Robert Neil Burtt v R No. 4245 Judgment No. SCCRM 93/227 Number of Pages 7 Indecent Assault
[1993] SASC 4245
•5 November 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ
CWDS
Indecent assault and unlawful sexual intercourse - course of conduct between 1984 and 1990 - girl aged between 8 and 13 - appeal against conviction on the ground that evidence of two doctors who found the girl to be suffering from vulva warts and thrush in 1988 and 1989 was inadmissible - admission of evidence upheld on ground that such evidence was on medical evidence capable of proving that the girl had experienced sexual intercourse - but the evidence could not connect the appellant with the conduct alleged - direction of the Judge amounted to telling the jury to ignore the evidence of the warts and thrush - no miscarriage of justice - appeal dismissed.
HRNG ADELAIDE, 23 September 1993 #DATE 5:11:1993
Counsel for appellant: Mr C Kourakis
Solicitors for appellant: Caldicott and Co
Counsel for respondent: Ms W Abraham
Solicitors for respondent: Caldicott and Co (sic)
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J The appellant was convicted by a jury of one count of indecent assault and six counts of unlawful sexual intercourse. They occurred between October 1984 and March 1990. The offences were all committed against the same girl. She was 8 years of age in 1984 and 13 or thereabouts at the time of the last offence. The appellant lived with the mother of the victim at Murray Bridge from 1983 until 1990. 2. Counsel for the Crown in opening to the jury said:-
"However, it is the Crown case that within only a few months
of having moved into the house at Murray Bridge, the accused
began to sexually interfere with Lisa Neville. Put simply, it
is the Crown case that over a period spanning some 8 years from
1983 until 1990, the accused repeatedly forced this young girl
Lisa Neville to participate in numerous episodes of sexual
activity. This behaviour, so you will hear, began when she was
only 7. In the beginning, it involved the accused allegedly
placing his hand inside her pyjama pants and rubbing the outside
of her vagina. However, still while Lisa was only 7, it is
alleged that the accused on a number of separate occasions also
rubbed his penis on the outside of her vagina. It is further
alleged that as she became older, the accused regularly engaged
in full sexual intercourse with her as well as a number of acts
of oral sex. All this by the time she was 13. It is further
alleged that on no less than two occasions, Mr Burtt forced Lisa
Neville, aged 13, to suck his penis whilst at the same time
licking her vagina - an act which he is alleged to have
described to her as a 69er.
The evidence will disclose that these incidents took place in
various locations. These locations included in Lisa's bedroom,
the back seat of the accused's car when he would take Lisa for a
drive, and in a caravan which he occupied for some months." And -
"However, before I do, let me say this, in bringing these,
charges against the accused, the Crown has not laid a separate
charge for each and every allegation of sexual interference by
the accused upon Lisa over that 8-year period. It will become
clear to you all during the course of her evidence, on the Crown
case, there were many other occasions, apart from the seven
alleged, when Mr Burtt forced Lisa to participate in sexual
behaviour with him during that period. Some of these acts you
will hear described during Lisa's evidence, some of them
occurring prior to October 1984, which is the date alleged in
the first count.
The seven counts, which are set out in the document before
you, are laid as representative counts. In other words, they
stand as representative of Mr Burtt's course of conduct over
that 8-year period. At the end of the day you will need to be
satisfied that the specific allegation, which forms the basis of
each count, has been proven by the Crown before you may convict
the accused on that count.
In addition to calling Lisa Neville to describe what occurred
to her, you will also hear evidence from Dr Margaret Moody. Dr
Moody, who is the head of the Sexual Assault Unit at the Queen
Elizabeth Hospital, will describe how in August of last year she
examined Lisa Neville's genital region. She will tell you that
her examination of Lisa Neville revealed a healed tear to Lisa's
hymen. This, Dr Moody will tell you, is consistent with Lisa's
vagina having been penetrated in the past by an object such as a
penis.
In addition to Dr Moody's evidence, you will also hear
evidence from other doctors who saw Lisa and who are able to
assist us, through their records of various dates, as to when
they examined her. That will help us later on to link up with
the allegations which are made." 3. The evidence of the victim was capable of proving each count. The jury must have accepted her evidence as being accurate beyond reasonable doubt. The jury must have accepted her evidence despite the sworn denials of the appellant. 4. Prior to the start of the trial proper Mr Boylan, for the appellant, objected to some evidence which he knew the Crown proposed to call. That is, it was debated in the absence of the jury. 5. The evidence to which Mr Boylan objected was the evidence of two doctors in general practice in Murray Bridge. They had either treated or examined the victim the one for vulva warts, the other for thrush. Dr Mills treated the victim for vaginal thrush on 10th May 1988 when the victim was 12. Dr Beckoff examined her in relation to vulva warts on 17th February 1989, about a month after her thirteenth birthday. In August 1989, in hospital, he cauterised the warts. 6. The learned trial Judge overruled the objection. The learned trial Judge ruled that the evidence could be received. 7. The two grounds of appeal are that the learned trial Judge erred in admitting the evidence of each doctor. 8. Mr Boylan put his submissions to us very clearly thus:-
"There was no corroboration of the complainant's evidence,
and it's my submission then it really boiled down to a case
which I think had been referred to in some other cases as an
oath against oath case. The appeal is brought on the grounds,
or, in fact, one ground, the evidence of Doctors Mills and
Beckoff should not have been admitted and very briefly the
argument is that given the fact that the girl was living at home
at the time with her mother and sisters, and given her age and
given the fact that no evidence was adduced by the Crown about
other possible causes of the warts and thrush being sexually
transmitted, that it must have appeared to the jury that the
only candidate who could be responsible for what could have been
sexually transmitted conditions was the accused, and that if
Your Honours please, in a nutshell, is what the appeal is
about." 9. The two doctors were not called to give oral evidence. Mr Boylan objected to the receipt of their evidence. His objection failed. In those circumstances he did not require the doctors to be called. Their evidence was received as agreed facts. 10. The Crown called Dr Margaret Moody. She swore that she had been "head of unit at the Sexual Assault Services at Queen Elizabeth Hospital. At the trial Mr Boylan said "Dr Moody's qualifications and experiences are not referred to...." 11. Dr Moody was examined about thrush and vulva warts. Her evidence was:-
"Q. Could you tell us in general terms what vaginal thrush
is and how it may be caused.
A. Vaginal thrush occurs by the infection of a yeast
organism. The yeast organism is usually present in the vagina
in small numbers but, under particular circumstances, it can
multiply and cause symptoms. It usually causes most trouble in
woman, or girls, who have hormonal activity present. It can
occur in very young girls and then in girls who are approaching
puberty and any time thereafter. And it produces symptoms of
irritation, soreness and discharge.
Q. How may it be treated.
A. It's usually treated by medications like creams or vaginal
tablets. And the most common used is the one called Canesten.
HIS HONOUR Q. That is not predictive of sexual activity.
A. It is not necessarily predictive of sexual activity, no,
but it is most commonly associated and can be transmitted during
sexual activity.
Q. How do you mean 'transmitted'. From whom to whom.
A. From between partners.
Q. From the female to the male.
A. Yes, and from the male to the female.
Q. Does the male carry the yeast as well.
A. Yes.
XN Q. If I could turn your attention to vulva warts. Could
you tell us what they are and, secondly, could you tell us how
they may be caused.
A. Vulva warts are like warts anywhere else on the body.
They are cauliflower-like lumps that appear on the moist tissues
of the genital area. They can be very tiny or they can grow to
quite a large size. Warts in general can be classified into a
number of types, I think, up to about 18 - and some types are
quite particular to particular areas of the body. So that there
is a group of warts that are limited to the genital area. But
they can only be typed by very specialised laboratory
procedures. Other warts may occur on the hands or any other
part of the skin, but they may also occur in the genital area.
HIS HONOUR Q. What Mr Birchall asked you is what is the cause
of the eruption of the warts in the vagina.
A. That is a virus infection.
Q. From what source.
A. It may be produced by contact with other parts of that
person's body or another person's body that is carrying the
virus. It is also possible for the virus to be picked up from
things like towels in the bath and it usually gains entry
through some break in the surface, like a minor scratch or
something of the sort." 12. There was no cross-examination. In his Outline Mr Boylan wrote:-
"General Submissions Evidence from Doctors Beckoff and
Mills that the complainant had, during the period of the alleged
offending, suffered from genital warts and thrush should not
have been admitted. That impugned evidence was highly
prejudicial in itself, but was made even more so by Dr Moody's
evidence that the condition was sexually transmissible. The
nature of the evidence and the circumstances of the case made it
impossible for the error in admitting the evidence to be cured
by direction of the Learned Trial Judge.
Admissibility
1. There was no evidence that the appellant had ever suffered
from genital warts or thrush. The Crown could not establish any
connection between the appellant and the complainant's suffering
from those conditions (additional transcript, p4). The evidence
was irrelevant and, therefore, inadmissible.
2. While the evidence about genital warts and thrush was
non-probative against the appellant, it was highly prejudicial -
(a) Dr Moody gave evidence that thrush is most commonly
associated with sexual activity (p109 line 27);
(b) Dr Moody gave evidence that thrush can be transmitted
during sexual activity (p109 line 28). And it is a clear
inference from the evidence that genital warts could be
similarly transmitted (p91, line 18).
The combined effect of the evidence of Drs Beckoff, Mills and
Moody was that during the period of alleged offending, the
complainant, who was a twelve year old living with her mother
and occasionally with her natural father, suffered from sexually
transmitted conditions. That evidence is highly suggestive of
the appellant's having had sexual contact with her." 13. The evidence of the doctors was not capable of helping to prove that the appellant had committed any offence on or against the girl. It was not capable of proving that he had had sexual intercourse with the victim at any time. Nor was it capable of proving that he had had any physical contact with her. There was, as Mr Boylan said to the learned trial Judge and to us, nothing to connect the warts or the thrush suffered by the victim to the appellant. 14. I think that the evidence was admissible. I do not discuss its possible rejection in exercise of discretion. In the view which I take of the case that does not matter. I think it was admissible to help in proving that the victim had engaged in some sexual activity. That was relevant. Dr Moody had spoken of the absence of the hymen. That in no way connected the appellant with the victim. But it showed, for what it was worth, that there had been some sexual activity on the part of the victim. So with vulva warts and thrush once the Court had received the evidence of Dr Moody that they could be transmitted by sexual contact. I see little value in the evidence. But I do not think it so lacking in probative value (probative on the periphery) as to make it inadmissible. 15. But whether the evidence should have been received or not its admission did not cause any miscarriage of justice. The evidence may have been capable of excluding any idea that the victim had had no sexual experience. That really carried the matter nowhere. The evidence did not inculpate the appellant. Mr Boylan suggested the jury may have treated the appellant as the only candidate to have transmitted disease to the victim by sexual intercourse. I cannot accept that argument. I do not think that the jury could possibly have so reasoned. Apart from their own powers of reasoning the direction of the learned trial Judge left no room for such reasoning. Nor for giving any weight at all to the evidence of the two doctors. His Honour said:-
"It was three weeks before the examination. But how long
before the three weeks, she was unable to say. You have heard
evidence of the thrush and the vaginal warts. That evidence,
ladies and gentlemen, is there, but it seems not to lead
anywhere. They are not sexually transmitted conditions. They
just occur and can occur quite spontaneously in young girls.
They can be brought about by all sort of things, according to Dr
Moody." 16. I emphasise the statement that the evidence of thrush and vaginal warts "seems not to lead anywhere". And the statement that these diseases "can occur quite spontaneously in young girls". His Honour made the latter remark perhaps inconsistently with the evidence of Dr Moody who said, "They are sexually transmitted conditions". But be that as it may, the direction of the learned trial Judge must have led the jury, if it needed any leading, to take no notice of the vulva warts or the thrush. 17. Despite the forceful submission of Mr Boylan I think that the directions of the learned trial Judge amounted to his telling the jury to take no notice of the evidence of the two doctors. If I am wrong on this score of admissibility, that is if the evidence of the doctors was inadmissible, I think that directions cure any such wrongful admission of that evidence. 18. The fact of the matter in this case is that the jury must have accepted that the evidence of the victim was correct and must have accepted that beyond reasonable doubt. The jury would have returned verdicts of guilty even if the evidence of the two doctors had not been admitted. 19. I would dismiss the appeal.
JUDGE2 MULLIGHAN J The circumstances giving rise to this appeal are set out in the reasons of Bollen J. In my view the evidence that the girl suffered from thrush and vaginal warts was not admissible. In the circumstances it was not capable of proving that the girl had engaged in sexual activity let alone with the accused who was not asked in examination or cross-examination if he had ever suffered from any condition which could have been communicated to the girl by sexual activity with her. Nevertheless the direction given by the learned Trial Judge made it plain that the evidence was not probative of any fact in issue. He said:
"That evidence, ladies and gentlemen, is there, but it
seems not to lead anywhere. They are not sexually transmitted
conditions. They just occur and can occur quite spontaneously
in young girls. They can be brought about by all sorts of
things, according to Dr Moody." 2. Whilst the last sentence does not accurately reflect Dr. Moody's evidence that vaginal thrush "is not necessarily predictive of sexual activity, but is most commonly associated and can be transmitted during sexual activity", the thrust of his direction was correct in the sense that the evidence was not capable of proving any fact in issue. 3. The jury could not have been deflected from the issues at the trial by this evidence and there is no reason to suppose that the verdicts are unsound. I would dismiss the appeal.
JUDGE3 DUGGAN J I agree with Bollen J's conclusion that this appeal should be dismissed. 2. It was common ground that the evidence did not establish any link between either the warts or the thrush and the activities of the appellant. Furthermore I am of the opinion that the evidence did not take the case further in any other respect. Dr Moody stated that the vaginal thrush could be transmitted through sexual activity, but that consideration was of no probative value in the circumstances of this case. The variety of ways in which the warts could originate also deprived this evidence of any probative value. 3. As the learned trial judge told the jury, the evidence led nowhere. Although I am of the view that the evidence was irrelevant I am also convinced that its reception did not lead to any miscarriage of justice.
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