Denton v R

A second trial

1. In April 2019 the applicant was arraigned in the District Court before Sweeney DCJ on an indictment containing the counts on which the jury had failed to reach a verdict. He again entered pleas of not guilty to all counts and a second trial proceeded.
2. The Crown again proposed to rely on the evidence of Dr Lee. Counsel objected and, after having heard argument, Sweeney DCJ excluded the evidence: R v Thomas Denton, (District Court (NSW), 3 April 2019 unrep). Her Honour considered that Dr Lee's training and experience as a general practitioner did not qualify him, as required by s 79 of the Evidence Act, to express the opinions that he did, and that he did not have the necessary "specialised knowledge about the subject on which he expressed the opinion." The Crown did not challenge that ruling.
3. It may be recalled that in the first trial Dr Lee had been shown the drawings made by the complainant, and had stated the view that the second drawing depicted the frenulum, that is, the part of the penis that he considered to be "moderately unusual" by reason of its width, length and thickness, although he did not consider that to be an abnormality.
4. On the fourth day of the second trial the Crown Prosecutor tendered two photographs of the applicant's penis. It is not clear, but these are likely to have been photographs taken by the police officer during Dr Lee's examination of the applicant, one of which was probably Exhibit 18 from the first trial. It is not clear whether what was tendered was Exhibit 18 as marked by Dr Lee, or an unmarked version. If it were the marked version, the marking would have been meaningless to the jury without evidence as to what the marking was intended to do. If it were an unmarked version, it is difficult to see how its admission could have advanced the Crown case.
5. Sweeney DCJ rejected the tender of the photographs. She considered that, in the absence of expert evidence (of which there was none, Dr Lee's evidence having been rejected), to ask the jury to draw inferences from a comparison of the drawings and the photographs would amount to inviting speculation.
6. Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Crown appealed to this Court against that ruling. The appeal was dismissed: R v Denton [2019] NSWCCA 81. The three members of the Court agreed that the evidence was inadmissible, but expressed differing views for that conclusion. Hoeben CJ at CL considered that the photographs were not relevant, and that, in any event, their probative value was so low as to warrant their rejection under s 137 of the Evidence Act.
7. Hamill J accepted that the evidence was, within s 55 of the Evidence Act, relevant, but considered that, in the absence of evidence of any abnormality or distinguishing feature of the applicant's penis, the probative value of the photographs was limited. He also considered that there was a danger that the evidence might be unfairly prejudicial, such as to warrant its exclusion under s 137 of the Evidence Act. R A Hulme J considered that either a conclusion that the evidence lacked relevance, or that its probative value was outweighed by the danger of unfair prejudice, was open and that the ruling excluding the evidence was correct.
8. The second trial proceeded. On behalf of the applicant a consultant urologist, Dr Robert Wines, was called. His expertise, and therefore his capacity to provide opinion evidence, was not challenged.
9. Dr Wines said that the applicant's genitalia were normal and the "fraenum" (which appears to be an alternative word for "frenulum") was "just within the normal variation of the fraenum in an uncircumcised penis". Dr Wines was also shown the two drawings made by the complainant. He considered that the second (Exhibit 3 in the first trial) represented a circumcised penis. (The applicant's penis was uncircumcised.) Dr Wines thought that the drawing did not resemble the applicant's penis and that the fraenum as depicted was "grossly enlarged in size, it's a lot thicker" than that of the applicant. He said that, while all uncircumcised men have fraenums, the fraenum is usually removed in circumcision.
10. The applicant again gave evidence and denied all allegations. The jury returned verdicts of not guilty on all counts.

The appeal

1. With that rather extensive and elaborate background, it is now possible to turn to the proposed grounds of appeal, bearing in mind that the appeal is against the conviction in the first trial.
2. Three grounds of appeal are pleaded, as follows: "(1) The admission of the evidence of Dr Charles Lee has given rise to a miscarriage of justice; (2) The admission of evidence, inviting a comparison between a photograph of the [applicant's] penis and a sketch of the [applicant's] penis by the complainant, has given rise to a miscarriage of justice; (3) The [applicant] seeks leave to rely upon new and/or fresh evidence in the form of the evidence of Dr Wines called in the second trial on behalf of the [applicant]. The [applicant] asserts that, had this evidence been available at the initial trial, he would have been found not guilty."
3. Section 6(1) of the Criminal Appeal Act provides as follows: "The Court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice … "
4. Rule 4 of the Criminal Appeal Rules provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
5. Since the grounds of appeal are based on: (i) the admission of Dr Lee's evidence, to which no objection was taken; (ii) the admission of Exhibit 18 and the invitation to the jury to compare that photograph with the drawings made by the complainant, to which, again, no objection was taken; and (iii) the tender of new or fresh evidence no question of "the wrong decision of any question of law" arises. Nor is it submitted that the conviction is unreasonable or cannot be supported having regard to the evidence. The applicant therefore relied on the proposition that "on any other ground whatsoever there was a miscarriage of justice".
6. The grounds the applicant seeks to advance are that, as Sweeney DCJ held in the second trial, the evidence of Dr Lee was inadmissible and its admission in the first trial therefore gave rise to a miscarriage of justice; and that the invitation extended to the jury to compare the photograph (Exhibit 18) with the complainant's drawings (Exhibits 2 and 3) also gave rise to a miscarriage of justice.
7. No objection to Dr Lee's evidence having been taken at trial, the applicant requires leave under Rule 4 to advance Ground 1. The Crown has submitted that Rule 4 also applies to Ground 2, since the invitation extended to the jury to make the comparison was based on evidence that was admitted without objection. So much is correct, but it is difficult to see how a ground of appeal that complains of a submission made by the Crown Prosecutor in final address fits within the language of Rule 4. True it is that a request could have been made for a direction that the jury disregard the invitation, but the ground is not as to an omission to direct. I am not persuaded that Rule 4 applies to Ground 2, such that leave is required to permit the applicant to advance that ground. It is unnecessary finally to decide that question since, as will appear below, to the extent that it is required, I would grant leave.
8. Ground 3, the tender of new or fresh evidence, raises different issues, to which I will briefly return.

Ground 1

1. Dr Lee's evidence was opinion evidence. It was admitted for the purpose of proving that there was some abnormality of the applicant's penis and therefore to provide support for the complainant's assertion that the sexual encounters she alleged had begun with the applicant's exposure of his penis to her and his request to her to inspect it for abnormality.
2. By s 76 of the Evidence Act 1995 (NSW) opinion evidence is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. An exception to that prohibition is provided by s 79(1), which is in the following terms: "79 Exception: Opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. … "
3. There are two preconditions to the admissibility of opinion evidence as provided by s 79: (i) that the witness has "specialised knowledge based on [his or her] training, study or experience" and (ii) that the opinion expressed is "wholly or substantially based on that knowledge": Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [23].
4. It is obvious that the training, study or experience, and the knowledge based thereon, must relate to the subject matter on which the evidence of the opinion is sought to be admitted. That calls for identification of the fact the existence of which is sought to be proved by the evidence.
5. In this case, that fact was the existence or otherwise of an "abnormality" on the applicant's penis. A physical abnormality may mean many things. "Abnormality" is defined in the Macquarie Dictionary to mean: "1. an abnormal thing, happening, or feature. 2. deviation from the standard, rule, or type; irregularity." "Abnormal" is defined to mean: "not conforming to rule; deviating from the type or standard."
6. A dictionary definition is not to be accorded the status of a legislative provision. It is not to be assumed that, in referring to an abnormality on his penis the applicant had in mind dictionary definition. The dictionary definition provides a useful starting point in the consideration of how the investigation of an abnormality in or on the applicant's penis is to be approached. "Deviation from the standard", I think, adequately captures what Dr Lee was called upon to assess, and, probably, what the applicant had in mind.
7. That immediately directs attention to what, with respect to the subject matter, is the standard from which there is (or may be) a deviation. In this case the "standard" in question is that appertaining to the characteristics of a penis without abnormality. Dr Lee expressly disavowed any "special knowledge" with respect to anatomy or urology, which may be taken to be the relevant medical areas of speciality. As Sweeney DCJ held, his qualifications as a general practitioner did not meet the criteria that would permit admission of his opinion evidence under s 79 with respect to the standard dimensions or characteristics of normal penises or deviation therefrom. Dr Lee therefore lacked the necessary specialised knowledge based on training, study or experience that would have qualified him to give that evidence. His evidence was not admissible.
8. This conclusion is in accord with the decision of the High Court in Honeysett. In that case opinion evidence of a professor of anatomy, Professor Henneberg, was admitted to aid in the proof of the identity of an alleged offender. This was sought to be done by having Professor Henneberg examine video footage of the actual (known) offender at the scene of the crime, and video footage of the person accused of that crime in a prison cell, and conducting an anatomical comparison of the two. In fact, although he had been asked to conduct an anatomical comparison, and did so, Professor Henneberg did not give evidence of identification based on that comparison. What he did was to describe certain discernible features of the bodily characteristics of the two individuals depicted in the two videos, pointing out that he found no observable difference between the two. The inference sought to be conveyed was clear.
9. The High Court held that the opinions expressed were not based on the Professor's anatomical expertise, but were based on his subjective impression of what he saw when he examined the images on the video footages (at [43]). In effect, this was an exercise that could have been undertaken by the jury. Professor Henneberg's evidence was not based wholly or substantially on specialised knowledge based on his training, study or experience.
10. The consequence of having this evidence given through a purported expert witness was that it "gave the unwarranted appearance of science to the prosecution case" that the offender and the person accused shared a number of physical characteristics (at [45]).
11. Any possibility that Dr Lee's evidence was based wholly or substantially on his specialised knowledge (as a general practitioner) was put to rest by his own acknowledgment, in his report, that he had no specialist qualifications in anatomy or urology. His observations of the applicant's penis were, like Professor Henneberg's observations of the physical characteristics of the men depicted in the two videos, based on his subjective impression of what he saw, and his recollections of the penises of men he had examined in the course of his general practice of medicine. There was nothing scientific about his evidence, but, as in Honeysett, it gave the unwarranted appearance of science to the prosecution case. Dr Lee's evidence did not amount to an opinion based on specialised knowledge based on his training, study or experience.
12. Accordingly, the evidence was not admissible under s 79 of the Evidence Act.
13. It should not be assumed that, in speaking of "something abnormal" on his penis, the applicant necessarily had in mind a condition or feature that might, on the application of recognised medical standards, be categorised as an abnormality. It is far more likely that he had in mind something that he considered deviated from the average, or usual. That is how Dr Lee, after his reconsideration, approached the task committed to him. The difficulty with that approach is that it did not involve the application of his expertise - that is, his specialised knowledge based on his training, study or experience. It involved only subjective observation.
14. As I have suggested, this was not a case that hinged on whether there was, in medical terms, an abnormality of the applicant's penis. If that were the issue, it is something that would clearly call for an opinion based on appropriate expertise. The real question, as properly identified by Dr Lee, was whether there was any feature of the applicant's penis that could reasonably have given rise to an apprehension in him of abnormality. That is not something to be determined on the basis of the training, study or experience of a general practitioner, and Dr Lee made no bones about disclosing his lack of expertise to express an opinion on that subject.
15. It is not always easy - it may be impossible - to separate observations that may be made by a reasonably astute and informed observer from those based on specialised training, study and experience: Velevski v The Queen [2002] HCA 4 at [158]; (2002) 76 ALJR 402 at 427.
16. Here, Dr Lee was asked, because of what was perceived to be his expertise, to express an opinion that was beyond his expertise. But it also was not a question that (as was the case in Honeysett) could realistically have been left to the jury's own observations. It could scarcely be contemplated that the jury be asked to undertake that exercise.
17. In Velevski, Gummow and Callinan JJ accepted that, in some cases, the observations of an expert will go beyond that expert's expertise and incorporate observations of "everyday affairs and events, and departures from them" (at [158]). Their Honours said: "It is the added ingredient of specialised knowledge to the expert's body of general knowledge that equips the expert to give his or her opinion".
18. In the circumstances, it would have been entirely reasonable for an expert qualified, as was Dr Wines, to point to features of the applicant's penis to which the jury's attention might be drawn. Dr Lee was not that expert. Dr Lee's evidence should not have been admitted.
19. Two questions remain: (i) did the admission of Dr Lee's evidence cause a miscarriage of justice? (ii) ought the applicant be given leave under r 4 to raise the ground?
20. It is apparent that, notwithstanding that neither the Crown Prosecutor nor the trial judge placed any emphasis on Dr Lee's evidence, the jury saw it as of some significance, prompting the note asking what Dr Lee's instructions were. It cannot be thought that Dr Lee's evidence did not play a significant part in their decision to convict the applicant on count 1. That conclusion is reinforced when it is remembered that this was the only count that resulted in conviction. It is inescapable, in my opinion, that the admission of Dr Lee's evidence did result in a miscarriage of justice. That also answers the second question. Leave under r 4 should be granted.
21. That conclusion means that I can deal quickly with the remaining two grounds.

Ground 2

1. By ground 2 the applicant complained of the admission of the photograph Exhibit 18, and the invitation to the jury to compare it with the drawings made by the complainant and conclude that they depict the same locations.
2. The first thing to observe is that Exhibit 18 is all but meaningless except for the mark placed upon it by Dr Lee, indicating the location of the frenulum. The point of the postulated comparison was that Dr Lee's mark locating the frenulum coincided with the complainant's marks indicating the "abnormal spot" or "abnormal skin flap". When, in accordance with the conclusion expressed above about the admissibility of Dr Lee's evidence, his marking is disregarded, there is nothing on Exhibit 18 to compare with the complainant's two drawings. That would be sufficient to justify upholding this ground of appeal.
3. An equally strong reason is the decision of this Court on the appeal, pursuant to s 5F(3A) of the Criminal Appeal Act, against the rejection of the photograph by Sweeney DCJ. The conclusion of the Court was that the photograph was inadmissible. This Court should not depart from that ruling. Ground 2 should be upheld. The invitation to the jury to compare the photograph with the complainant's drawings caused a miscarriage of justice.

Ground 3: Admission of Dr Wines' evidence.

1. The applicant seeks to rely on evidence given by Dr Wines in the second trial as indicative that, had that evidence been available, he would not have been convicted. That may or may not be so, but the applicant has not established that the evidence of Dr Wines was not reasonably available at trial.
2. I do not find it necessary to determine this ground of appeal. My conclusions in relation to grounds 1 and ground 2 are sufficient to warrant allowing the appeal.
3. In my opinion leave to appeal should be granted, the appeal allowed, and the conviction set aside.
4. The orders I propose are:
5. The time in which to appeal is extended to 2 December 2019;
6. Leave is granted to appeal against the conviction of 9 July 2018 for the offence of committing an act of indecency;
7. Appeal allowed, conviction set aside;
8. A verdict of acquittal is entered.
9. BELLEW J: I agree with Simpson AJA.
10. WILSON J: I agree with Simpson AJA.

Amendments 16 February 2021 - Par [5] has been amended to remove any potential identification of the complainant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2021