement that this is not a rare case?

MR HAMILL:   We do submit that that is a question of principle.  It is perhaps a somewhat furry question of principle or proposition to put to the Court but what we would also say is that in proviso cases and, as I have said, the Court has dealt with a number of proviso cases which means that the special leave has been granted in a number of proviso cases, they will almost invariably arise out of the particular factual circumstances and history of the case.  There is nothing unusual about that.  All of the cases that have come up where the Court has granted special leave have been cases where the application of the proviso really turns on the nature of the error which was obviously identified in the court below in order to invoke the proviso.

CRENNAN J:   Are you saying this, that in essence this is a visitation case, most particularly because of cases like Wilde?  Is that the way you are putting it?

MR HAMILL:   Yes.  I mean, we ultimately say that apart from issues of principle that the Court should grant special leave to rectify the injustice to the particular individual but we do say that in doing that the case does, again, provide an appropriate case for guidance as to the application of the proviso.

GAGELER J:   So what guidance are you asking for?  What nuanced principle would you have us adopt?

MR HAMILL:   Well, I suppose in a sense it is a restatement of principle more than a new one and that statement being that there is a class of case and it is a class of case where there is not only misdirection but where that misdirection goes to the elements of the offence, or in some cases the defence conducted - and in many cases those two things are blurred, and this is one of them – that in such cases it is rare for a Court of Criminal Appeal - it should be rare for a Court of Criminal Appeal to apply the proviso and we rely on and invite the Court to restate - whether this is nuanced or not, I am perhaps not able to say - but to restate what was said in Handlen, and I will come to it and give your Honours the reference in due course, but it is to the effect that the jury did not decide the issue upon which it was empanelled to decide.

Now, in a sense, that is where issue is joined in a sense in this Court because what the respondent would put, and has put most starkly in its outline of oral submissions is that this was never a case about informed consent so that one of the critical questions in terms of the disposition of this application and appeal is whether or not it can truly be said that the misdirection and the conduct of the trial was such that it actually impacted on the result that the jury came to so that the prosecution says, well, this was never a case about informed consent, this was a case about whether the operation was justified and a case about whether he believed it was justified, or, if we are pressed to it, a case about whether or not the applicant had communicated and knew that he had communicated the particular part of the anatomy which was to be removed.

But we say that that submission ultimately cannot survive a proper analysis of the record - the whole of the record of the court below and we specifically rely upon the fact that plainly no one told the jury that this was not a case about informed consent because the one question it asked was a stark reminder that it was certainly focused on – or at least some members of it were certainly focused on the issue.  I will take your Honours to it straightaway because in a sense it is a critical piece of material that allows the Court to understand with complete certainty, in our submission, that the case was decided, or may have been decided, and really we do not have to go as far as to say it was decided, but it is possible it was decided based around the directions that were given on informed consent.  So, in volume 2 of the application book at page 890, the jury asks this question:

On page 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.

Then they ask for some transcript.  That, in our submission, could not make it clearer that the jury after, I think by that stage, about a day of deliberation or at least some of its member were focused on the issue that had been run throughout the trial. 

We do submit, just to finalise the nutshell summary of why we say special leave should be granted that there are cases of general application but also in terms of the individual case there is a series of problems with the Court of Criminal Appeal’s approach to the proviso that we will take your Honours through, such that it can be said that the Court should grant leave in the individual case. 

In terms of the – I am not sure if I took your Honours - and I should - on the question of general importance to what the learned Chief Justice said in application book 1354 which is volume 3 because the Chief Justice acknowledged at paragraph 72 that:

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.

Indeed, we have been unable and I do not think our opponents have been able to identify any other case where this issue of informed consent has been put to a jury in terms of a method by which consent in the criminal law might be vitiated or disproved. 

BELL J:   I understood that the Court of Criminal Appeal approached the matter on the basis that the statements in Rogers v Whitaker requiring the patient to be no more than informed in broad terms of the nature of the procedure was the test that the Court of Criminal Appeal identified and, as I understand it, you and the Crown are at one that that is the correct test?

MR HAMILL:   Well, certainly the latter part of that proposition is unquestionably true.  The Crown, in this Court, accepts the correctness of that proposition and the, if you like, inappropriateness of the directions given to the jury in this case.  We do submit that the question of whether the Court of Criminal Appeal was so conclusively adopting Rogers vWhitaker is rather more difficult. We start from the proposition that certainly the learned Chief Justice said at 83 that the three cases upon which we relied which were Rogers v Whitaker, Chatterton v Gerson and Reibl v Hughes – and I will come back to give your Honours references, they are all on our list – had not been challenged in the country – in this country.  That, his Honour went on, over the next few paragraphs at application book 1359, paragraphs 84 and 85, to, effectively, adopt that kind of language that your Honour Justice Bell has put to me, but that, finally, having said at 72, that:

There is little authority in this country as to the appropriate direction to be given to a jury –

and that is clearly a criminal case jury, his Honour then in 86 provides that guidance.  We say that it is significant that at 86 the words “in broad terms” nowhere appear.  So that the direction ‑ ‑ ‑

CRENNAN J:   I think to be fair one has to factor in paragraph 82 of what the Chief Justice was saying.

MR HAMILL:   Yes.

CRENNAN J:   As I understood it, you do not disagree with the first two sentences of what his Honour was saying at paragraph 82.

MR HAMILL:   No, no, your Honour.  I am not meaning to be unfair to his Honour because clearly one reading of the judgment is that there is an acceptance generally of those propositions that come out of Rogers vWhitaker. 

CRENNAN J:   But the nature of the procedure captures what is meant by “in broad terms” in this area of discourse.

MR HAMILL:   Yes.

CRENNAN J:   Is your complaint about his Honour adding “and extent”?

MR HAMILL:   Our complaint is twofold.

CRENNAN J:   Yes.

MR HAMILL:   Our complaint is that is part of it but certainly the addition of the words “and extent” changes the nature of the test and we submit that is a matter of importance, particularly if you are a medical practitioner or health care professional or surgeon making judgment calls on questions of extent every day.  But we also complain that in 86 where the general effect of a direction is provided there is nothing to say that a jury should be – and we say must be – directed that if the doctor or health care professional or surgeon advises the patient in broad terms of the nature of the procedure – and I underline “in broad terms” – that is a critical part of the direction.

CRENNAN J:   But “in broad terms”, or the nature of the procedure – sorry, just focusing on the nature of the procedure for a moment – in a sense that formulation can mask a radical version of an operation and a less radical version of an operation.  Do you not need something in the language which allows identification not only of the nature of the procedure but also the extent, if one takes the position that informed consent is not helpful in this context?

MR HAMILL:   We submit that either the word “extent” adds little or creates a relativity or questions of degree that we say should not be introduced in determining criminal liability - in particular, Rogers v Whitaker, although it did not deal specifically with “and extent”, but in determining criminal liability the concept of consent is, we just say, utterly different.

FRENCH CJ:   What difference does it make in this case between “nature” and “extent”?  What does “extent” add to an explanation that the particular organs were to be removed?

MR HAMILL:   It may in this case add not very much.  We concede that.  Indeed, we go further and we concede that if the case had been conducted on a simple basis, that in a consultation the applicant made representations to the complainant that he would remove, I think the words she used were “a small flap of skin” but in fact then performed a radical vulvectomy – I will assume your Honours understand what that means – then that ‑ ‑ ‑

BELL J:   I thought it was a simple vulvectomy.

MR HAMILL:   Sorry, I said “radical” - a simple vulvectomy, your Honour is quite right - the jury had been directed in terms of Rogers v Whitaker and accepted the prosecution case that we could not be here.  We do accept that and the words “and extent” in that context and the context of that difference may not be much, but as a matter of principle we do say that it matters a great deal.

My learned junior reminded me of the possibility that one goes in to have the tip of one’s finger removed, but a doctor removes the whole finger for reasons.  Now, a jury might well say the nature of that procedure was explained but the extent was not, but should that doctor be guilty of an assault or maliciously inflicting grievous bodily harm or malicious wounding?  We say no.

We say that whilst it may, in the particular factual circumstances of this case, not make a huge difference, we still submit that that passage remains in effect on the books in New South Wales as guidance to trial judges in circumstances where there is no other guidance in criminal cases.  It was those cases upon which reliance was placed were civil cases of - where the distinctions between trespass to the person, battery as against negligence were considered.  We say the judgment is not entirely clear that those principles are imported into the criminal law.

BELL J:   But the Court of Criminal Appeal found that the trial judge erred by a direction that referred to the concept of informed consent.  At paragraph 82, application book 1358 the Court said:

It should be accepted that consent requires more than mere formalistic acquiescence to the proposed medical procedure.

Then the Court went on to take the terms of Rogers v Whitaker, with which, as I understand it, you do not cavil.

MR HAMILL:   No, that is correct.

BELL J:   So that there one has in paragraph 82 of the Court of Criminal Appeal’s judgment a statement of the test in terms that you and the Crown both commend.  The real issue in this application is surely the proviso.

MR HAMILL:   Well, we were asked the same question when the matter was in Sydney on the special leave application and we conceded that ultimately it did, and we did appear to win the battle, as it were, in terms of the directions in the court below, but we say that to some extent the – if your Honours go over the page to 1360 and paragraph 88 is where his Honour the learned Chief Justice made the clear finding that there was a misdirection.  His Honour goes on to say that:

The initial part of the direction –

and then his Honour quotes it –

may not have constituted a misdirection although the word “informed” tends to obscure the issue.

Now, what we say about that is that the insertion of the adjective “full” extent takes this even further away from the formulation in Rogers v Whitaker - “broad terms of the nature” of the operation.  Now, we may have lost “broad terms” and we have added “full” to “extent” and his Honour not categorically say that that direction is wrong and again, even though it is said that “the word ‘informed’ tends to obscure the issue” the language in Rogers v Whitaker, to which I will be taking your Honours presently, is in very strong terms that this concept ought not to enter the debate, and yet his Honour the Chief Justice says that that may not have been a misdirection.  So, yes, one has to ‑ ‑ ‑

FRENCH CJ:   It depends upon what content you give to the word “informed” in a particular case.  If it is just informed as to the broad nature of the procedure then ‑ ‑ ‑

MR HAMILL:   Yes, that might be right, although there was a lot more in this case.

FRENCH CJ:   Of course.  If you are talking about informed as to risks and alternatives and so forth it is a different universe of discourse that is ‑ ‑ ‑

MR HAMILL:   Your Honour, I will finish the brief introduction in terms of the special leave questions, but we also say that at least when we brought the appeal there was an important question of general principle that had not been decided.  I think Ms Yehia may have beaten me to the punch somewhat in bringing the case of Bugmy to this Court.  Your Honour, the point we make is that on the sentence appeal we submitted that it was a matter of general importance as to whether or not a Court of Criminal Appeal needed to address what is called the residual discretion in a Crown appeal against sentence.

Now, in Bugmy (2013) 86 ALJR 1022 the Court at paragraph [24] seems to have clearly accepted that a Court of Criminal Appeal must address the residual discretion or else its jurisdiction to increase a sentence does not, if you like, kick in, but in this case there is a stark, we say with respect, failure to address not only the question of the residual discretion in terms of its principle but also there was a body of evidence tendered before the New South Wales Court of Criminal Appeal which we submitted was relevant to the question of whether the residual discretion should be invoked and in the judgment of Justice Hall, who dealt with this aspect of the appeal, the evidence was not mentioned and the residual discretion was not mentioned.

We respectfully submit that even if Bugmy has now determined that issue in our favour, special leave, nevertheless, should be granted to remedy what we say is an injustice.  The applicant’s sentence – and he is an old man now – was increased dramatically and we say, contrary to the law, if the law requires before there be an increase in sentence consideration of the kind of evidence that was placed before and the kind of discretionary factors which exist under the residual discretion and the final matter of, we say general importance, which again Bugmy touched upon is where his Honour Justice Hall in dealing with the Crown appeal purported to overturn or did indeed overturn the finding of the learned sentencing judge in terms of the fact that the applicant’s depressive illness, which was longstanding, represented what the sentencing judge described as a significant mitigating feature. 

Justice Hall found that there were no mitigating features so implicitly overturning that decision but the reason he overturned it was because his Honour said the evidence did not clearly establish a causal link between the condition and the offending.  We say that that is incorrect but, again Bugmy, by reference to a New South Wales case called Engert has made it reasonably clear that that is an error in approach.

To a degree, in answering some of your Honours’ questions, I can shortcut the next part - and this is what is on paragraphs 1 and 2 of our outline - so that we are talking here about the concept of informed consent and the concept of consent in the criminal law and put the proposition, in effect, that the content of those two things is quite different.  The law seems to go back to 1914 in a case where Justice Cardozo made a statement to the effect 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” –

Your Honours will find that passage in one of the cases on our list called Reibl v Hughes which is a Canadian case, [1980] 2 SCR 880 at 890. It might be that the phrase “informed consent” was first used in 1957. I just provide this reference by way of, I suppose, historical context, in a case called Salgo v Leland Stanford University 154 Cal App 2d 560. That is the first reference to concept of informed concept, at least that we have been able to find. It was and is, I suppose, a convenient shorthand way of describing the obligation on the medical practitioner or healthcare professional or dentist to advise their patient of sufficient information to enable that patient to exercise right of self‑determination of ‑ ‑ ‑

FRENCH CJ:   Now, given the common ground between yourself and the Crown, why are we going into this?

MR HAMILL:   Well, I think, your Honour, I think I can shortcut it.  I might shortcut it in this way.  By the 1980s, the concept had found itself, finding its way into torts cases - I should say, intentional torts cases, and particularly trespass and then there is the trilogy of cases, and I will not take your Honours to them - Reibl v Hughes [1980] 2 SCR 880, Chatterton v Gerson [1981] 1 QB 432 and of course Rogers v Whitaker (1992) 175 CLR 479. That trilogy of cases from Canada, the United Kingdom and Australia really made it clear that the concept of informed consent should not find its way into the law of intentional torts and the short proposition that we make and which my learned friend in this Court accepts is that it is quite correct to make that proposition and it should be imported at least into the criminal law.

We respectfully submit that – and I have made this concession in answering one of your Honour the Chief Justice’s questions - that it may have been that the standards set in cases like those three were met in this case if the jury or tribunal of fact found in a particular way.  It was open to the prosecution in this case to put what would have been a very simple case if it wanted to have an alternative case.  I mean its primary case, as is submitted here, was this operation was not necessary and that this applicant knew that this operation was not necessary and performed it anyway for whatever reason.  The motive to do that was mysterious and the occasional forays into, if you like, the suggestion that he was motivated by spite in some way we respectfully submit were not really able to be accepted on any rational level.

If the Crown wanted to have an alternative case it could have had it and it could have had it by putting a very simple case.  It could have said that we allege that the accused deliberately failed to tell the complainant that he intended to excise her external genitalia.  He told her, we allege, that he intended to remove a small flap of skin but instead he removed her entire external genitalia.  She did not consent to that procedure and he knew that she did not consent to that procedure. 

Now, had the case been put in that way, there could be no doubt about what it was that this jury decided but that is plainly not what happened and the concepts of risks and consequences of the operation played a role in the case which means that it was impossible to untangle that from the more simple case that I have just attempted to articulate, which was also there and it will be necessary to take your Honours through ‑ ‑ ‑

CRENNAN J:   Does not Chief Justice Bathurst go through what you are calling the simpler case, paragraphs 93 to 97, application book 1362 to 1363 because if you identify an error in that reasoning process that would certainly be helpful to me in consideration of this matter.

MR HAMILL:   I am going to attempt to do that in the course of the submissions but I would immediately draw your Honour’s attention to what follows from that analysis at paragraphs 101 to 102, application book 1364 where his Honour put the submission that the applicant made before the Court of Criminal Appeal, and makes again here, which is that the jury may have convicted on what was effectively inadequate communication because there was no advice as to alternative treatment or risks.  One should have added and, I think, his Honour would have added or “major consequences” which may be similar to risks anyway because his Honour’s clear finding was that the direction was erroneous because it referred to possible major consequences. 

Then, his Honour in disposing of that argument in paragraph 102, we say creates or adopts a test which is not sufficiently strict in terms of the application of the proviso when his Honour says that he did not believe that was correct and going down through what he said - I am going to take your Honours through this paragraph in a little detail because we say there are a number of errors in there as to what exactly the evidence was and we also say that when his Honour came to the punch line, four lines up from the bottom of the page, his Honour applied the wrong legal test. 

His Honour said that there was a real likelihood – sorry, it does not seem to his Honour that those references “would lead to a real likelihood that the jury convicted”.  We say that that is putting it too high and that the question was in terms of applying the proviso once misdirection as to the elements of the offence had been established was whether or not it might have or it was possible that it affected the outcome – it is possible that the jury reasoned in that way.

BELL J:   I thought here his Honour was addressing that aspect of the proviso after, as a preliminary question, asking was his Honour satisfied beyond reasonable doubt that guilt had been established.  He then went on to look at all that remains in the proviso and in that respect among the considerations he addressed was the classic consideration of deprivation of a real chance of acquittal.

MR HAMILL:   Yes.

BELL J:   I think it was, on one view, in response to that that you get his Honour saying, well, looking at these matters in context of the way the trial was run there was no real likelihood that the jury went off on that point.  I think that is one way of analysing what one sees at paragraph 102.

MR HAMILL:   Indeed, your Honour.  The proposition behind your Honour’s question is borne out, I think, in the following two paragraphs, because at 104 in concluding that passage, his Honour says precisely what your Honour is putting to me.

BELL J:   Yes.

MR HAMILL:   But, in our submission, that test remains the wrong test.  If the court is analysing whether or not an applicant or appellant has lost a realistic opportunity for acquittal and is attempting to analyse – some of the cases say one should not do this anyway, but attempting to analyse what this particular jury did – we say the question is what a jury may have done with the evidence rather than the question of what was a real likelihood.  We say that is a different test.  Your Honours, in the case of Gassy v The Queen 236 CLR 293 at 307, paragraph 34, Justices Gummow and Hayne – I am not going to read it out to your Honours, but the last few sentences make it clear:

it will be important to consider the possible effect that the error may have had on the outcome of the trial.

BELL J:   But Gassy is a very different case. When one looks at paragraph 102 the reasoning is, on the issues in this case, the lively question respecting consent and honest belief in consent was as between “a relatively minor surgical procedure” and the removal of the whole of the external genitalia. That is the context in which one finds the reference to “real likelihood”.

MR HAMILL:   Yes.  I really do need then to come to the submissions we put in terms of the conduct of the trial from beginning to end because we say that the ‑ ‑ ‑

CRENNAN J:   And particularly your point about the misdirection being a fundamental error of the Wilde kind, or the kind we see spoken of in paragraph 34 of Gassy.

MR HAMILL:   Yes.

CRENNAN J:   So that there is no getting to the proviso, as it were.

MR HAMILL:   Yes, and I should say while I think of it as well on that point, that one of the reasons we make so much of the failure of the learned Chief Justice to accept that the passage set out in paragraph 88 of the trial judge’s direction is an error – not just obscuring the issue, but is an error – is that one of the critical parts of applying the proviso is to consider the defect in the trial proceedings.

CRENNAN J:   Does the Chief Justice deal with Wilde or Gassy or this point about ‑ ‑ ‑

MR HAMILL:   No, there is no analysis of those cases.

CRENNAN J:   Was that part of the argument in the Court of Criminal Appeal?

MR HAMILL:   The proviso played little role in the argument before the Court of Criminal Appeal, I think it is fair to say.

BELL J:   His Honour does refer to Gassy in paragraph 90 in a discussion of the principles respecting the proviso.

MR HAMILL:   Yes, and the other case ‑ ‑ ‑

BELL J:   Then in 105 there is reference to Wilde.

MR HAMILL:   Yes.

BELL J:   You do not take issue with his Honour’s summary of the principles, as it were.

MR HAMILL:   Well, we do not take issue with his Honour’s list of the relevant cases, but where his Honour applies – and the analysis or the broad statements of principle in that paragraph and following – but those cases, we say, were not applied when the court came to the analysis of the proviso at the end.

BELL J:   That is because of the passage at paragraph 102 beginning, perhaps, about midway through “There was some limited cross‑examination” and what follows.

MR HAMILL:   Yes.

BELL J:   That is, in essence, your case, is it, that the Court of Criminal Appeal failed to appreciate that a lively question did turn on issues of the consequences of the procedure, including puddling and so forth?

MR HAMILL:   Yes.

BELL J:   So that is the aspect of it.

MR HAMILL:  That most starkly identifies the error, but we say that the ‑ ‑ ‑

FRENCH CJ:   Do you say the direction, or the misdirection, set a lower threshold for conviction than was required by the elements of the offence?

MR HAMILL:   Yes.

FRENCH CJ:   Properly directed.

MR HAMILL:   Yes, and very much lower.  It set the bar at negligence.

FRENCH CJ:   Well, anyway, it set the bar at a consideration of a consent based upon – the requirement for a consent based upon an appreciation of risks and alternatives.

MR HAMILL:   Yes. 

GAGELER J:   You must say more.  You must say more than to say that the proviso is not applicable.

MR HAMILL:   The high point of our argument is that the issue of informed consent as it was explained to the jury, including the possible major consequences, alternative treatments and the like so pervaded the trial that there was effectively no trial.  So that in the sense that is discussed in - I think it is Handlen and I will come back to it  – that the jury did not decide the issues upon which it was called to decide so that the proviso had, in effect, no application, but we then go on to say, let us assume that this Court or the Court of Criminal Appeal came to the contrary view that, indeed, the misdirection was not so fundamental as to mean the proviso could never apply because there was a failure in the court below to analyse the evidence in the way that is required for the application of the proviso.  I am not sure if I have answered your Honour Justice Gageler’s question.

GAGELER J:   Can I just look to the Chief Justice’s consideration of the proviso, beginning at paragraph 90.  It seems to me to fall into three modules.  From paragraph 90 through to paragraph 99, his Honour is concerned with the preliminary Weiss question and he concludes at paragraph 99 that he is:

persuaded that the evidence led at the trial proved the offence beyond reasonable doubt.

That is module 1.  Then module 2, from paragraph 100 through to 104, is dealing with the more traditional, perhaps, Mraz question of whether there was a deprivation of a real chance of acquittal.  Then, module 3, as I see it, is paragraph 105 – fundamental error.  Now, as I am understanding your argument, you say first that there was a fundamental error but if you are wrong on that then you go back and say that his Honour’s module 2 analysis is incorrect.  Is that the way you put it?

MR HAMILL:   Yes, we do, and we even go further and go back to module 1 and say that the analysis there does not comply with the requirement that the whole of the evidence be considered, that it was effectively not open to the court to be satisfied beyond reasonable doubt.  That involves a great deal of detail and is somewhat inconsistent, I acknowledge, to the proposition that we put that the proper order was, and will be if your Honours accept our arguments, a retrial rather than an acquittal.  We never took an unsafe or unreasonable verdict ground, but we do say that there are problem in the analysis of the evidence which does get into detail, but, yes, your Honours articulated, I think, the approach that we put, or urge, upon the Court.

The other case that I should – before I come to just go through it piece by piece, the trial process and how the concept permeated the trial, I will just remind your Honours of the case of Dries v Gregor (1980) 424 NYS 2d 561. We have provided your Honours with a quote from that case at paragraph 42. I simply raise it because the factual matrix is very similar in the case to the present.

At 563 the facts are set out and what had happened was that a patient of Dr Gregor had a mammogram which showed a suspicious lesion.  Dr Gregor recommended that a biopsy be taken in order to examine whether that lesion was malignant.  Instead he took a great deal of tissue and performed what was described as a partial mastectomy and agreed that he had not told the patient that, the patient giving that evidence, and then we get to the quotations at 563 and 564 which we say are apposite and appropriate to keep in mind at all stages of the consideration of a case such as this which is, if a doctor is attempting to cure, if you like, it will be a rare case when they are guilty of a crime such as this.

That is where the finding of the learned sentencing judge, which is accepted, is so important because his Honour, who presided not only over this trial, but also over the previous trial which ended up being put to the jury on the basis of a specific crime of genital mutilation which resulted in a hung jury and no verdict, his Honour then presided over this trial and ultimately – and this is at application book 963 – came to the conclusion that he was:

not satisfied beyond a reasonable doubt that the offender deliberately intended to perform an unnecessary and unjustified operation.  It is possible that he believed, wrongly but honestly, that he should perform the operation as he did in order to eradicate any possibility that the potential cancer could become malignant and invasive.  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.

Earlier his Honour had said - this is on 962, line 40, that:

He failed in his important duty . . . to discuss with the patient the full scope of what he intended to do.

I will not take your Honours to it, but we have referred to in our written submissions, Chief Justice Bathurst was prepared to accept that finding of the sentencing judge.  That is at application book 1362.  Justice Hall specifically came to the conclusion that the sentencing judge had come to, that is at application book 1385 and Justice Hulme at application book 1415 specifically concurred with the finding of the sentencing judge, or in fact independently came to it.

In our written submissions your Honours will see from page 53 – sorry, paragraph 53 – we had a 20‑page limit mercifully – at paragraph 53, we go through in summary the matters which we say show that the issue of informed consent permeated the trial.  Notwithstanding the slight element of repetition in this, in taking your Honours through it, it started with the opening by the learned Crown Prosecutor which your Honours will see at application book page 50 where the learned Crown Prosecutor put that the accused that the plaintiff did not have the complainant’s consent to perform such a radical operation.  The important part of that is this.  Four lines up from the bottom, so at about line 50 on page 50:

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.

So that is put to the jury on day one of the trial and then the Crown Prosecutor says:

She didn’t give her informed consent in the Crown’s submission to you –

So that from the moment, in effect, the trial started the Crown was putting not just an overview of what it expected to show but a submission in its opening statement that the submission would be that there was no informed consent because she was not told of the consequences sexually or in everyday life.  Then in the evidence of the complainant there are a number of questions and answers.  At application book 59, there is a series of questions and answers from about line 20 about sexual response, even about orgasm, about whether or not she was given anything from the Cancer Council or offered support.  At 59 and over to 60 and line 36 on page 60:

Q.       Did he tell you whether that would have any effect . . . 

Q.       Did he say anything to you about sexual intercourse . . . 

A.       It might have been mentioned –

it was said.  At application book 66 we have the evidence that your Honour Justice Bell referred to earlier in relation to the “puddling” during urination.  That is at application book 66, line 42.  It is important to jump forward, if I can, to application book 503 where it was put to the accused – I withdraw that – he was asked whether he had explained to her that after surgery she would have difficulties with the process of urination and he acknowledged that he did not think he did.  That is at application book 503, line 15. 

The questions asked of the complainant then have to be married up with the questions asked of the accused and your Honours will recall that those questions are actually asked beforehand because the material your Honours see from the accused is from the first trial, not that that matters very much but worth bearing in mind that chronology, I suppose.  No, I withdraw that.

Next, I would turn to the expert witnesses.  All of the expert witnesses, I should say all five of the witnesses who were experts in this territory of either oncology or gynaecology or both, were asked questions about the appropriate consent process.  At application book 259 at line 10, the very first question:

Q.       What about any psycho sexual aspects in relation to removal of the clitoris or other parts of the vulva?

A.  Well, I think that would be a necessary part of that consent process –

Whilst there is reference in that question and answer to the part of the anatomy in question, the question is directed to the psycho‑sexual aspects, which is a consequence of the operation rather than the nature of the operation or even the extent of it.

FRENCH CJ:   This is evidence going to the practice of a competent surgeon given by an expert.  What issue was that relevant to?

MR HAMILL:   Well, in this trial it was only relevant to one issue and that is the question of whether the patient had given her informed consent.  One of the points we make, which I concede we did not make in the court below, but which an analysis of Rogers v Whitaker shows is that the way that this case was conducted was that the applicant’s consultation process was set against the evidence of the five experts as to what was the appropriate way of going about this consent process. 

In Rogers v Whitaker the Court made it clear that that is, even in a negligence case, not the appropriate question.  The question is not to set what happened in this case against the best practice of the experts but rather against a standard provided for by the law as to what is reasonable in the circumstances, the classic negligence test, which will take into account consideration such as the nature of the procedure, the nature of the patient – the patient’s desire for information and so on and so forth.  So, even in that respect, it is not a major issue but it is interesting that in that respect this trial did not meet the standards of a negligence case.

CRENNAN J:   Was the major issue, so far as the experts were concerned, the question of whether or not the operation was warranted?

MR HAMILL:   Yes, that was the major question.  But at all stages, from beginning to end, there was a secondary question and that secondary question was whether or not, if you do not accept that the accused deliberately performed an unwarranted operation, you can still convict him if he failed to obtain the informed consent of his patient.  These questions can only really go, we submit respectfully, to that second basis upon which the Crown case was put, and there was a reasonable amount of it.  We say that the only reasons these questions could have been asked and was placed before the jury was in order to substantiate that alternative case.  If I move then to the expert, Dr Hacker – this is at application book 312 - the question is asked at line 38, assuming these various things exist:

How would you carefully go through the procedure with her?

That is followed up with –

Q.       Is there any discussion about future sexual response?
A.       There would be some discussion . . . 

Q.       Would you mention the word ‘clitoris’ . . . 
A.       Absolutely, yes.

But again, focus on “Is there any discussion about future sexual response?”  Dr Korda was the last of the experts, and the evidence is set out in fact in our written submissions, but your Honours will see it at application book 321 and 322.  At 321, line 23:

Q.       Would any sexual effects be explained to the patient?
A.       Well, one would think it would be necessary to.

Then return to that over the page at 322, line 38:

Q.       What type of consent would be required . . . 
A.       Similar to what we spoke of a few minutes ago; about explaining what the operation involves; what structures are ultimately removed and what impact it has on sexual function and the general material risks of that type of surgery in relationship to her.

KEANE J:   Why is not this evidence relevant to what a surgeon would believe as to the patient’s appreciation of what was to happen to her?

MR HAMILL:   The Crown’s position, and I think the position taken by the Chief Justice, is it may have some secondary relevance to that question, but it is not solely relevant to that question.

KEANE J:   Why secondary relevance?  Why not rather compelling evidence of what a surgeon would understand to be necessary in order to ensure that – in order to be in a position where the surgeon could be confident, could believe the patient understood what was going to happen?  I mean, true it is that it is not enough to take reasonable consequences.  True it is that the surgeon would only be criminally responsible if he did not honestly believe that the patient understood what was going to happen to her, but is it not an essential step along the way?

MR HAMILL:   No, we respectfully say it is not.  What is essential in terms of obtaining consent, or putting it more correctly, for the Crown to negative lawfulness is that the nature of the operation was explained in broad terms.  That, we respectfully submit, does not involve a requirement to talk about with the patient the general material risks as that answer came out or, specifically and repeatedly through the trial, the sexual impact. 

To advise somebody that this part of your anatomy is to be removed, and in this case that was done according to the defence case by the provision of a diagram.  The applicant acknowledged that he had not used the words of the anatomy itself, but he said that he had shown her a diagram.  Of course the complainant denied that she had seen a diagram.  That is sufficient, we say, to establish a real consent, and I use the term “a real consent” because that is the language in cases such as the three we referred to earlier, Chatterton v Gerson and so on, the consent must be real.

KEANE J:   Well, speaking sensibly about the issues as they arose in this case, it has to be a consent to what happened.

MR HAMILL:   Yes.

KEANE J:   So that it has to be a consent to the excision of the external genitalia.

MR HAMILL:   Yes.

KEANE J:   And your client would not be criminally responsible if he honestly believed that the complainant consented to that happening.

MR HAMILL:   Yes.

KEANE J:   Why does not this evidence go to that issue?

MR HAMILL:   Well, it goes beyond that, it ‑ ‑ ‑

KEANE J:   I mean, of course as a matter of strict law the doctor might not have to explain the consequences to be criminally responsible, but here the discussion about the removal of the external genitalia is informed by some discussion of the consequences.  As I understand it, it is common ground in the evidence that your client told the complainant that she would still be able to have sexual intercourse.

MR HAMILL:   He said that having seen the diagram she asked about sexual intercourse and he said yes, and she acknowledged that there was a conversation like that but she denied that she had seen a diagram that prompted it, so yes.

KEANE J:   Yes.  So in the evidence that is common ground there is no discussion about the consequences of the proposed operation for the complainant, which consequences would be obviously discussed, beyond reasonable doubt, if you like, if the complainant had been alerted to the extent of this operation.

MR HAMILL:   It would not obviously be so that the accused would discuss the impact on urination or even granted that the question of whether sexual intercourse could occur whether or not it would impact on her psychosexual function which was the language used by the prosecutor and the doctors.  Those are different things.  Those go well beyond a simple conversation about, well, you will still be able to have intercourse notwithstanding that I am going to take the part of the anatomy that we see depicted on this diagram.  Now, it is probably the case that a reasonably competent surgeon would have provided information unless the client or patient was completely closed to hearing about it but assume ‑ ‑ ‑

KEANE J:   There is no suggestion of that.

MR HAMILL:   No, I am not suggesting there is but it is just that sliding scale that is spoken about in Rogers v Whitaker as to the standard that the law sets up as opposed to the standard of the peers who gave evidence in this case.  It may well be that the failure to direct the patient’s attention to those consequences would found a negligence claim, and indeed it did in this case, but that is really our complaint, that this evidence was being given in a criminal trial where the question was, was the consent real and that the jury might have, given its question in particular and given the very clear directions about it given in written form, in oral form and in answer to that question, may have proceeded on the basis that, look, this doctor should have told her about these impacts on her.

FRENCH CJ:   Now, your reference to this evidence in support of the general proposition as to the pervasiveness of the informed consent line of country is directed, is it, to what I think Justice Gageler called the third module of the Chief Justice’s reasoning?  That is, his characterisation of the way in which the consent issue was in truth run at trial in support of the conclusion that the applicant was not deprived of a real chance of acquittal and, of course, that is at 102 and the beginning of 103, I think.  In other words, you are saying he took an overly‑sanguine view of the way in which consent played out in this trial.

MR HAMILL:   So yes, indeed, and I think it might have been Justice Gageler’s second module.

FRENCH CJ:   I have lost count then.

MR HAMILL:   But, in any event, I might be wrong about that as well, but if I can take your Honours to 102 because I ‑ ‑ ‑

GAGELER J:   Well, you are right that it is the second module, but I think I said it was Chief Justice Bathurst’s second module.

MR HAMILL:   If I can take your Honours to 102, because what we say here is that when the Chief Justice is analysing whether or not the applicant lost a reasonable chance of acquittal, or a real chance of acquittal, and in terms of the expert evidence, it is at paragraph 102, about six lines down:

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.

Now, what his Honour is doing in paragraph 102 is considering the course of the trial and whether or not this misdirection may have impacted on the outcome.

FRENCH CJ:   Well, the critical sentence is the previous sentence is it, whether:

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.

MR HAMILL:   Well, that is part of it, but then to analyse what this jury directed and what this jury heard ‑ ‑ ‑

FRENCH CJ:   I know, that is what I am saying, you are saying that is an unduly benign view of how the consent issue played out.

MR HAMILL:   Yes, indeed, yes.

BELL J:   Providing some support for the way the Chief Justice analysis it at paragraph 102 is the response to the jury’s question on informed consent which one sees at 894 where the judge gives a relatively brief account directed to whether the Crown has established:

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.

MR HAMILL:   Yes.  So can I analyse, with respect, that a little more closely?

BELL J:   Yes.

MR HAMILL:   So what needs to be considered is the jury’s question and the written directions, because the jury was given a document in the course of its – at the commencement of the summing‑up, and its question was directed specifically to that document.  That document is to be found at application book 809, and the informed consent issue is dealt with in the written directions at 814.  And certainly the point your Honour Justice Bell makes to me is a similar point to the one which the Chief Justice acted upon. 

But really, the question of a jury is directed specifically to page 6 of the directions of law, specifically to the definition there given of “informed consent”.  The question is remarkable, really, in its insight, if you like, and what it tells us about what was going on in the jury room.  Are we to assume that this is the literal definition of “informed consent” by which the accused is to be judged?  Yes, his Honour did go on to articulate but the answer to that question is yes.  That is the literal definition by which this accused surgeon is to be judged for his actions in carrying out this procedure.  So one has to go back to that at page 814 and see that the language there is, again, we submit, the language of negligence:

that the practitioner must at least explain to the patient the purpose of the operation, the parts of body. . . the possible major consequences of the operation –

Then, in the last paragraph:

If the explanation is not communicated adequately . . . it cannot be said that there is “informed consent”. 

We say that the learned Chief Justice in focusing on the answer to the question did not focus on all of the answer to the question and the very specific nature of the question and the fact that it goes back to page 6 of those directions.

FRENCH CJ:   This is critical to your argument though, because if the Chief Justice’s characterisation were right at 101 and 102, the jury would not have convicted on the lower threshold that you say was the risk in this case.  In other words, the proviso argument would fall away if that characterisation were corrected.

MR HAMILL:   Yes.  The only caveat I would put in answering that question in the affirmative is that it has to be the possibility of them reasoning in that way has to be ruled out.  We say the test or the bar is very high on that issue.  It is not a real likelihood which is what the Chief Justice put.

FRENCH CJ:   Well, you do not know – possibility is a likelihood in a sense.  It is a non‑trivial probability, is it not?  It can be 10 per cent if you want to quantify if.  I sometimes wonder about the distinction that is drawn between possibilities and likelihoods.  They really reduce some circumstances to much the same thing.  You can talk about mere theoretical possibilities or fanciful or speculative ones by which you mean a trivial, a very low probability or likelihood, I suppose.

MR HAMILL:   I am not sure that I want to enter the philosophical debate behind that question but ‑ ‑ ‑

FRENCH CJ:   I am not sure it is a philosophical debate.  It is probably a semantic one.

MR HAMILL:   In any event, we say that that is not what we are talking about here given the way that the case was opened, the evidence that was adduced, the cross‑examination of the accused, the directions of law and the jury question.  It is not a fanciful idea or possibility that we are pointing to.  The next part of the analysis is the cross‑examination of the applicant.  That is at application book 516.  Your Honours will see at the top of 516 the cross‑examination of the applicant at line 18:

Did you consider with the terrible situation that [the complainant] was in that you have told us about sir, that she was in a proper mental state to give informed consent to such a disfiguring and life changing operation?

So it is raised fairly and squarely there in what is a fairly loaded question.  Going backwards, I apologise for that, 512, line 47:

Did you talk to her about how she would cope psychosexually –

and her relationships and so forth.  Page 526, and I apologise for jumping all over the place:

You didn’t care about her future psychosexual function?

You didn’t care that you were stopping her sexual function . . . 

You didn’t discuss body image with her?

That is pretty over‑the‑top cross‑examination, with respect.

KEANE J:   Why?  Why is it not something that explores the reality of the suggestion that the complainant was informed as to what was to happen to her?  If the complainant had been informed about what was to happen to her, these are the sorts of topics that one would expect as a matter of ordinary human experience to be raised and discussed.

MR HAMILL:   But it does not assist the jury in determining whether or not this applicant spoke to this complainant about the nature of this operation, to put a series of propositions about whether he cared about her future sexual function or whether he discussed body image with her, and it would not necessarily be something that arises in every consultation.  Some patients would be most timid in discussing those sorts of intimate details.  They just want to know this.  “I have this pre‑cancerous condition that my GP has sent me to you to deal with.  Can you deal with it?”  It is not a matter of human discourse, in our respectful submission, that every patient is going to react in the same way to being told the nature of such an operation.

KEANE J:   That might be right, but once we know because it is common ground that there was discussion about the possibility of sexual intercourse, the sort of speculation that you are putting becomes quite irrelevant to what one would expect to happen in that conversation and what that would mean for the practitioner in terms of his appreciation of the client’s appreciation of what was going to happen to her.

MR HAMILL:   It may, but it may not.  I am just trying to find the passage where the complainant said that it did not seem like a particularly important topic.

KEANE J:   No, it would not have, because on her version of events it was going to be a very minor piece of surgery.

MR HAMILL:   Well, the answer we put in terms of the facts and inference drawing is if it was to be a small excision, why would the topic of sexual intercourse be canvassed at all?

KEANE J:   Perhaps because of the locality as to where it was occurring.

MR HAMILL:   What we say is these are all – but she was talking about a small flap of skin, not something that would ordinarily give rise to a conversation about sexual intercourse, psychosexual function, body image and the like.

KEANE J:   What we do know – because this sort of discussion is the sort of thing that might occur about – body image might be something that one would be interested in discussing if one understood what your client intended to do.

MR HAMILL:   We say that we are in the realms of possibilities and one possibility is that the jury convicted this applicant because he failed to provide information about that sort of impact and based on this evidence.

KEANE J:   And the Court of Criminal Appeal accepted that that was an error, so to that extent you are pushing against an open door.  The question then is whether the Court of Criminal Appeal dealt with or applied the proviso correctly.  Is that not so?

MR HAMILL:   That is correct.  Would your Honour just excuse me?  Your Honour, just to come back to your Honour’s question, we did not take in the court below, and nor do we take here, effectively an evidentiary objection to that evidence being given.  It may have been open to object to some of those questions but it was not objected to and there was no ground of appeal which asserted that the evidence was wrongly admitted.  The question though is how it was used, or how it was possibly used, and that is where one feeds that evidence into questions as to how the jury would have dealt with the directions of law that were given to it in terms of informed consent.

So that it may be, without conceding it, that your Honour is correct in terms of what might be ordinary discourse once this kind of procedure is being discussed between a doctor and his or her patient, but that does not answer the question of how, given that the jury was on everyone’s view now misdirected – and that misdirection went to an element of the offence, lawfulness, consent – how this evidence may have been used. 

One of the points we make in our reply is if it is correct to say that this evidence went to the issue of whether or not it was the complainant’s account or the applicant’s account that should be accepted, and that is all it went to, then the jury should have been clearly directed that that is the only issue that this evidence has gone to.  You have heard evidence from the complainant in cross‑examination of the applicant, in the evidence of the experts about what should or might have been discussed in the consultation process.  That evidence can only be used in a particular way.  It goes only to the possibilities or likelihoods of which version of event is correct and, more correctly, whether or not you can be satisfied beyond a reasonable doubt of the complainant’s version of that one hour consultation, or have a doubt as to that.

FRENCH CJ:   Well, that is to say you accept that it is relevant to the kind of consent of which the Chief Justice was speaking in 101 and 102, to which we referred earlier.

MR HAMILL:   It has relevance ‑ ‑ ‑

FRENCH CJ:   But you say the problem is it hooks into the informed consent direction in a way that ‑ ‑ ‑

MR HAMILL:   Yes, that is it.  Thank you, your Honour.  Page 463, again, there is cross‑examination of the applicant about sexual response and whether she was told that the “sensation would be different”.  That is at 463, line 43, and he did not tell her that her sexual response would be virtually nil.  Then reference over the page to whether or not:

That might be satisfactory for the male participant –

but not necessarily the female participant.  Then at 464, line 23:

It’s part of your role to talk about sexual function after any operation that you might perform on someone -

and the “integral part” that sexual function has and so on.  I should just pause to point out that the learned Chief Justice at 102 says:

There was some limited cross‑examination on possible consequences –

We submit that is more than a limited cross‑examination.  So once again the submission is in analysing paragraph 102 there is a theme of the extent to which the case had been conducted in this way not being completely appreciated.

The Crown address - his Honour said, and he was right, that there was reference in the Crown’s address to difficulties in urination.  But the learned Crown Prosecutor also at application book 720 also read that whole passage of the complainant’s evidence‑in‑chief to which I took your Honours earlier and at 751 submitted to the jury that the applicant failed to tell her “what the alternatives were”.

I have already, in answering a question, taken your Honours to the directions and the critical one in light of the jury’s question are the written directions.  The oral directions at 828 really are much the same.  Then there are references, for example, at 883 in the summing‑up to a failure to provide advice as to alternatives and the consequences in terms of urination. 

What we respectfully submit to the Court is that once it is accepted that the first basis of the prosecution’s case had not been established beyond a reasonable doubt that it was necessary, for the court properly to exercise its function in applying the proviso, to analyse closely the alternative basis of liability which is, to use a shorthand, the consent case.  It was necessary to do that to determine whether there was in the terms of the statute a substantial miscarriage of justice and in terms of this area of the debate culminating in paragraph 104 whether the applicant lost a “chance of acquittal” that was reasonably or realistically open to him.

I will not repeat myself in terms of Gassy.  I have taken your Honours to Gassy and we do rely on that passage acknowledging the differences and we also have already taken your Honours to the communication from the jury.  Gassy was also relevant to the fact that it was said at 307 that the length of the jury’s deliberation and the communication that had been received from the jury was a relevant consideration. That is at page 307 of 236 CLR.

The final submission, or I suppose a summary of the submissions we are making, is that once that analysis of the trial process from beginning to end is undertaken it is impossible to accept the finding at 102 that there was no real likelihood, and in any event as we have attempted to submit, that bar is too low.

Handlen v The Queen (2011) 245 CLR 282 is just one of the proviso cases that we wanted to take your Honours to. I have mentioned it a couple of times in passing, and I have not given the reference. It was a drug case under the Criminal Code and the jury was misdirected as to the basis upon which the appellant might be guilty.  The nature of the misdirection can be seen at Commonwealth Law Reports 296 and 297.  In effect, the vice was putting the case as one where if the applicant was involved in a particular criminal group and that criminal group did an importation, that he was thus guilty.  I think there was more than one accused, in fact.  What should have been put is whether or not the appellant had engaged in conduct but in fact facilitated the importation by another of the participants.  That is at 297, line 46.

I just wanted to take your Honours to it to indicate that we rely on the passage at 298 of the Commonwealth Law Reports, in particular at paragraph 47.  The Court again emphasised that which was explained in Weiss v The Queen, that:

there is no single universally applicable description of what constitutes a “substantial miscarriage of justice” –

but that in this case –

The appellants were convicted of serious criminal offences following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide.

We say that is, in spite of the fact that this was an alternative case, the same situation that arises here.

BELL J:   Well, I think Handlen was different in the sense that the case was conducted upon a basis which the principles of criminal responsibility under the Code simply did not provide for.  That is perhaps rather different to the suggestion of a misdirection respecting consent.

MR HAMILL:   This case was conducted on the basis that if the appellant had been shown to have failed to provide the information about possible major consequences and so on, that gave rise to criminal liability.  We would submit that there may be a difference in terms of the statutory basis of the error in Handlen, but in terms of the fundamental nature of criminal law, we say there is no real difference.

GAGELER J:   If you look to the headnote in Handlen, would you accept that the headnote captures the ratio of that case? It is put in the headnote at page 283 that the holding was:

that there should be a new trial because an appellate court could not be satisfied, given the way the trial was conducted, that the evidence led at the trial proved beyond reasonable doubt the appellants’ guilt of offences that existed at the time.

In other words, as I read it, on one view, the view of the headnote writer, Handlen is a case where the way in which the trial unfolded prevented the appellate court itself from reaching the conclusion that the Chief Justice here reached in paragraph 99.

MR HAMILL:   Your Honour, my reading of paragraph 47 is quite different to the headnote, I must confess.  Paragraph 47 harkens back to Weiss and the idea that one cannot lay down hard and fast rules and it is unhelpful to provide formulations that are not substantial miscarriage of justice, that is that statutory language, and then asserts that:

The appellants were convicted . . . on a basis for which the law did not provide . . . It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals.

I must confess I read that as being more in the nature of a fundamental defect case rather than they could not have been guilty – sorry, the Court of Criminal Appeal was not satisfied beyond a reasonable doubt.  Their Honours may have come to that conclusion as well, and I confess I do not know the answer standing ‑ ‑ ‑

BELL J:   Added to that, in paragraph 47, is the circumstance that the trial, conducted on a basis for which the law did not provide, had “conferred an evidentiary advantage on the prosecution”.  It does seem to me that there are some points of distinction.

MR HAMILL:   We accept that.  Indeed we accept that if I throw 10 proviso cases at your Honours this morning - and I am not going to - but if I did, they would all have their own features.  What we do say is that this one, the applicant’s case, does fit that category of case where there has been a failure of what was described in Weiss as the presuppositions of a valid trial.

GAGELER J:   While I have distracted you in relation to the test or the Weiss test, on one reading of the decision in Weiss it is inappropriate for an appellate court to go to what I have described as the second module of the Chief Justice’s reasoning in this case, that is, it is not for the appellate court to second‑guess what a jury, a reasonable jury, this jury would have done.  The court itself makes up its own mind - module 1 - and there may be other circumstances that so fundamentally affect the procedure or some other aspect of the trial that would lead a court not to see the proviso as applicable even though the court itself can be convinced beyond reasonable doubt of guilt, but module 2, on one view, is precisely what Weiss was saying should not occur.  Do you have any position on that?

MR HAMILL:   Well, other than to say that what your Honour says is correct, that in Weiss on more than one occasion – well, the Court said it was not an inquiry into what this particular jury would have done and it is not even an inquiry into what a hypothetical jury would have done.  I accept that, but the cases that have followed it make it difficult to sustain the proposition that at least in considering whether the applicant lost a fair chance of acquittal that you do not take into account the record - so that in Gassy the Court looked to the communications…..the jury and the length of the jury deliberation, although it went on to say, well, it was not open to the Court of Criminal Appeal to accept guilt beyond reasonable doubt. 

The cases do actually create something of a conflict and conundrum in whether or not there is any inquiry to be made as to what the jury was thinking, but if one is considering whether a fair chance of acquittal was lost we would submit insofar as Weiss takes a view that that is an inquiry that is simply illegitimate, that is not supported by subsequent cases.

GAGELER J:   This might be your nuanced principle.

MR HAMILL:   Maybe, I thank your Honour for it.  Baiada Poultry v The Queen (2012) 246 CLR is another case where there was an error in relation to what had to be proved and it was said at 105 to 107 that the proviso is seldom applied in such cases.  At paragraph 35, just by way of example and going back to your Honour Justice Gageler’s question, the Court is there plainly contemplating what it was open to a jury to do.  So, again, and it is just one of those post‑Weiss cases that seems to bring the law back a little from the proposition that you just ignore what a hypothetical jury or the actual jury would have done. 

Your Honours, those are the submissions that we seek to put on the proviso in terms of the manner in which the case was conducted and extent to which the trial was affected by the misdirection.  We do reiterate the submission that the Chief Justice’s failure to recognise at paragraph 88 that that was a misdirection may have impacted upon a consideration of whether the misdirection affected the result, in other words, it may have infected his application of the proviso.

We need then to turn to just some aspects of the evidence in this case because plainly the reasoning of the Chief Justice in terms of the finding that his Honour came to and with which Justices Hall and Hulme agreed has to be analysed a little as well.  So, insofar as I am following the outline, I think I am up to about paragraphs 6, 7 and 8 of that outline. 

What we say in those paragraphs is that ultimately a proper consideration of the evidence should have led the Court of Criminal Appeal and would lead this Court to a proposition that conviction was not inevitable, that there were errors in the way that their Honours approached the evidence, in particular, taking a kind of all or nothing approach.  So that once you conclude “We do not accept what the accused said, therefore, we will accept, in effect, uncritically what the complainant said” - and the basis of the rejection of the applicant’s evidence.

We have dealt with this largely in the written submissions and I hope not to be too tedious in taking your Honours through it, but paragraphs 54 to 63 of the written submissions and paragraphs 14 to16 of the reply.  The first point that we have made concerns a matter that the Chief Justice placed a great deal of reliance on and that is the notes of the consultation. 

I think the parties in a sense agree that the issue of informed consent, as it was put to the jury, or consent as it should have been to the jury and is now alive in this case, came down to a degree to a very small passage of time and that was the consultation between the applicant and the complainant.  One of the critical features of the case was the notes that the applicant made, and that is in exhibit P which is in the application book at 588 to 589.  There are in fact two versions of that document and the one that I am going to invite your Honours to look at is the one at 648 to 649, which is a copy of the same document but which has the accused’s handwritten interpretation of his notes.  His handwriting is difficult to read.

Now, the two parts of those notes which we draw your Honours’ attention to.  First at 649, the reference there is to the “VIN III” lesion and this is over at the diagram at the bottom of 649.  Then there is reference to “Dys” and that is pointed to in a couple of places.  The top of what is facing at the right side but what is in fact the left‑hand side of the labia, and then various places on the right‑hand side.  The second part of that document that we seek to take your Honour to is the part at 44 where the transcription says:

Lesion on vulva noticed in past 2 years.

Sorry, that was at page 648.  The prosecution case at trial was that both of those entries were not contemporaneous but rather had been put there after the event when perhaps the applicant became aware that there had been complaints made against him or civil proceedings.  Your Honours will see that in the cross‑examination of the applicant at 419, line 10, where it was put to him:

I’m going to suggest this to you, that when you knew that the alarm bells had been raised about your surgery…. by 2005 –

which is, of course, three years later –

you got your notes out and added a bit more DYS on the diagram . . . in order to justify your surgery on her, didn’t you?

A.No, I did not.

Then there is cross-examination on that subject as the fact that he had those notes in his possession and so was able at least to do that.  Then at 436 application book – and I will not read it out, but your Honours will see when you go to it a series of questions and answers where it was put that the note in relation to her having the lesion for two years was also, effectively, fabricated or forged after the event.

The problem with that analysis, we respectfully submit, was actually pointed out to the jury in the summing‑up, and that is that Dr Dalrymple gave evidence and he was the only one of the five experts who had actually consulted with the complainant – he had been a treating doctor of her, whereas the others were either qualified in civil proceedings for the purpose of this trial.  Dr Dalrymple gave evidence – and this is at application book 222 – that he had been told much the same thing, “saw her in 2005”, the husband died in 2001 and that she had a long history. 

What the judge put to the jury at summing‑up at page 867 was he is talking about the assertion by the Crown that the document was forged, or fabricated, “dys”, “dys”, “dys” and then lesion on the vulva.  His Honour reminded the jury that Dr Dalrymple had seen her in 2005 and was told much the same thing.  I am paraphrasing.  You might ask yourself, well, why would she say that to Dr Dalrymple in 2005 if it was not right?  If it was right, why would she not also the same thing to Dr Reeves in 2002?

So the assertion that the document was a forgery in some way was one that may have had its problems.  Why do I raise it in the context of the Chief Justice’s analysis for the purpose of the proviso?  Two reasons – the first is that if it was not forged, it provided a contemporaneous record of the dystrophy which would have been a critical piece of evidence to take into account in the assessment of the whole case.  When his Honour the learned Chief Justice considered the case, a critical feature of his Honour’s analysis was his finding that the dystrophy did not exist. 

This is at application book 1363.  So his Honour talks about – and his Honour is right – a number of documents in which the word “dystrophy” or “lichen sclerosus” which came out of the applicant’s surgery, things like the request for pathology after the operation, the letter to the GP did not refer to the dystrophy and his Honour concluded that it was inconceivable, if it existed, that it would not be there.  At 96, his Honour finds that:

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.

but there is no, with respect to his Honour, analysis of that finding.  There is no explanation for the contemporaneous note.  There is not acknowledgement that if that was a contemporaneous note, it provided real support for the applicant’s case at trial.  There is no deference to the role that a jury should play in cases where serious assertions of dishonesty and credibility are raised.  There is no actual finding that the note was forged.  As I have said, if it was not forged then we are left with this piece of contemporaneous evidence.

Your Honours, we have dealt with in the written submissions the letter to the GP, and I have just raised it in passing.  The letter to the GP – and the applicant in evidence acknowledged this – did not refer to the dystrophy and nor did it refer to the lichen sclerosus but it did have these peculiar references to “extensive in situ cancer” and “multi‑genital cancers”.  Your Honours will see that at exhibit J, 586. 

Dr Davy, and I will not go to it, but at 195 and 196 of the application book said that that – and this was in‑chief – did not really adequately describe a VIN 3 lesion of 2 centimetres long.  Dr Dalrymple also said that he would not describe such a lesion as excessive or extensive.  There may be a mistranscription at 216.  There is no explanation at all for the multi‑genital cancer reference.  So that all we say is, it was open to a tribunal of fact and not something that the learned Chief Justice took into account to conclude that that letter was at least ambiguous, and it may also have provided some evidence of another contemporaneous document which was consistent with the applicant’s case that he had seen something on examination which was more than just the VIN 3 lesion.

I next want to take your Honour to the alleged words said in the surgery, which is set out at paragraph 93.  It was said in the case for the prosecution that just before the operation, just before the complainant went under the anaesthetic’s effects, the applicant said to her, “I am going to take your clitoris too”.  His Honour the learned Chief Justice thought that was significant because the argument was that the applicant did not believe he had informed consent because he had not told her that he was going to take that part of her anatomy.  She said that all she had been told about was an excision of the lesion, and that remark indicated that she must never have been told about that before.

There may be in that some circularity, but what there is not, in our submission, is an analysis of the evidence surrounding that particular piece of evidence.  Bearing in mind the first time that the complaint made complaint was something like three years after the event, there were a number of people in the operating theatre – this is all set out in the submissions so I am trying not to be too repetitive – a Nurse Ferrara said he definitely did not hear that.  Nurse Demmery said that they did not hear it.  Arnold, another nurse, did not hear it.  Thomas, which is the anaesthetist, had no recollection of it.  The evidence showed that Drs Thomas and Nurse Demmery were at the complainant’s head at the time that those words were allegedly uttered.

Dr Thomas, the anaesthetist, gave evidence that the combination of drugs were “capable of giving her unreliable recollections”.  That is at application book 247.  I should go back and give you references to Drs Thomas and Demmery as to their position by the complainant’s head at the relevant or critical time, 237 to 245, they say it was critical because that was the time at which the anaesthetic was about to take hold, and Dr Thomas said that people “tell you about dreams and funny stories” and that it is suspicious that drugs may cause that.

Dr Halliwell was called by the Crown to, in effect, rebut the suggestion.  Your Honours will find that at application book 346 to 347, and exhibit 12 is the MIMS book which describes one of the drugs at least as causing post‑operative hallucinatory episodes.

There was some inconsistency which your Honours will see in the cross‑examination at 108 and 109 as to where people were.  She had given a letter, I think, or a statement early on saying at the time that was said, Dr Thomas, the anaesthetist, and nurses had turned away, and there is a diagram of that in exhibit 4 at application book 667.  But at the trial, she said no, they were standing by her head, which was the clear evidence of everybody else.  So there was a little bit of inconsistency about detail.

All of those things, in our submission, need to be considered in a court of criminal appeal coming to a conclusion of guilt.  The repeated emphasis in the cases out of this Court is that the whole of the record has to be considered.  Without trawling through the fine detail of the trial, we are attempting to persuade your Honours that that is not what happened in the application of the proviso in the applicant’s case, the upshot of which is he was denied the right which he would have to a jury trial.

FRENCH CJ:   You say that the reasons of the Court of Criminal Appeal do not disclose a consideration of the whole of the evidence?

MR HAMILL:   Yes.

FRENCH CJ:   Not that they drew any wrong inferences or anything along the way?

MR HAMILL:   Well, we do make a bit of a complaint about the circularity in that part of it, but for the most part it is just that the whole of the evidence is not considered, that findings are made without looking at the countervailing evidence, that evidence favourable to the accused is not taken into account, that having come to a conclusion on parts of the evidence that the applicant’s evidence is rejected, then there is no real analysis of the credibility of the complainant.

Your Honours, we have dealt with the pathology evidence in some detail in our reply.  What it comes down to is because of the nature of the samples that were taken, the fact that lichen sclerosus did not show up on pathological examination proves very little.  Obviously, it was something that did not support the defence case and it is necessary to analyse that a little closely to get to that conclusion.  Dr Dalrymple, who was not one of the pathologists, said that a lesion such as lichen sclerosus could be missed on a random examination.

When one looks at exhibit M at page 640 of the application book, that is a diagram drawn by Dr Edwards who was the pathologist who actually cut the slides.  That is her diagram, although it was tendered through Dr Jain, who was the senior pathologist.  Dr Edwards’ evidence at 187 is that she did not examine the sample microscopically at all.  That is at application book 187, in cross‑examination:

Q.the specimen . . . was restricted to a macroscopic examination?

A.        Yes.

Q.       And is with your unassisted eyes?
A.       Yes.

Q.       You didn’t examine the specimen microscopically?
A.       No.

The learned Chief Justice at application book 1339, and I am not sure that this is not a mistranscription or a mistake, but what his Honour says at 1339, paragraph 27, in one of the three places he mentions the pathology is that Dr Edwards microscopically examined the specimen.  That is either a mistranscription or it is a mistake – a factual mistake.  It could have been a factual mistake driven by some odd evidence at 184, line 31 where, in a longish, answer Dr Edwards said:

So on this specimen I didn’t see any evidence of lichen sclerosis microscopically.

That is at 184, line 31.  But, in any event, the doctor did not examine it other than with her plain eyes.  Dr Jain said the same thing at 128, line 30.  So when one goes back to exhibit M, one really sees that the overwhelming amount of the samples taken are on the right side of the diagram, which is to say the left side of the labia, which is the area where the VIN 3 clearly was, so that the focus was on that part of the anatomy where the lesion, the VIN 3 lesion, was. 

The other slides – 10, 11 and 12 on that diagram are the only ones that come on that side of the labia which is marked on the accused’s diagram as having the “dys”.  The suggestion in the respondent’s submissions that these were not random samples, but in fact what Dr Edwards said at 184 and 183 was that the focus was on the diseased part of the labia, the part where the VIN 3 was shown and you see that on her diagram, but for the rest of it – and this is at 184, line 37:

we just broadly take intermittent samples –

I am reminded that the size of the slides themselves was fine as a human hair, which is to say less than point one of a millimetre thick, all of which gives rise to the possibility that we assert that the lack of pathology really did not take the case very far. 

Perhaps the most critical aspect of the case, and it is touched upon at page 1363, paragraph 98 of the Chief Justice’s reasons, is the absence of a complaint, or the delay in a complaint, and we have to acknowledge that his Honour said that he was conscious of the fact that there was no complaint for a considerable period of time, and that “She admitted she could have complained earlier”, and that that that was relevant in assessing her evidence.

His Honour did not though go into the details of that to any degree and we just seek to remind the Court of the fact that the consultation took place in July 2002, the surgery took place on 8 August 2002.  The complainant was in hospital for some five days.  Now, it must have been that in that time she was aware of the fact that an operation had been performed which removed her external genitalia in circumstances where she came to say that he had told her something quite different only a month before.  No one at the hospital was told that there was a problem.

On 19 August the complainant returned to the applicant, no complaint made, and returned in fact to have the sutures removed.  She preferred at that stage, because of the discomfort, to have them removed under anaesthetic, and so returned again on 22 August for that process to take place.  No complaint at all, and an oddity, we would respectfully submit, in going back to this surgeon who had done these things to her.  She must have known at that stage that he had performed surgery that she said was so far removed from that to which she had consented.  None of that is discussed in the judgment of the Court of Criminal Appeal, albeit that there is passing reference to the delay.

On 3 December 2002 and in May 2003 there was an attendance on the general practitioner, Dr Salisbury, no complaint.  Three years later in July 2005 there is complaint, both in terms of civil action and then not until 2008, six years after the surgery, is there a complaint to the police.  This was, in our submission, a major point, and really should have been given much more consideration by a Court of Criminal Appeal which has decided there has been an error in the process and is called upon to analyse the evidence in all of it.  That material, in our submission, did not get proper consideration.

As I am reminded, that also had its – apart from the sort of general proposition that it raises questions of credibility, it also raises questions of reliability and recall when a person is, in a sense, piecing things back together about what happened in a one hour consultation three or maybe six years earlier and what happened just before she went under an anaesthetic when some drugs, at least, had had some impact on her.

Your Honour, that is all I wish to say about the operation of the proviso, both legally and factually.  At paragraph 10 of the outline of submission we put a series of propositions that we suggest emerge from the cases, and what we ultimately say is that it was not open for the various reasons we have attempted to articulate for the court in this case to apply the proviso.

I am going to move to sentence and I am going to be very quick.  Ground 2.3 is the ground about the failure of the Court of Criminal Appeal to consider the residual discretion.  Your Honours will see our arguments in the written submissions at paragraph 65 and following, and we make the point in 65 that we had made the submission to the court that it was an appropriate case for the operation of the residual discretion not to increase the sentence.  We relied on Green & Quinn (2011) 244 CLR 462 at 26 – that is paragraph 26 and 43.

We also adduced evidence directly on point.  At paragraph 67 of our submissions we have set out the matters that we say gave rise to the application of the residual discretion, such as the deteriorating health of the respondent whilst in custody, the delay in the process and the imminent release of the respondent, and we have given some references in paragraph 67 to cases which support those propositions.

We do urge upon the Court the submission that Bugmy has resolved any controversy that might have existed, that it is incumbent on the Court of Criminal Appeal, or a Court of Criminal Appeal, to consider the operation of the proviso. I think at the very outset today I took your Honours to paragraph 73; it is (2013) 87 ALJR 1022 and at paragraph 73 – sorry, your Honours ‑ ‑ ‑

CRENNAN J:   Paragraph 24, perhaps?

MR HAMILL:   Paragraph 24.  Thank you, your Honour, it is.  At the very bottom of the page it is made, in our submission, entirely clear that even once a court forms a view that a sentence is manifestly inadequate, as Justice Hall did in some instances here, it then has to consider whether the appeal should be dismissed in the exercise of discretion, and what follows is that the appeal had to be allowed because of the failure of the court to do that, although in that case the court also failed to determine whether or not the sentence was manifestly inadequate.

So we would invite your Honours’ attention to the material that was tendered before the court because not only did the court not consider the residual discretion in a legal sense, but also it did not consider the evidence that was given.  There was a vast amount of evidence called by the applicant on the hearing of the appeal which showed his deterioration of health, et cetera. 

Ground 2.4 is the ground that asserts that Justice Hall in the Court of Criminal Appeal erred in interfering with the judge’s discretion.  I am just going to give your Honours some references to the evidence at application book 971 to 972.  Your Honours will see the history that came before the medical tribunal.  There was a depressive illness going back to 1996.  He had a major mental breakdown.  I am referring, now, to the remarks on sentence.  There was evidence of bankruptcy.  There was evidence of separation.  There was evidence from his wife in which she said that the move to Bega had some positive impacts but, basically, there were further issues in the practice of medicine down there that caused him to remain depressed.  The marriage broke up. 

There is a vast amount of evidence.  It went back some time as to how this applicant ended up being where he was with as, what the learned sentencing judge said, was a very promising start.  That amounted to what Judge Woods described as a significant mitigating feature of the case.  However, the Court of Criminal Appeal came to the conclusion that there were no mitigating features in the case. 

If necessary, your Honours – I beg your pardon, there is also a series of exhibits, the report of Drs Dalton and Nielssen.  There is an affidavit from the late Greg Murray which sets out some of the problems the applicant was having whilst in custody and perhaps most importantly, because of the reliance placed on it by the learned sentencing judge, was the affidavit of Sharon Reeves, the wife from whom the applicant was separated, which sets out that history. 

It was open to the sentencing judge to conclude that this was a significant mitigating feature and, we say, not open to the Court of Criminal Appeal to interfere with the exercise of that judgment.  But the reason that the court purported to – or that Justice Hall purported to do so was because he did not think that there was a causal connection established.

We have relied in our submissions on the Victorian case of Tsiaras [1996] 1 VR 398 at 400 where the court said that there may be mitigation whether or not the illness played part in the commission of the offence and we have also put on a supplementary list of authorities a New South Wales Court of Criminal Appeal decision of Israil [2002] NSWCCA 255 and we do that because in that case Chief Justice Spigelman set out from paragraph 21 the various ways in which mental illness might impact upon the sentencing process and none of that it seems was considered properly by the court. We just say that it was not open to the court to interfere with that finding. It was a perfectly appropriate finding based on entirely compelling evidence.

Your Honours, we also make a submission that the court - and this is the final ground of appeal - that the court failed to articulate any reason why this sentence was no good, but this sentence was good.  It really was a Markarian point that we make.  I am not going to articulate that any further than what is in the written submissions.  Those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Hamill.  Yes, Mr Babb.

MR BABB:   Your Honours, very briefly, there has been discussion at the outset in relation to the test to be applied in relation to consent and my submission is that it is quite clear that the Chief Justice unequivocally adopted the test as set out in Rogers v Whitaker and accepted that the failure to disclose the risks inherent in a procedure or explain alternative treatments does not vitiate consent for the purposes of criminal proceedings.  In the outline of oral submissions, I cite the paragraphs in the Court of Criminal Appeal judgment that your Honours have already discussed with my learned friend.  Those principles are well established and were confirmed in this case in the Court of Criminal Appeal.

The two factual issues at trial were firstly whether the operation was unwarranted and the applicant knew that it was unwarranted and, secondly, whether the complainant had not consented to the operation and the applicant knew that she had not consented.  Now, they were put as alternatives but they were not entirely separate because whether the applicant knew that the intended operation was unwarranted was relevant to whether he told the complainant what he intended to do. 

Your Honour Justice Keane, this comes back to the point that your Honour made about the relevance of questioning going to discussions about consequences that one would expect to have taken place had the nature of the operation been explained as more than the removal of a small flap of skin.

On the first issue, the expert evidence was unanimous, that the operation was unwarranted.  Nevertheless, the applicant maintained that he believed that the operation was appropriate and on sentence the trial judge found that there was a possibility that, however wrongly, the applicant believed in his own mind that it was appropriate to excise the complainant’s genitals entirely. 

Now, in terms of the questions said to arise on the special leave application, the first question said to arise in the applicant’s submissions is in what circumstances, if any, can a surgeon who performs an operation believing it to be necessary for a patient’s wellbeing be guilty of a crime requiring proof of malice or specific intent? 

Now, that question simply does not arise in this case because we are not dealing with a situation of a surgeon who performs an operation believing it to be necessary.  All that has been found is that the Crown has failed to prove beyond reasonable doubt that situation which is a significant difference.  There was a doubt that he did not know it was unwarranted as opposed to a positive belief that it was necessary which is the presupposition in that question. 

This was never a case about informed consent.  The Crown’s expert agreed that had the applicant shown the drawing and the diagram that was reconstructed for the trial to the complainant, which showed markings of areas to be excised, that that would have been sufficient to inform the complainant of the procedure.  I will take your Honours to application book 1, page 324 and the evidence of Professor Korda at line 20 and over to 325:

Q.       If she were not given such a diagram at all, then was she given enough information to make any proper consent?
A.       Well it is hard for me to comment because I wasn’t there but certainly that diagram explains the excision and the area that is removed, and also the ultimate appearance afterwards.

So it is quite clear as to what the expert evidence was as to what was sufficient evidence of informed consent.  It really revolved around the diagram that was said by the applicant to have been given, and that was not accepted by the complainant.  The question for the jury was – the real issue was whether the positive representation that only a small flap of skin would be removed was made by the applicant and whether that was said at the consultation.  That was the way that the trial was run and there was no dispute at trial between the parties.  The complainant had the localised VIN 3 lesion on the ‑ ‑ ‑

CRENNAN J:   May I just check, was the diagram the one that we were shown at 649 that the evidence was given about?

MR BABB:   No, your Honour.

CRENNAN J:   I am just conscious of the fact there is a diagram at 589 as well.

MR BABB:   No, your Honour.  The diagram in question is at 688.

CRENNAN J:   Thank you.

MR BABB:   The evidence of the applicant was that he drew that diagram, gave the copy of it to the complainant to take away with her but did not make any similar diagram on the consent form, which is exhibit A in these proceedings.  If you have a look at exhibit A this was the document said to have been prepared at the same time as the preparation of that diagram and at 578 that is the diagram drawn that the complainant says was the diagram that was drawn and shown to her and that the hash markings on the area that represented the lesion that she knew of was the area to be excised, the small flap of skin that she was told would be excised during that consultation.

BELL J:   The surgery that is proposed there is described as “simple vulvectomy”.  As I understand it, that term does refer to the removal of the labia and the clitoris.

MR BABB:   Yes, it does, your Honour.

BELL J:   Now, of course, as far as the complainant was concerned, without some explanation of what it meant, that was not necessarily helpful, but if you go to exhibit J at 586, can you just explain – this is the letter that was sent by the applicant to the treating general practitioner and the doctor refers there to the performance of a “relatively simple vulvectomy”.  Was there evidence about that?

MR BABB:   There was evidence about it.  The term “relatively simple” had no medical meaning.  I will find the reference for your Honour over the luncheon adjournment, but yes, the evidence was that that adverb before it had simply no meaning.  While we are on exhibit J, one can see that whilst my learned friend submitted that it was ambiguous as to whether there was any reference to dystrophy in it, it is clear that that paragraph is referring to the excision of this lesion, that being the VIN 3 lesion, and in the way that the trial was run – and I will take your Honours to this after the luncheon adjournment – the applicant in cross‑examination admitted that there was no reference to dystrophy in exhibit J and really raised no suggestion that any other words within that letter were a reference to dystrophy without that term being used.

FRENCH CJ:   That might be a convenient moment.  The Court will adjourn till 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Babb.

MR BABB:   Your Honour, before I get started, could I raise one question?  I would apply for a confidentiality order in relation to the contents of the file in this matter.  The complainants’ names are throughout the application books and it is just not a matter that they should be disclosed, in my submission.

FRENCH CJ:   Are you talking about just one complainant’s name?

MR BABB:   There is actually more than one, your Honour, because within the materials are the indecent assault complainants as well.

FRENCH CJ:   What is the particular order you are seeking?

MR BABB:   That there be non‑disclosure of the contents of the Court file in this matter.

FRENCH CJ:   That goes a lot further than the names, does it not?

MR BABB:   Yes, perhaps if I could have a discussion with my learned friend and perhaps we could come ‑ ‑ ‑

FRENCH CJ:   Maybe you could formulate something a little tighter.

MR BABB:   Certainly.  We will work out a draft form of orders.

GAGELER J:   The Court of Appeal’s judgment has been published, has it not?

MR BABB:   Yes, it has.

GAGELER J:   Is the name you are now seeking to supress the name that appears in paragraph 9, page 1335?

FRENCH CJ:   The name of one complainant is out in the media already, I think.

MR BABB:   Yes, I would have to check, your Honour, to make sure that this is the published version that is on the Supreme Court website, but I can have that checked.

FRENCH CJ:   Perhaps you can let us have a minute.  I think one name is in the public domain already and I think may have been for some time.  I am not sure about that, but you would need to check that for yourself.

MR BABB:   I will, thank you.  Your Honour Justice Bell, if I could just come back to the question you asked immediately before the break.  Professor Hacker at page 1, application book 311, line 48 was asked:

Does the adverb ‘relative’ add anything to a simple vulvectomy, is it a term you are familiar with?

A.       It is not a surgical term.

BELL J:   Did Dr Salisbury give evidence of her understanding of the letter?

MR BABB:   I will just check, your Honour.

BELL J:   On the face of it, before the surgery as performed the doctor has told the general practitioner that he intends conducting a procedure that will involve the removal of the external genitalia.

MR BABB:   I am not sure that it is specifically dealt with in relation to Dr Salisbury, but in relation to the theatre nurses, they all, in their evidence, indicated that they had a lack of understanding of what the term meant and I will check in relation to Dr Salisbury whether she gave evidence as to her understanding of the term.

KEANE J:   Whatever her understanding might have been, there certainly does not seem to be any suggestion at all that she passed on to the complainant that understanding.

MR BABB:   No.  Dr Salisbury’s evidence at application book 1, page 154, line 40 and following is a discussion of the receipt of the letter and her answer seems to suggest an understanding that she from the letter took that the VIN 3 lesion would be excised with whatever margin was appropriate for that type of lesion.

KEANE J:   Line 46, she says:

Well what he says here is a simple or partial vulvectomy excising the lesion with whatever margins are appropriate for that type of lesion.

MR BABB:   There was an abundance of evidence in relation to what was appropriate for that type of lesion.  All five of the expert gynaecologists and gynaecologist oncologists said that for a VIN 3 the appropriate surgery was simply to excise the lesion with a margin that most agreed would be about 5 millimetres around the lesion itself. 

The experts were agreed, as was the applicant, that for a VIN 3 lesion alone excision of the lesion with a margin was the appropriate surgery and the experts also agreed that the performance of a simple vulvectomy may, in some circumstances depending on the extent of the other indications of dystrophy and lichen sclerosis, may be warranted were there observations of extensive dystrophy throughout the vulva.

So they were issues not in dispute in this trial.  The real area of dispute was whether the applicant had widespread dystrophy, and the only evidence of that was the applicant’s claim that he saw it on examining her with the colposcope and that was the only way it could have been observed because no other testing had been done.  There were no biopsies taken of anything except for the VIN 3 lesion.  The crucial issue decided in this trial was what happened at the consultation on 5 July 2002.  Was there a discussion about the removal of the lesion and a margin, a small flap of skin, or was the complainant told that her genitalia, the full vulva and clitoris would be removed?

Now, the complainant was definite that a colposcope had not been used during the examination.  She said that she had previously been examined with a colposcope and that she was aware that you needed to apply the acid which is vinegar and there was expert evidence that that needed to be done by the application of swabs that had been soaked in vinegar with them left for a while and that the colposcope was a significant piece of machinery.

The complainant was adamant that nothing had been said about widespread abnormality of any type, no mention of dystrophy or any abnormality in relation to the rest of her vulva and that the only discussion had been in relation to the lesion, and she was clear that she had been told that only a small flap of skin was to be excised.  The real issue in the trial was was the jury satisfied beyond reasonable doubt that that is what the complainant had been told during this consultation.

In contrast to the complainant’s evidence, the applicant said that he had used a colposcope, saw widespread dystrophy, and drew diagrams that he recreated to show the extent of the excision and that he had never said that a small flap of skin was all that was to be removed.  Now, that was a straightforward factual dispute, not to say that it did not have far‑reaching implications for the case as a whole, but what was done at the consultation was not a complex issue.  In the approach of the Court of Criminal Appeal and Chief Justice Bathurst it was correct to apply the proviso.

There was no fundamental defect here when you look at the misdirection and it is accepted that it was a misdirection but you need to look at it in the context of the trial.  The major issue in this trial was whether the operation was warranted and the expert evidence all supported the conclusion that it was not warranted.  There was a wealth of material in that regard starting with the pathology that was done in relation to the tissue that had been excised, and that report from the pathologist is exhibit K in these proceedings.  It is at application book 2, page 610.  The specimen was examined macroscopically and the only abnormality was the lesion: 

The vulva is otherwise unremarkable –

was the conclusion and that is three lines from the bottom of the heading “Macroscopic Description”.

CRENNAN J:   Is 605 the request for that particular pathology?

MR BABB:   It is, your Honour, and it is written by the applicant and you can see that the applicant signed it under the name and address of the medical practitioner and tests requested vulva, clinical notes, VIN 3, just no reference to dystrophy, lichen sclerosis, or anything else.  The samples that were taken were very thin because the examination of them required light to pass through the tissue, so they were cut very thin but they were about 2 centimetres long, and that is in the evidence of Dr Edwards at 1 application book 185, line 10.

Whilst exhibit M details roughly where they were taken from and the fact that three of the 13 samples were taken from, as you face the diagram, the left‑hand side of the diagram, and 10 were taken from, as you face it, the right‑hand side of the diagram or the left labia minora, the evidence from the applicant was that the vulval dystrophy was over all of the vulva.

The applicant said that he was able to see the vulval dystrophy with the naked eye but the pathologist who macroscopically examined it noted it as being unremarkable and microscopically those samples taken had no indication of lichen sclerosis or vulval dystrophy.

FRENCH CJ:   Can you just remind how the issue of whether the issue of whether the operation was warranted went to liability simply on the question of malice?

MR BABB:   Yes, malice, your Honour, because the definition of malicious under the Crimes Act section 5 includes an act done with malice or without malice where it is an intentional infliction of harm that was not done with lawful excuse and lawful excuse requires two things; firstly, that consent has been obtained and secondly, that the operation was necessary or warranted surgical procedure.

FRENCH CJ:   But what was what you would put a kind of subsidiary issue is now the issue?

MR BABB:   Because of the misdirection and the focus on the appeal, but it certainly was not during the conduct of the trial and that is ‑ ‑ ‑

FRENCH CJ:   What is the implication of that?

MR BABB:   Well, in my submission ‑ ‑ ‑

FRENCH CJ:   You put it in under the proviso.  How does it fit into the proviso?

MR BABB:   It is not a fundamental defect because when you look at the way the trial was actually run ‑ ‑ ‑

FRENCH CJ:   Misdirection is not a fundamental defect.

MR BABB:   Misdirection is not a fundamental defect.  You need to look at what impact it had in the context of the trial as a whole and in the trial, as it was run here, it did not ‑ ‑ ‑

FRENCH CJ:   Well, does that amount to saying the trial was really about malice not consent, so it does not matter so much if there was a mistake about consent?  I mean, what is the proposition underlying this?

MR BABB:   Even on the subsidiary issue, the issue of consent, the trial was not about informed consent and whether ‑ ‑ ‑

FRENCH CJ:   Well, that is a different question.  That goes to the characterisation of the consent, and that is the debate about 101 and 102 in Chief Justice Bathurst’s judgment, is it not?

MR BABB:   But also it requires looking at really what was the issue here, and in my submission it was, was the complainant told that a small flap of skin would be removed, as she said, or was she told that the vulva would be removed?

FRENCH CJ:   Well, want of consent or want of honest belief as to consent, really, go to – they are in the same category as elements of the offence, are they not?

MR BABB:   Yes.

FRENCH CJ:   Is this not in the same territory as a misdirection as to an element of the offence?

MR BABB:   It really does go to the elements of the offence, and it goes to ‑ ‑ ‑

FRENCH CJ:   So it does not much matter whether the proposition that the procedure was unwarranted was the major issue at trial.  The jury still had to be satisfied beyond reasonable doubt of every element of the offence.

MR BABB:   Yes.

FRENCH CJ:   There were no informal admissions relevant to this.

MR BABB:   No, exactly, but it flavours what the focus was on here.  In terms of consent the real question was, was the complainant told about the nature and extent of the operation or was she only told that there would be excision of the lesion?

To that question, the Court of Criminal Appeal was correct in applying the proviso because it did not depend on an assessment of the credibility of the complainant alone.  There was a wealth of other material that supported the complainant.  There was exhibit A, the consent form, filled out at the time of the operation.  When looking at the consent form, the diagnosis, if your Honours go to page 578 of application book 2, the diagnosis was “VIN III”, no reference to anything other than “VIN III”.  The diagram noted only the lesion with the shading on it, and a notation “VIN III on Biopsy”.

It is significant that the consent form contained no reference to a condition of dystrophy or lichen sclerosis and the diagram was consistent with what the complainant said that she had been told.  The applicant, in his evidence, explained the omission by saying that the form was filled out in a matter of seconds and meant to be a rough idea of what was planned and that it was not a binding document.  He accepted it might have been misleading and could have been expressed better, but said that this is not a recommendation, this is not a plan for treatment.  So it is not a binding document in terms of what is occurring in a situation to give a rough idea of what is going on.  

GAGELER J:   Whose signature appears at the bottom of page 578?

MR BABB:   At the bottom of 578, that is the applicant’s signature, your Honour.  Over the page at 579, at the bottom of that page, is the complainant’s signature.  Then on the same day, following the filling‑out of the consent form, the applicant writes to the general practitioner who referred and that is exhibit J.  That is at 586 in application book 2, and again, no mention of any major abnormality, only the reference to the VIN 3 lesion.  In evidence, at 1 application book 421, the applicant said:

Now I agree I neglected to put down dystrophy and I don’t know why I did that.

That is not consistent with the submission from the applicant now that there may be a reference to “dystrophy” but it is referred to in some other terms as either “multi‑genital cancers” or “in situ cancer”.  The expert evidence, in that regard, was that dystrophy, lichen sclerosis are not cancer or pre‑cancer.  It is only VIN 3 lesions that can be described as pre‑cancer.  So that submission does not hold water.  It was again significant that the reference to excising the lesion in the fourth paragraph of exhibit J is exactly what the complainant says that she was told during the consultation.

Now, the operation took place on 8 August, the operation report is exhibit O, and that is at 607 following of application book 2.  Under the heading “Indication for Operation”, again, no mention of dystrophy or lichen sclerosis, “VIN III on biopsy” is noted as the only indication for the operation.

CRENNAN J:   Does that mean there was a biopsy done preoperatively?

MR BABB:   There was a biopsy done of the VIN 3 lesion at the request of Dr Salisbury and it was small biopsy taken out from the middle of the lesion which confirmed that it was in fact a precancerous lesion, but that was the only thing observed by Dr Salisbury and the only biopsy taken, and that material was available to the applicant at the time of the consultation on 5 July and was the reason for the referral to the applicant for expert opinion on the required surgery.

Now, as I indicated, the applicant acknowledged that a VIN 3 lesion did not warrant the procedure.  The true indication for the operation was said by the applicant and was accepted as possibly being warranted by each of the experts, widespread dystrophy, if it was noted but again it is omitted from the operation report.  Having taken the sample, it was sent away for the pathology that was done by Drs Edwards and Jain, and that is exhibit L at page 605. 

The applicant claimed that widespread dystrophy over the whole of her vulva was the basis for removal of the vulva and yet the clinical notes note only VIN III and the diagram represents the same diagram that was drawn in the admission form, exhibit A, which just shows the lesion hatched with no reference to any dystrophy or lichen sclerosis.

So having specified the condition to be tested, VIN 3, the applicant omitted any reference to the very condition requiring confirmation, that is dystrophy, a biopsy already having been taken of the VIN 3 lesion.

GAGELER J:   So are these submission you are now making really fleshing out what Chief Justice Bathurst said in paragraph 95?

MR BABB:   They are, your Honour.  They are really going to the application of the proviso and why I say it is warranted in this case.

KEANE J:   Mr Babb, I do not want to take you out of your way.  Are you taking us to the documents for which the applicant was responsible that described what happened in the consultation before the operation?  Are you going to take us to the document that is at page 633?

MR BABB:   Excuse me one moment, your Honour.  I can, your Honour.  Now this, sorry ‑ ‑ ‑

KEANE J:   Well, it has a date 2005 on the top, so am I correct in thinking that it was written, or the original of it was written by the applicant in 2005.

MR BABB:   That is correct.

KEANE J:   On page 634 at about line 19, the applicant writes:

I described the operation carefully with drawings that I gave her to take home.  I specifically discussed the sexual aspects –

and so forth down to, the complainant stated –

that she was not sexually active at that time did not anticipate any sexual relationship in the short term but was pleased that there would be the potential in her future.

Did the applicant have an explanation as to why that was not an accurate statement of what had occurred?

MR BABB:   Excuse me for one moment, your Honour.  The applicant was cross‑examined at length about this document and I will just check the references.

KEANE J:   It would certainly stretch credulity a bit to suggest that if she understood what was going to happen, that she said that she was pleased that there would be potential in the future.

MR BABB:   Yes.  Now, I am having difficulty answering your Honour’s question immediately and I will check that.

KEANE J:   Thanks, Mr Babb.

MR BABB:   This document was created following the commencement of civil proceedings and following an inquiry being made by the insurer and it is a response to the insurer.  It is also the case that exhibit P that my learned friend referred to, the one document that had a reference to “Dys” on it, and that is at application book 589, was the sole document that was not on the hospital file and was solely in the possession of the applicant until 2005 and was not disclosed until the writing of that letter.

CRENNAN J:   I think we were taken to 648, 649 in that setting and should we better understand the connection between the two?

MR BABB:   Sorry, which pages are you ‑ ‑ ‑

CRENNAN J:   Pages 648 and 649 because I might be mis‑recollecting this but I understood this has got four mentions of “Dys” whereas the one at 589 has got two mentions.  Should we better understand the connection between the two?

MR BABB:   Certainly.  Exhibit 11 was tendered and the evidence was that the applicant’s solicitor had gone through the document with the applicant and had written in legible handwriting what appeared and those – the “Dys” that is lower in each instance has been written by the applicant’s solicitor in exhibit 11 and the exhibit P the other document that has not been noted up by ‑ ‑ ‑

CRENNAN J:   So exhibit P is the exhibit of the original notes.

MR BABB:   It is an exhibit of a photocopy.  The original was not produced.  Only the photocopy went into evidence and exhibit P is the working document – is the document that was produced.  Excuse me for one moment.  Your Honour, I will continue to check that but my recollection of it is that the applicant maintained that everything in that exhibit was accurate.  I do not think he conceded at any stage that there were misrepresentations in that document even though cross‑examination took place. 

KEANE J:   Okay, thanks Mr Babb.

MR BABB:   In examining the Chief Justice’s approach to the application of the proviso on the principles that the applicant set out in their outline of oral submissions at page 3 in the series of bullet points, in my respectful submission, the Chief Justice did exactly what was required in relation to an application of the proviso; analysis of the whole of the evidence to see whether the Court of Criminal Appeal is satisfied of guilt.

Now, my learned friend points to references to the evidence that do not specifically appear there, but it is quite clear that at paragraph 91 on page 1361, the Chief Justice considered and outlined that:

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 . . . make its own assessment of the evidence and determine, making due allowance for the limitations that exist . . . whether the accused was proved beyond reasonable doubt to be guilty of the offence charged –

Clearly, his Honour took into account the whole of the evidence in applying the proviso here, analysis of the nature of the defect in the trial.  His Honour, it is submitted, correctly considered the misdirection in context and determined that there was no loss of a reasonable chance of acquittal, and to even get there, his Honour had to consider whether it was a fundamental defect, which his Honour did at paragraph 105.

FRENCH CJ:   Now, just how does that work?  His Honour concluded at 99 that he was persuaded that:

the evidence led at the trial proved the offence beyond reasonable doubt.

So the necessary condition for the application of the proviso under Weiss was satisfied on that basis.

MR BABB:   Yes.

FRENCH CJ:   Then he says:

Nor am I of the view that the direction resulted in the applicant being deprived of a real chance of acquittal.

Now, what is the real area of discourse here that we are looking at, once we have passed that necessary condition?  What is the basis of the real chance of acquittal that is being excluded?

MR BABB:   Yes, well, it is a matter of looking at the error in the context of the trial and seeing whether a real chance of acquittal has been excluded.

GAGELER J:   Acquittal by this jury?

MR BABB:   His Honour undertakes the process himself.  It has to be put in the context of the trial and the evidence led at trial and how the trial was conducted.  That is all his Honour was doing, in my submission, Justice Gageler.

GAGELER J:   I have not got anything to say.

MR BABB:   No.

FRENCH CJ:   Well, it does seem to feed into, really, his characterisation of the way the consent issue was played at trial.  Is that right?

MR BABB:   Yes.  He needed to consider the impact of the misdirection, and the misdirection was not in relation to the consent issue, yes.

BELL J:   And that was with a view to determining whether in the context of this trial there had been a substantial miscarriage of justice, to use the language of the common form provision.

MR BABB:   Absolutely, and his Honour specifically refers to the common form provision, and all his analysis is in the context of that provision.  In my submission, the applicant has not pointed to any error in the application of the proviso, and really, what has been examined are the factual questions concerning the particular evidence in the case and the significance in the context of the case as it was run. 

The Court of Criminal Appeal applied the correct principles and there is no error of principle that can be identified in the way that it has been provided, nor does the analysis of the Chief Justice not withstand scrutiny.  In my respectful submission, it was quite right to find that if the applicant had observed dystrophy, as he said, it was both on his evidence and the expert evidence a serious matter, and it is inconceivable that it would not have been noted.

FRENCH CJ:   Does it work like this?  His Honour has determined that on his view of the evidence guilt is proved beyond reasonable doubt and then the question is whether, had the jury been correctly directed, they might have come to a different conclusion.  There is a real chance that they might have come to a different conclusion.  Is that the secondary inquiry that is really undertaken when he talks about a real chance of acquittal?

MR BABB:   I am not sure that he ‑ ‑ ‑

FRENCH CJ:   He does not put it that way.  I am just trying to look at the logical structure of it.

MR BABB:   Yes.

FRENCH CJ:   Linking it to those words, “real chance of acquittal” being lost.

MR BABB:  Yes.

KEANE J:   How could that formulation sit with a conclusion of guilt beyond reasonable doubt?

FRENCH CJ:   That is the issue.  

MR BABB:   Yes.

FRENCH CJ:   Is it opening the possibility that a jury might have taken a different view of the evidence?

MR BABB:   The second part of the test is really opening that.

FRENCH CJ:   That is the possibility of its being excluded by his analysis of what the real issue was at trial.

MR BABB:   Exactly.  The Court has to make its own assessment of the evidence and determine whether it is satisfied beyond reasonable doubt, but a second stage is considering whether an alternative view was possible.

FRENCH CJ:   This is not the territory of looking at a defect of such a character that you really cannot make a judgment of that first question.

MR BABB:   No.  In my submission, it is not.  It is quite different to the other cases where, for example, criminal responsibility was completely misstated in a way that it was put here.  There was an addition to the direction but within it was the essence of the correct direction and the trial and the way that it was run meant that there was no substantial miscarriage of justice.  Unless I can assist your Honours further, I will move off the proviso.

FRENCH CJ:   Yes.

CRENNAN J:   May I just ask you about the submissions in relation to sentence?

MR BABB:   Yes.

FRENCH CJ:   You are about to move on to that, I think, are you not?

CRENNAN J:   Are you coming to that?

MR BABB:   Yes.

CRENNAN J:   All right.  I was just going to flag for you, if I may ‑ ‑ ‑

MR BABB:   Yes, please do.

CRENNAN J:   ‑ ‑ ‑whether it would be right to take this to be a post‑Bugmy submission that a remitter is appropriate.  In other words, you would be making a distinction between the grant of special leave in relation to the grounds concerning conviction – a grant of special leave in relation to the grounds concerning sentence.  I will just flag it so that you may deal with it.

MR BABB:   Yes, okay.

CRENNAN J:   I just do not want to misunderstand your written submissions.

MR BABB:   No.  Well, taking that point on directly, my written submissions do not argue that the discretion, or that the evidence that had been led in relation to the medical condition of the applicant had been considered at all.  There is no reference to the discretion and that evidence and in my submission it would be appropriate to remit the matter back for consideration of that material. 

In relation to sentence, however, the respondent submits that the CCA did not err in relation to the applicant’s assessment of the applicant’s depression.  There was no statement by the Court of Criminal Appeal that it was somehow limited to causal connection.  The Crown submission was that depression was relevant to the subjective case, and this is at 3 application book 1405.  At line 50 the real submission was that undue weight was placed on the consideration of the depressive elements.  Now, the Court of Criminal Appeal also did not find that there had to be a link between mental illness and it being causative of the offending, and that is at paragraph 265, application book 1410, at line 30:

His medical condition was a circumstance that the sentencing judge was entitled to regard as one of the relevant subjective circumstances.

However, the sentencing judge gave excessive weight to the depressive condition and this is at the same page, page 1410, paragraph 266, and that was a reasonable finding when, if your Honours turn back to page 1409, one looks at the remarks of the sentencing judge at 261:

“In relation to each of the four offences . . . the significant mitigating effect of the severe mental illness by which I find he was affected at the time of each of the offences –

Now, in going through the evidence there is no support for that finding at all.  There simply was no evidence upon which such a finding could have been made and I take your Honours firstly to the report of Dr Olav Nielssen and that is at page 1052 of the same application book and the relevant portions are at 1057 starting at line 30:

Dr Samuels reviewed his diagnosis and concluded that Dr Reeves had a personality disorder with narcissistic features –

and the significant paragraphs follow:

Dr Reeves denied committing the offences for which he was convicted at trial and indicated that he intended to appeal the convictions.  He reported that he was receiving treatment for his depressive illness at the time . . . and did not feel especially depressed at that time.  He denied the existence of any connection between his psychiatric disorder and his alleged behaviour while working at Bega.

Sexual offences are not typically associated with depression . . . Dr Reeves maintained that his treatment decision in the case of [the complainant] was based on his clinical and research experience with the condition and was not affected by the presence of depressed mood.

Now, Dr Nielssen did not go on to make any finding that he was significantly depressed at the time of the offending and there was no evidence that contradicted what the applicant was telling Dr Nielssen.  It is of course the case that some people suffering from a mental illness may not have sufficient self‑realisation but Dr Dalton who was the treating psychiatrist at 1049 of the application book, exhibit SB, in relation to the relevant period which is the fourth paragraph on that page says:

From April 2002 until July 2004, Mr Reeves was in Bega and he still managed for the most part to see me monthly with one lapse for seven months.  During this period, when seen, his mood appeared stable and he took his medication regularly –

That is all that is said about that period.  There is no indication of significant depression.  The focus of the applicant in their submissions to this Court that somehow mental illness was linked by the Court of Criminal Appeal to only being available where it was relevant to causation is misplaced and the Court of Criminal Appeal was correct to find that excessive weight had been placed on the existence of a severe depression and in fact the sentencing judge specifically said that he would have sentenced the applicant to a significantly lengthier term but for his finding about severe depression at the time of committing these offences.

In relation to the finding that there was manifest inadequacy was found in relation to – individually – two of the offences, the infliction of grievous bodily harm at paragraphs 173 to 174 of the Court of Criminal Appeal judgment.  The objective seriousness of that offence was outlined by Justice Hall and he formed the view that it was manifestly inadequate and extremely serious and that the sentence imposed needed to be increased which is a standard way of approaching a Crown appeal, and similarly the obtained benefit by deception offence, the errors were set out at paragraph 234 of the Court of Criminal Appeal judgment.

Also, there was a finding that the totality in the way that the sentence had been structured with the lack of accumulation of the number of the offences meant that the total overall sentence was inadequate.  There was no error of approach via the Court of Criminal Appeal in relation to the sentence and so the only issue really was the failure to consider the discretion and to note the evidence that had been adduced in that regard.  It should have been noted and considered.  They are my submissions in relation to sentence, unless I can assist the Court further.  Thank you, your Honour.

FRENCH CJ:   Thank you, Mr Babb.  Yes, Mr Hamill.

MR HAMILL:   Thank you, if I could just deal quickly with the last point.  The evidence of the applicant’s condition ‑ ‑ ‑

FRENCH CJ:   We are getting some interference, I think.

MR HAMILL:   I might bat on, if it please the Court.

FRENCH CJ:   Yes, I think if you do.

MR HAMILL:   The evidence of the applicant’s psychiatric condition came in a number of sources and it was not simply the evidence of Dr Nielssen.  Part of the important evidence which his Honour, the learned sentencing judge, accepted and acted upon was the affidavit of the applicant’s wife.  That, your Honour, is at 1060 and following.  In particular, in terms of the timing of the applicant’s condition, she describes in some detail the progress of his psychiatric illness through to a time in the late 90s when she thought that he was suicidal and that was something that was also echoed in his treating psychiatrist, Dr Dalton. 

Then he moved to the South Coast and there is some evidence at what is paragraph 26 of the affidavit that the stresses involved in the practice were just as bad there, if not worse, than Sydney.  Then, in July 2002, his mother passed away and he became quiet and withdrawn after her death.  That is July 2002, which is just a month before the circumstances giving rise to the major allegation.

So that the evidence came in a number of forms and it was open as a matter of fact for the sentencing judge to find that he was depressed at the time of the offending.  He was, of course, at that stage, still taking medication for a serious depression.  He was still seeing a psychiatrist on a monthly basis for a serious depression and the finding of fact that the learned sentencing judge made, we respectfully submit, was open to him to make and it is not for the Court of Criminal Appeal, in our respectful submission, to interfere with a finding of fact that is open on the evidence.  Nor is it, as the Court of Criminal Appeal seemed to do, to take a different view of what weight should be afforded to the particular factors relevant to sentence.  So that is our complaint under that ground.

Whilst my learned friend puts to the Court that the causal link was not critical, when one looks at the judgment of Justice Hall, his Honour finds that there is no significant mitigating features and his Honour also finds that there is no connection between – that Dr Nielssen’s evidence did not go to that connection.  So, there seems to be little other explanation. 

A very minor point, but one that I should draw to your attention, concerns the evidence surrounding the – and it arose out of a question asked by your Honour Justice Crennan - request for pathology and the fact that it did not make reference to the dystrophy.  Dr Hacker gave evidence, and I draw your Honours’ attention to it, at page 309 of the application book where he was asked whether you would expect “to invite the pathologists’ attention to” that other area of disease if it existed, and what Dr Hacker said was:

That would be idea; it does not always happen in practice.

The other matter raised by my learned friend concerned the fact that the applicant’s evidence was that the dystrophy was all over the vulva.  We have dealt with this in the reply, but I do draw your Honours’ attention to his evidence at application book 387, line 47 and 402, line 32, where he described that disease as “patchy”, and he did use the words “all over” at some stages, but he also used the word “patchy”, and that explained, at last from his perspective, how it may not have been observed on pathology.

We do say ultimately, your Honours, that the evidentiary matters that have been raised in the Court are matters that ultimately should have been decided by a jury, and we harken back to Wilde v The Queen and the statement of Justice Deane, albeit in the minority on the outcome, where his Honour referred to the fundamental prescript of the administration of criminal justice being that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law, and specifically went on to say that the proviso in section 6(1) relating to no substantial miscarriage of justice does not negate that principle. 

We respectfully submit that each of the evidentiary matters raised by the respondent is, in a sense, answered in our submissions in reply and that the ultimate outcome of this case is that the applicant ought to have that which is he is entitled to, which is a trial according to law in accordance with the fundamental prescript referred to by Justice Deane in that case.  Those are my submissions in reply.

FRENCH CJ:   Yes, thank you, Mr Hamill.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 3.16 PM THE MATTER WAS ADJOURNED