It became apparent that it was the prosecution who could not put anything to the contrary. Counsel for the accused contended that, although the accused did not have to prove anything, the "evidence of an expert in relation to Dr Alramadan's, leg and knee problems assist the accused to raise a doubt in the mind of the jury as to his ability; one, to climb onto the examination table; secondly, to separate the legs of the complainant with his knees".
28 The reasons for rejection of Dr Nicholls as a witness, can only be inferred from his Honour's remarks in the course of argument with counsel. From these remarks, as often occurs, a change in emphasis can be divined as the argument progressed. Before he read the report, it appears that his Honour was concerned that it might be difficult to direct the jury as to the burden of proof, if the accused had sought to raise, by independent expert evidence, a positive defence. Secondly, there appears to have been a concern that the prosecution could not respond to the evidence, either because it was consistent with that of the accused and had not been challenged in cross-examination of the accused, or because contrary evidence would involve splitting the prosecution case. At a practical level, the perceived problem may have been that the prosecution would never be in a position to call evidence in rebuttal because no orthopaedic surgeon had witnessed the demonstration in Court or heard the accused's evidence and there was no procedure whereby, during the trial, it would be possible to have another orthopaedic surgeon examine the accused, even if he consented.
29 Unless the jury accepted that intercourse took place in the manner asserted by the complainant, the Appellant must have been acquitted. Even though the evidence of the Appellant, taken together with the proposed evidence of Dr Nicholls, did not establish impossibility, it tended to show a degree of physical difficulty. The evidence of the accused that his physical disabilities rendered the account given by the complainant implausible was clearly evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" for the purposes of s 55 of the Evidence Act 1995 (NSW). There is no reason to suppose that evidence from Dr Nicholls would not have been relevant in precisely the same way. As already noted, the form of the report was objectionable and it may be that, if properly tested on a voir dire, it could have been demonstrated that his opinions were not wholly or substantially based on specialised knowledge: s 79 of the Evidence Act. Alternatively, it may have been established that his opinions were based on a misapprehension as to the facts and that, once the evidence adduced at trial was put to him, his opinion would not have assisted. However, this appears not to have been the basis on which the evidence was rejected and there was certainly no voir dire. If these issues had been sorted out, it is possible that the evidence might still have been rejected, for example, pursuant to s 135 of the Evidence Act, on the basis that it had little probative value and might mislead or confuse the jury. Nevertheless, the circumstances in which that provision might be invoked against an accused person in a criminal trial would probably be limited.
30 There were also passages in the course of argument at trial in which the trial judge appeared to be concerned that the doctor was giving an opinion on a matter which was an issue to be determined by the jury: Tcpt, 25/09/06, p 4 (15)-(55). If that were the case, the Appellant argues that that would be an error because s 80 of the Evidence Act provides that an opinion is not inadmissible only because it is about a fact in issue: see s 80(a).
31 Whether his Honour in fact accepted that view is somewhat unclear. It would be difficult, contemporaneously, to hold the view that the evidence was not relevant and that it was about a fact in issue.
32 On another view, the reason for rejection may have been that the evidence would merely "corroborate" the evidence given by the accused: Tcpt, 25/09/06, p 53 (25). In that sense, the evidence may have been seen as seeking to bolster the credibility of the accused. However, that would not mean that the evidence was irrelevant: s 55(2)(a).
33 None of these bases for rejection is persuasive. If Dr Nicholls had been properly qualified and the nature and extent of his examination and the bases of his opinion identified, it may well be that he could have expressed an expert opinion as to the likelihood of the Appellant climbing onto the examination table in the manner described by the complainant, given the functional impairment caused by the injuries to his left leg. However, as will be noted below, in a practical sense the probative force of the proposed evidence was likely to be quite limited.
Evidence of Dr White
34 The second witness rejected by the trial judge was Dr Bernadette White. Again, to appreciate the significance of her evidence it is necessary to return to aspects of the trial.
35 A significant element of the prosecution case was that an examination took place at Orange Base Hospital a little under 24 hours after the sexual activity took place, namely on the afternoon of 9 December 2005. Doctor Judith Ross examined the complainant and took oral and vaginal swabs. A high vaginal swab demonstrated the presence of semen with a profile which matched the Appellant's DNA. Dr Ross also gave evidence of examining the complainant's right labia and finding redness and tenderness. She also found a red puncture wound in the right arm which she considered was caused by a needle of the kind used for taking blood or giving an injection into a vein: Tcpt, 20/09/06, p 43. This evidence was consistent with three elements of the complainant's story, namely that she was given diazepam in her right arm, that the act of intercourse was rough and abrasive and that he ejaculated in her vagina. In relation to the labia minore, which are the internal lips at the vaginal opening, Dr Ross noted both localised erythema or redness, and tenderness to palpitation: p 47. She said that these effects "could have been caused by blunt pressure on those tissues": p 43 (35).
36 Doctor Ross was not cross-examined in relation to the significance of the high semen encountered on a high vaginal swab, nor with respect to her description of the labia minore.
37 As with Dr Nicholls, discussion of the proposed evidence of Dr Bernadette White was based upon a letter provided by her to the Appellant's solicitors dated 12 September 2006, which was the first day of the trial. Her report was brief and the relevant passage may be set out in full:
"I understand that you are seeking from me advice as to, other than through sexual intercourse, how semen could be present in the upper vagina. If [the complainant] did have a used condom containing semen there are a number of ways by which the semen could be placed in the vaginal [sic]. One would be to use a syringe to draw up the semen from the condom and insert it into the vagina, alternatively it would be possible to place either the unsealed condom or a sealed condom with a hole in it into the vagina to allow the fluid to leak out and then remove the condom. I do not believe it would be necessary for the patient to lie in any particular position for the semen to remain in the vagina. It is certainly accepted that even when through normal intercourse semen is deposited at the opening of the vagina or the lower part of the vagina, that it can nonetheless subsequently be found in the upper part of the vagina."
38 The report of Dr White was dealt with differently to that of Dr Nicholls. Apart from the fact that the prosecution objected to Dr White being called, no reason was articulated and the only matter addressed by counsel for the accused in support of the proposed tender was that he had not put the questions addressed by Dr White to Dr Ross because the latter had made "no finding of semen in the upper vaginal area": Tcpt, 25/09/06, p 6 (30). (The finding was made by the technician in the analytical laboratories.) However, his Honour gave the following ruling (p 7):
"I accept that the matters raised in that report dated 12 September 2006 do raise a matter of relevance, but that no question was put to any witness called by the Crown in relation to the matters raised by Dr White and the report only having been seen by the Crown today, 25 September 2006, and objection being taken, I consider it is not proper to have Dr White called to give evidence."
39 The reason for the rejection of the evidence is somewhat obscure. There was acceptance that the material was relevant and there was no express finding that the opinion was for some reason inadmissible. The reasons for it being "not proper" to permit the witness to be called for the accused were, first, that no question was put to any witness called by the prosecution and, secondly, that the Crown did not have prior notice of the evidence. However, in relation to the latter point, the Crown did not seek an adjournment, or even discuss the nature of any prejudice caused by Dr White's proposed evidence. Nor was there any consideration, if it had been thought necessary to put Dr White's opinion to Dr Ross, to have Dr Ross recalled, pursuant to s 46(1)(b) of the Evidence Act.
40 As with Dr Nicholls, an understanding of the reasons for the ruling of the trial judge were not assisted by any articulation of the basis of objection by the prosecution. The closest one comes is the following exchange, which occurred when the matter was first raised after the lunch adjournment on 25 September, after counsel for the accused had indicated that he would obtain copies of the reports and place them before the Court later in the day (Tcpt, p 54 (45)):
"HIS HONOUR: Yes, by all means, you could do that but I can see the Crown has indicated that they would oppose, as I understand it, medical evidence. Is that so?
CROWN PROSECUTOR: Yes, yes we are, your Honour.
HIS HONOUR: And I can simply indicate to you Mr Walsh, I can understand the reason for that and I … would just like to indicate … the reason why I consider that could be particularly inappropriate and dangerous on behalf of the accused as much as anyone else. The evidence before the jury will have to be the evidence of what the accused said."
41 This passage is opaque: it does not articulate clearly any basis of objection. When it came to the reasons for rejecting Dr White, it would appear that his Honour acted upon an underlying assumption that the prosecution should be given prior warning of proposed expert evidence, where it is to be called on behalf of an accused. Whether that happened in respect of Professor Starmer is unclear, but no objection appears to have been taken to his evidence, which concerned the effects of diazepam: Tcpt, 26/09/06, p 33.
42 The Appellant's case is that if the evidence were rejected because it had not been put to Dr Ross, that would have been an error because, to the extent that the principles of fair conduct required the prosecution be given advance notice of aspects of the accused's case, that principle needed to be applied with caution "when considering the conduct of the defence at criminal trial": see MWJ v The Queen (2005) 80 ALJR 329 at [18] (Gleeson CJ and Heydon J) and at [38] (Gummow, Kirby and Callinan JJ). (Reference was also made to the decisions of this Court in R v Liristis [2004] NSWCCA 287, (2004) 146 A Crim R 547 at [73]-[79] (Kirby J, Studdert and Hislop JJ agreeing), referring to the comments of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 688 and 689; and Rend v The Queen [2006] NSWCCA 41, (2006) 160 A Crim R 178 at [79] (James J, Buddin and Hall JJ agreeing).)
43 However, it is not necessary to consider the operation of these principles to deal with this case. If the prosecution needed to obtain instructions before cross-examining Dr White, it is difficult to imagine that that could not have been done overnight. Again, if an adjournment had been required, it was not sought. Nor was this a matter in which there was any need for an expert to examine or confer with any other person. Indeed, a more plausible basis for objection to her evidence was that it probably would not have advanced the sum total of the jury's knowledge of such matters. With the possible exception of the last sentence, it was very much a matter of commonsense. Indeed, the underlying premise of the Appellant's explanation as to the use of the condom was that the complainant herself had been able to work out how to use a semen filled condom to suggest vaginal intercourse. There is no reason to suppose that members of the jury would have acted otherwise than on the basis that such conduct might have the effects described.
44 The evidence being relevant and marginally useful, there was no sound reason articulated for rejecting it. If leave to appeal is required, the error not being one of law alone, leave should be granted: see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318.
Operation of proviso
45 Given that the Appellant has established error in the rejection of the two medical witnesses proposed to be called for the defence, it is necessary to consider whether the appeal should nevertheless be dismissed because no substantial miscarriage of justice has actually occurred.
46 Each element of the evidence may be said to add a degree of plausibility to the defence case and, at least in relation to Dr Nicholls, a degree of implausibility to the evidence of the complainant. It is convenient to deal first with the evidence of Dr White.
47 The argument put by the Appellant was that Dr White's evidence provided an answer to the rhetorical question posed by the prosecutor in addressing the jury (Tcpt, 26/09/06, p 6). Having noted that the high vaginal swab indicated the presence of the accused's semen, the prosecutor continued:
"Without being ridiculous about it, how, how did it get there? How did it get there? Well let me tell you this, and it is a matter for you. It did not get there the way Dr Alramadan described there, that is a sexual activity he says he had with [the complainant].
Let me just remind you of something. It was put to [the complainant], right at the end of her cross-examination, that she inserted some of the semen in her vagina herself. Mr Walsh put that to her. Do you remember that question? Of course she said 'No'."
48 In submissions, counsel for the Appellant put the first paragraph of this passage to the Court, without the second. Taken in isolation, the first paragraph may suggest that there was some physical difficulty or even impossibility in the swab of DNA in the high vagina, otherwise than through full intercourse. However, read in context, it bore no such inference: rather it was an attack highlighting the implausibility of the defence case.
49 So far as the last sentence of the evidence proffered from Dr White was concerned, it was never the defence case that semen had been deposited at the opening of the vagina, or the lower part of the vagina, "through normal intercourse". At its highest, the evidence of the Appellant was that the complainant tried, and may have succeeded in placing his penis in her vagina, whilst he was on the telephone, after he had ejaculated into a condom and she had removed the condom: Tcpt, 21/09/06, p 54. Evidence was not tendered as to the effect of that conduct. However, after the completion of the accused's evidence, one would not expect that the final sentence of Dr White's report would have been admitted, it not being based on the Appellant's evidence which was by then complete. To think that the jury might have taken a different view as to the respective stories of the Appellant and the complainant if they had had expert evidence that semen could be extracted from a used condom and be placed in the high vagina, defies commonsense. The rejection of the evidence actually proffered could not have affected the outcome of the case.
50 There remains the evidence of Dr Nicholls. Although the evidence of the degree of functional impairment caused by the Appellant's disabilities was a matter which could properly be addressed by an orthopaedic surgeon, the degree of impairment was not to be considered in general terms, as it might be in a case involving assessment of lost earning capacity, but in the precise circumstances of the events which were said to have occurred in the surgery on the day in question. It is clear that the trial was run on the basis, accepted by the prosecution, that the Appellant did suffer from a significant disability which no doubt made it difficult for him to get onto the examination table in the way described by the complainant. To the extent that Dr Nicholls described and identified particular injuries, these were not in doubt. The accused was not cross-examined to suggest that he did not have such injuries and indeed the prosecution joined in his demonstration of his disabilities to the jury. Whilst Dr Nicholls expressed the view that it is "very difficult" for the Appellant to "climb stairs", the jury apparently saw him take steps in and out of the witness box and across the Court. Dr Nicholls expressed himself in the same terms in relation to getting onto an examination couch, namely "that it would be very difficult". The reason he gave was the need for assistance "in getting the left leg" onto the couch. However, thereafter, Dr Nicholls' opinions were based upon factual supposition as to the circumstances and physical state of the complainant which were not consistent with her evidence and which therefore left Dr Nicholls' evidence as of such diminished weight as to be of no significance in its most important respect.
51 Again, had Dr Nicholls been called, parts of the written report would undoubtedly have been rejected and it is likely that his oral testimony would have been based on different premises. Nevertheless, such evidence was not proffered.
52 The Appellant faced other serious difficulties in relation to his own credibility. These can be adverted to briefly. First, when interviewed by the police two days after the incident, he said that he had already given back the complainant's licence, denied that he had contacted her to tell her to recover it from the surgery and denied having seen the complainant at all on the day in question. He also denied having sexual intercourse with her. Given the possible consequences for his professional registration, even if the activities had been as he suggested in evidence and not as the complainant averred, he might have been able to explain the false story told to police. However, in his evidence, he insisted that the story was "incorrect" and did not accept that he had lied.
53 Two days after being interviewed by police, he took the initiative and contacted the Medical Board to explain the situation, in case a complaint was made. In a conversation with a legal officer attached to the Board, Margaret Harvey, he said that he had seen the patient on the day in question and that a bag containing his soiled underwear had been taken from near the examination table in his surgery. He explained that there was "semen on my clothes as I had ejaculated". On the Board's officer expressing surprise, the Appellant stated that "the patient must have taken the bag" and suggested that she did so "maybe to put in her vagina".
54 In cross-examination, he denied much of the conversation with the Board's officer, Ms Harvey.
55 The Appellant was also cross-examined about his claim to have had the complainant masturbate him into a condom, which then disappeared. No other condoms were found by the police in his surgery when it was searched two days later.
56 If the jury accepted the evidence of Ms Harvey, it would have demonstrated consciousness that his semen might have been found in the complainant's vagina. There was, however, no suggestion of use of a condom.
57 As with most criminal appeals, there is an inevitable difficulty in assessing the evidence without hearing the witnesses. That is particularly so in a case where a complainant gives evidence, which is contradicted by the accused. However, the Court is entitled to take into account the fact of the jury's verdict. Once it is accepted that the two pieces of rejected evidence could not have had a significant effect on the assessment of credibility, and in the absence of any other challenge to the verdict, it is open to the Court to conclude that there was no substantial miscarriage of justice. Although it would not be possible to find the accused guilty beyond reasonable doubt upon a mere reading of the transcript, there is ample material in the evidence to support the jury's conclusion.
58 Were it otherwise, it would be necessary to order a retrial in any case in which an irregularity had been identified and in which the case turned in any material respect upon an assessment of credibility. However, as the Court explained in Weiss, 224 CLR 300 at [43], "the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict". Their Honours continued:
"The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial."