R v El-Kheir - [2018] NSWDC 245 - NSWDC 2018 case summary — Zoe

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R v El-Kheir

[2018] NSWDC 245

District Court of NSW|2018-07-27

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At a glance

Source facts

Court

District Court of NSW

Decision date

2018-07-27

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

Table of Contents Introduction - paragraph 1 The evidence concerning each count - paragraph 9 Counts 1 to 3 - J Y - paragraph 15 Count 4 - L E - paragraph 30 Count 5 - C D - paragraph 41 Count 6 - C S - paragraph 52 Count 7 - E M - paragraph 72 Count 8 - R G - paragraph 86 General principles of law - paragraph 110 Right to Silence - paragraph 114 Why would the complainant lie? - paragraph 116 Separate Consideration - paragraph 120 Tendency Evidence - paragraph 125 Delay - paragraph 131 Demeanour - paragraph 135 Question 1 - The physical acts alleged - paragraph 136 Count 8 - paragraph 145 The uncharged acts of 29 April - paragraph 150 Count 4 - Ms E - paragraph 156 The tendency is established - paragraph 161 Count 1 - Ms Y - paragraph 168 Count 5 - C D - paragraph 176 Count 6 - C S - paragraph 180 Count 7 - E M - paragraph 191 Conclusion regarding question 1 - paragraph 195 Question 2 - Consent - paragraph 199 Question 3 - Under the authority of the accused - paragraph 212 Questions 4 and 5 - Voluntariness - paragraph 216 The difference between sane and insane automatism - paragraph 225 Hypoglycaemia and hyperglycaemia - different outcomes - paragraph 249 The accused is a diabetic and also bipolar - paragraph 257 Strange behaviour by the accused - paragraph 263 Expert evidence on voluntariness - paragraph 273 Conclusion on Voluntariness - paragraph 284 Question 6 - Mental Illness - paragraph 290 Bipolar Affective Disorder - paragraph 296 Impulsivity and appreciation of moral wrongfulness - paragraph 300 Dr O'Dea expressed uncertainty - paragraph 316 The Evidence regarding the accused's evidence to reason - paragraph 319 Question 7 - The accused's knowledge - paragraph 344 Conclusion and Verdict - paragraph 345 Annexure 1 Question Trail - Sexual Intercourse Counts - paragraph 1 Annexure 2 Question Trail - Indecent Assault Count - paragraph 1

[2]

Introduction

On 30 July 2018 the accused was arraigned on an indictment containing 8 counts. He pleaded not guilty to all counts. I had been advised that the accused had made an election to have his trial heard by way of judge alone and that this had been consented to by the prosecutor. I satisfied myself that the accused had received appropriate advice from his solicitor and barrister about the election he had made. I therefore commenced to hear the trial without a jury.
This was not the first time that the accused faced trial on these allegations. In 2016 the accused was arraigned on an indictment containing 12 counts, including the eight which presently concern me. He was found guilty on four counts but the jury could not agree on the remainder. He is currently serving his sentence for the offences of which he was convicted.
This had the consequence that much of the evidence in the trial before me consisted of recordings of evidence given in the earlier trial when all but one of the complainants gave evidence from a remote witness room. Those two aspects of the way the evidence was presented are standard procedure in cases of this kind and I have given the evidence neither greater nor lesser weight because it was given in that way. I have certainly drawn no inference adverse to the accused because the evidence was given in the way I have described.
In addition to me being shown recordings of evidence given in the earlier trial, extensive use was made of audio-visual links to allow witnesses to give evidence from locations convenient to them. Indeed it was not until day 14 of the trial that I saw my first witness in the courtroom itself. The accused too participated by way of videolink. He is a diabetic and gladly accepted my suggestion that he could avoid being transported in from custody each day with the risk that he would be denied food for long periods.
The offences were alleged to have occurred in 2012, 2013 and 2014 when the accused was a medical practitioner practising in the Tri-Star Medical Clinic in Coffs Harbour. In each case the Crown alleges that the accused committed the offences on his female patients during the course of a medical consultation. Seven of the eight counts are allegations that the accused had sexual intercourse without consent while the complainant was under his authority, each allegation relating to the accused's alleged digital penetration of the complainants. The remaining count is an allegation of indecent assault whilst the complainant was under his authority.
Although he was a doctor and the complainants were his patients, the case for the accused does not suggest that there was in fact any proper medical purpose for what he is alleged to have done, (see in the case of the sexual intercourse without consent counts section 61H(a) Crimes Act). He admits that if he did what he was alleged to have done then there was no proper medical purpose for his actions.
Generally, his case involved, at least at the start of the trial, a cascading series of propositions:

First, he does not remember performing any of the acts alleged by the Crown,
Secondly, if he did perform those acts then he was acting involuntarily, in a state of automatism,
Thirdly that if he was acting voluntarily he was nevertheless mentally ill,
And fourthly, if he was not mentally ill he may have thought, albeit wrongly, that there was a proper medical purpose for what he did.

I must decide whether the Crown has proved the elements of the offences against the accused, including that his actions were voluntary. If that is the case then I turn my attention to the question of whether the accused was mentally ill at the time. The accused would be mentally ill if the accused was labouring under a defect of reason caused by a disease of the mind as a result of which the accused either did not know the nature and quality of his act (the first limb); or if the accused did know the nature and quality of the act, he was unable to reason with a moderate degree of sense and composure about whether his conduct was morally wrong (the second limb). The accused relies on only the second limb in this trial.

[3]

The evidence concerning each count

I will briefly set out the evidence relating to each count on the indictment. What follows is largely based on the evidence in the Crown case, although mention will also be made of evidence given by the accused at both of his trials, his evidence at the first trial being tendered in the second trial after which he gave further oral evidence.
At his first trial he gave evidence that he remembered what he did in each of the relevant consultations, which enabled him to deny the sexual acts alleged by the complainants.
However in evidence before me he said he did not have any memory of the consultations and was basing his earlier denials on what the complainants said, his notes from the relevant consultations and his usual practice. Having spoken to specialists in mental health and having reflected on matters he now accepts that he may have done what the complainants said he did. He believes that he did not do the physical acts he is alleged to have done, saying "I did not do these disgusting things", but he concedes now that he may have performed the physical acts alleged against him without being aware of them.
He denied a suggestion put to him by the Crown that this change of attitude was because he thought it would help him avoid conviction in this present trial.
That he now says his evidence as to what happened in the consultations was not based on any memory he had affects, of course, the weight to be given to his version of events advanced by him at his first trial and also affects his credibility more generally.
Although the accused's credibility was not a significant issue in this trial, the fact remains that it is difficult to reconcile the evidence he gave at his first trial with the evidence he gave before me. Either he invented his evidence in the first trial or is lying in the current trial about having no memory of the consultations at the time he gave evidence in the first trial. When he was given the chance to explain this apparent contradiction he said that his evidence in the first trial was not true, but that he was not a liar.

[4]

Counts 1 to 3 - J Y

Ms J Y, who was known as J R at the time, went to see the accused on two occasions in September 2012. The first was on Friday 21 September and the second occasion was two days later on Sunday 23 September.
From time to time she had experienced painful cysts. On Friday 21 September 2012 she said that she consulted the accused about cysts in the area of her body at the bottom of her bra.
By the Sunday she was experiencing a very painful cyst which had appeared on the outside of her labia majora. Although she would have preferred to have gone to a women's health clinic they were not open on a Sunday and so she returned to the Tri-Star medical practice and again saw the accused. He asked her to hop on to the examination couch so that he could examine her, telling her to take off her trousers and underpants. The accused said that he could lance the cyst and although Ms Y could not see precisely what he was doing she believed that he used a small scalpel to cut the cyst and then used his fingers to squeeze out what was inside.
Things started to go awry according to Ms Y when the accused got some Betadine, put it on his finger and then rubbed his finger from Ms Y's clitoris down to her vagina, penetrating it, before he removed his finger, penetrated her anal passage and then again penetrated her vagina.
Not unnaturally Ms Y said that she thought "this is not right". Her evidence was that as the accused was doing these things he kept saying "you must keep this area clean". She described him as just rambling "this area must be kept clean at all times".
Eventually Ms Y said "stop". The accused did so and told her that she could get dressed.
Ms Y said that she was in shock, that she walked to her car and sat there for about 10 to 15 minutes before driving over to see her friend S M. She complained to her about what the doctor had done, although she may not have gone into specific detail.
Ms M's evidence was that her friend turned up at her home one day looking distraught and upset. She told her that she had just come from the doctor who had done something to her which she did not like. Ms Y said that he fixed the problem that she had seen him about and then applied ointment to it, but that the doctor touched her in other private areas as well as where the problem had been. Ms M made it clear that Ms Y had complained of the accused rubbing ointment on her vagina and anal area.
A couple of weeks later Ms Y went to see a different doctor at a different practice. Her evidence was that she told this doctor, Dr Oeding, what the accused had done. The doctor gave her some pamphlets and told her it was up to her as to whether she wished to take the matter further.
Dr Oeding gave evidence that the visit was on 8 October 2012. At that time Ms Y described an intra-vaginal examination and mentioned a per rectal examination as having been performed upon her by the accused. The doctors notes included "PR?" the question mark indicating that she wasn't certain whether there was actual penetration of her anus. Dr Oeding said that she did not want to ask too many questions in order not to upset Ms Y who was quite distressed. For that reason she didn't ask if he really introduced his finger into her anus.
What prompted Ms Y to eventually go to the police was a story in the local newspaper about the accused having been charged in relation to another patient. She thought that what happened to her could be used as verification of the charge that had already been brought against the accused so she rang the police and asked to speak to the officer in charge of the case, later making a statement.
At his first trial the accused gave evidence that the complainant presented in a great deal of distress with a painful abscess in her groin area which caused her difficulty walking. The accused asked the complainant to lie on the bed to allow him to have a better look. The accused asked the complainant to remove her dress and underwear to allow him to examine the abscess which was very large and near the labia. The accused inspected the abscess and recommended that she go to a hospital emergency room or to go to the Woman's Health to have the abscess lanced. The complainant was in extreme distress and didn't want to wait. The accused said that "he could lance the abscess" but not immediately as the complainant needed to commence a course of antibiotics first. The antibiotics would not resolve the infection, the abscess needed to be drained.
The complainant returned on 23 September when the accused commenced the procedure by explaining what he was going to drain the pus from the abscess. The accused asked the complainant to get on the bed after which he drew the curtain and covered her lower legs with a bed sheet and asked her to undress herself. The accused commenced by cleaning the area with betadine. He applied a local anaesthetic and waited until the complainant confirmed the area was numb before he made an incision with a scalpel. He pressed down on the area using one pair of forceps and used a second pair of forceps with gauze to absorb the drained pus. The accused says: he never used an ungloved finger to clean the area; he did not put the gauze in her anus or her vagina nor on her clitoris; he did not go back and forth from the anus to the clitoris with either gauze or his finger.
The procedure took 7 minutes and he did not recall the complainant asking "is that necessary" or "stop".
The accused now says in evidence that although he has no memory of having done so, having reflected on matters since being convicted and having seen specialists in mental health, he accepts that he may have done what Ms Y said he did.

[5]

Count 4 - L E

Ms E, who was 17 years of age at the time, went with her mother to the Tri-Star medical centre one Sunday. She was experiencing stomach pains, cramping, and diarrhoea. She saw the accused in his room. Ms E's mother was there as well. After telling the accused of the symptoms she was experiencing the accused indicated that he wanted to examine her stomach. Accordingly Ms E got onto the examination bed and lifted up her shirt so that her stomach was exposed. She was wearing long pants on the lower half of her body and denied a suggestion put to her in cross examination in the first trial (when the accused said he remembered the consultation) that they were hipster style jeans.
After the accused touched her stomach for some time he moved his hand under her pants and underwear and put his fingers on her clitoris for about five seconds. The accused was not wearing gloves and neither the accused nor Ms E had undone her pants or pulled them down at all.
The complainant remembers her mother asking the accused what he was doing and his reply that he was checking for a urinary tract infection.
After leaving the medical centre Ms E said that she contacted the Health Care Complaints Commission but was apparently told that a written complaint would be required. Ms E was in year 11 at school at the time and had other issues in her life, so she did not make any formal complaint about the accused's conduct until sometime later.
She came to be in contact with the police after her mother told her that a Coffs Harbour doctor had been charged with sexually assaulting female patients. Ms E thought that those charges might be related to what happened to her and so she went to the police and made a formal statement.
The complainant's mother's evidence closely matched that of her daughter about what occurred in the accused's room. She was a nurse herself and described how she was adjacent to the doctor as he examined her daughter, standing somewhere near her daughter's shoulder. She saw the doctor palpate the complainant's abdomen, pushing down with two hands, when all of a sudden he put his hand down under her pants down to her vulval area. She described how the accused's hand disappeared under the complainant's pants.
She said sternly "what are you doing?" at which he pulled his hand out and told her that he was checking for a urinary tract infection.
Ms E's mother's evidence was that it was she who contacted the Health Care Complaints Commission but they told her that they couldn't take her complaint because she wasn't the patient. When she told her daughter about that phone call her response was that she didn't feel well enough to make a complaint. At that time the complainant had some significant medical issues with her lungs.
Ms E's mother gave evidence that when she later read an article in the local newspaper which said that a doctor had been arrested for sexual assault she asked her daughter whether she wanted to go to police because it was obvious it wasn't only her that it happened to.
The accused's evidence in the first trial as to what happened during Ms E's appointment with him was that she had presented with stomach pains and cramping although he did not agree that she complained of diarrhoea. He explained that he needed to feel her abdomen to rule out, for example serious problems like appendicitis. He also palpated her in her supra-pubic area but denied ever moving his hands or fingers inside her pants or underpants. He did not recall Ms E's mother being present in the examination room. He agreed his patient records didn't record that he had physically examined Ms E but they should have. He attributed that to his lack of time.
As I have mentioned before, the accused now says that when he gave that evidence he had no memory of the consultation with Ms E. He believes he did not do what she and her mother allege he did but accepts that he might have done, and if he did, it was because of his mental state.

[6]

Count 5 - C D

Ms D gave evidence that she was a reasonably regular patient of the accused and had been seeing him for some six months before her visit on 9 January 2013.
She visited the accused for cystitis. They had a discussion about this and at the doctor's request Ms D removed a urine specimen bottle from a drawer behind her. When she was asked if there was anything else she wished to discuss she complained to the accused about pains in her feet as well as lower back problems. He then asked her to hop onto the examination bed, something which had happened before. However what occurred on the examination bed had not happened before. What she said happened has led to count five on the indictment.
At one stage Ms D, who was wearing a dress that day, was lying on her stomach. Her evidence was that the accused moved her underpants so that they were in between her buttocks. Ms was very uncomfortable about this. After this they both returned to the desk area of the room, the doctor sitting in his chair and Ms D sitting in one of the chairs opposite.
The accused then told her to get back on the examination bed. She was on her stomach again when the doctor put his hand partly into her underwear and touched her upper pelvic area including her pubic hair. He then lifted her up from the bed. Her evidence was that he then put her back down on the bed before pulling her pants down and putting his finger in her anus. She said that he was not wearing any gloves at the time and did not use any lubricant. While his finger was in her anus he said "does that hurt?" in an angry tone of voice. His finger remained in her anus for four or five seconds.
Ms D's evidence was that she felt sick at what the doctor did to her. After she left the surgery she made immediate complaint to her friend B and then to police. Her evidence was that she did not want any action taken, for reasons she explained, but just wanted her complaint to be recorded.
It was not until later that she made a formal statement to police. She too had learnt that the accused had been charged with sexually assaulting someone else and felt guilty for not proceeding with her complaint on 9 January 2013.
Her friend BM gave evidence in the previous trial and the transcript of his evidence became an exhibit in the present trial. He confirmed her evidence that immediate complaint was made although he said that such complaint was limited to Ms D telling him that "he touched me inappropriately".
The police officer to whom Ms D spoke on 9 February 2013 also gave evidence. Her notes indicated that Ms D told her that she had been on her back, not her stomach, when the Doctor penetrated her anus.
Ms D received a telephone call from the officer in charge, Detective Coffey sometime later. It was then that she learnt that there had been another allegation made against the accused. Ms D expressed feeling responsible for another woman being sexually assaulted by the accused because she did not want to go take her initial complaint of 9 February 2013 any further.
At the first trial the accused gave quite detailed evidence, assisted by his records, as to his treatment of Ms D. She was, so he said, reluctant to take his medical advice and undertake the treatment he recommended. Eventually he suggested that she go and see another doctor. As far as 9 January 2013 is concerned he denied examining her in any way on that day.
At this present trial the evidence of the accused was as I have noted above - although he has no memory of having done so and believes that he didn't, he accepts that he may have done what Ms D said he did.

[7]

Count 6 - C S

Ms S had been a patient at TriStar for some time before her visit in February 2013. She had been seeing the accused in relation to issues concerning her then relationship,p as well as back pain, her tailbone having been broken when she was about 12 years of age.
In the consultation in February 2013 Ms S spoke to the accused about the medication she was on because she was concerned that it made her sleepy. She was then asked to get onto the examination table which she did. She was wearing a skirt and underpants.
At one stage she was lying on her stomach and the accused asked her to move her skirt down, which she did so that part of her buttocks were exposed. The accused then pressed on her back a couple of times before he pulled her skirt and underwear down to her knees. Not unnaturally her evidence was that this this shocked her. The accused then pushed on her back with his palm before, without any warning at all, he put his thumb into her vagina. He was not wearing any gloves.
In response to this assault upon her Ms S gave evidence that she jumped up and said to the accused "you're not going to find anything there". She readjusted her clothing. Before leaving the doctor's room he gave her a bracelet and wrote out a prescription for her. The bracelet was later tendered as an exhibit in the trial.
On the way out of the practice she spoke to a receptionist telling her that she was sure she had just been sexually assaulted in there. She then rang her friend RC. She discovered that she was having lunch with another friend of hers, DB, at the Coffs Hotel. She drove to the hotel and made immediate complaint to her two friends about what had happened. She said that she was shaking and confused as she did so. Her evidence was that it was that very day that she, a previous non-drinker, started to drink alcohol.
She made further complaint to other people afterwards: her sister M; her then partner; her mother; her employment adviser and a police officer who was speaking to her on an unrelated matter.
To some such as M and her friends at the lunch she said that she had complained of penetration, but to others such as the police officer and her employment adviser she did not go into details and just complained of being assaulted (although she initially said that she told her employment adviser that she had been penetrated).
Shortly after the visit to the doctor's she went to a police station and reported what had happened, showing the police officer to whom she spoke the bracelet that she had been given by the accused. She was surprised when the police officer gave the bracelet back to her. It appears that police took no further action at this stage perhaps due to inactivity on the part of the officer to whom Ms S had spoken (something she suggested), or because Ms S did not want the matter to be taken further (something contemporaneous records and the oral evidence of a police officer, Stephen Vout, suggested).
Ms S gave evidence that she didn't complain to any medical authority because the accused had previously told her that his wife worked for the AMA so she thought there would be no point in complaining. I should interpolate here that when the accused's wife gave evidence it turned out that she worked for a Federal Government Department and not the AMA.
Her allegation was reactivated more than a year later when the police contacted her after the officer in charge, Detective Coffey, read police records concerning her complaint
The two women to whom the complainant first complained gave evidence. Ms RC noted that the complainant was "shaking, crying, a mess and straightaway you could see something was wrong" Ms C gave evidence that the complainant told her that the accused penetrated her vagina with his finger. She also recalled being shown some jewellery, although she remembered two pieces, which the complainant said the accused had given her. She corroborated other aspects of the complainant's evidence too, saying "C was not a drinker and after this she started to drink quite a bit".
The other woman at the lunch, DB, gave evidence also that the complainant was upset, but her recollection was that the relevant event had happened some days before the lunch and that what was complained about was an assault which made her feel uncomfortable because the accused "went too far down". Although Ms B believed what the complainant had said, she continued to see the accused who was her doctor too but not for any medical condition which would have required him to physically examine her.
Another person to whom the complainant complained was, as mentioned above, her sister M. She gave evidence as well. The terms of the complaint as described by her were "she told me that he stuck his finger in her pussy", with the word "pussy" sticking in her memory. The complainant was "distraught" and "crying…very emotional about it", complaint being made on the same day as the appointment with the accused. She too remembered being shown a bracelet by the complainant which she said had been given to her by the accused.
The complainant's evidence as to her complaint to her employment adviser was corroborated by that person, Ms AC, both as to the terms of the complaint - "he was touching her around her vagina" - and the giving of gifts such as bracelets.
Complaint was also made to a police officer. He went to the complainant's home for an unrelated matter and during discussions he suggested to her that she go and see her doctor. To this the complainant replied "that she'd seen her doctor the week before and during that he had put his hand under her underpants and touched her on the vagina". The complainant was very distraught and sobbing when telling him that, burying her face into her hands. That the complainant did not say that she had been penetrated is consistent with the complainant's evidence as to what she told him.
The receptionists on duty at the time Ms S's appointment concluded gave evidence in the trial. They denied having received a complaint from a patient about the accused having sexually assaulted her.
At his first trial the accused gave detailed evidence concerning the consultation in February 2013. Because she complained of back pain the accused asked to feel her back, lumbar spine and coccyx to determine her pain threshold, especially the coccyx. The accused asked the complainant to lie on the bed on her tummy to allow the accused to feel her spine. The complainant uncovered the area and the accused palpated her back using both thumbs, one each side of her spine starting from the very top to the end of her coccyx to check the severity of her pain.
The accused said he did not touch her skirt, he did not touch or pull down her underpants, he did not move below the coccyx and only touched the coccyx for "like a second", he did not put his finger, thumbs or any part of his hand in her vagina.
The complainant dressed herself and sat in the chair opposite the accused's desk and discussed the medications with her and wanted to refer her to a pharmacist. The accused told her to expect a phone call from the receptionist to arrange various appointments for her including a mental health revue and a GP management plan. The accused did not deny giving the complainant a bracelet as his mother had given him lots of souvenirs from Egypt.
As noted above, the accused's evidence in this trial is that he now accepts that he may have done what he was alleged to have done, although he says he has no memory of having done so, or indeed of anything that happened during her visit to him.

[8]

Count 7 - E M

Ms M went to see the accused, who was her regular doctor, on Valentine's Day 2013 because she suspected she had a urinary tract infection. Her now husband K did not come into the consultation room and waited for her, either in the waiting room or in the car outside.
During the consultation Ms M was physically examined by the accused which was different from how she had been treated for urinary tract infections in the past. At the accused's direction she lay on the examination bed on her back and either she or the accused lifted her dress. The accused felt her stomach saying that she felt bloated. The accused then asked her to roll onto her stomach. Miss M felt a bit awkward about this and laughed nervously because she was wearing only a G string. The accused said that they could stop if she wanted to but she said it was OK. The accused then lifted Ms M's bottom up into the air, put his hand underneath her and touched her pubic area on the outside of her underpants.
He then asked her to roll over onto her back and pressed down on her pubic area, this time underneath her underpants, gradually going lower and lower until he got to the top of her genitals around the area of her clitoris. A diagram drawn by Ms M showed more precisely where the accused touched her with his fingers.
The accused gave Ms M no warning that he was going to do what he did, he did not ask for her consent and she did not give any consent. He was not wearing gloves.
Ms M says that she froze while this was happening which is why she let it happen.
She spoke to her husband K in the car on the drive away from the premises about what had happened. She described bursting into tears and telling him that she didn't feel good about what had happened in the doctor's surgery and she was a bit worried about it. Ms M did not tell her husband in any more detail what had happened and made no other complaint. She explained her lack of other complaint by saying that she did not want to put herself through what would happen if she had made a complaint - talking to police, giving evidence in Court, that kind of stuff.
Ms M returned to see the accused on two occasions after the consultation where she said she had been touched on her pubic area. She thought that the first was because she had an asthma attack and an appointment with the accused was the only appointment she could get at short notice. The second was to get another prescription for an asthma puffer. However in cross examination she accepted that she may have seen another doctor at the time she was short of breath, and saw the accused on two other occasions, being unable to say why she saw him as opposed to another doctor.
The accused had given presents to Ms M, although not on Valentine's Day 2013. These included a bracelet, a bookmark and chocolates. The bookmark turned out to be a paper one with a version of the Serenity Prayer printed on it and there was evidence that the accused was in the habit of giving many people chocolates.
Ms M first went to the police after seeing a Facebook post about a sexual assault by a doctor which had happened in Coffs Harbour. She had a significant reaction to seeing this Facebook post because she believed, indeed she said she knew, that it would have been the accused who was involved. She got quite upset by the Facebook post and had what she described as a kind of breakdown leading to her to have to call Lifeline. Two days after the Facebook post she went to the police and made a statement
Her husband also gave evidence. His evidence supported the evidence of Ms M. He said that when she came out of the doctor's office she was visibly upset and that he could see that she had been crying. He asked what was wrong but she didn't want to talk about it at first. It was a couple of days later that she said to him that what the doctor did was not appropriate for what she went in to see the doctor for.
The accused's evidence in his first trial was that on the 14th of February the complainant presented to the doctor with painful urination and blood in her urine. The accused examined her on the examination bed to rule out pain in the kidney and to confirm bladder infection. The accused asked her to remove the upper part of her clothing. The complainant did not remove the clothing but uncovered herself by lifting her shirt up. The accused says he did not remove or touch any of her clothing and he did not use gloves during the examination. While the accused was palpating the complainant he asked her if it hurt. The complainant said nothing during this procedure. The accused then palpated the suprapubic region around the bladder - the complainant said it hurt.
The accused says that: he did not remove any clothing; he did not notice she was wearing a G string; he did not put his hands under the G string; he did not palpate lower than her pubic bone; he did not touch her on or around her vagina; he did not put his hands on her stomach; he did not ask her to roll onto her stomach; he did not ask her during the examination if she was "okay"; he did not say "we can stop if you want"; he did not put his hands between her legs lifting up her pubic bone.
The accused said he was confident in his diagnosis and did not request a urine sample. He prescribed antibiotics for the complainant.
His evidence in the present trial was consistent with what he said about the other allegations against him - he has no memory of having done so and believes that he didn't, but he accepts that he might have assaulted Ms M as she alleged.

[9]

Count 8 - R G

We now come to some of the most important evidence in the case. There was a remarkable feature of the Crown case on count eight, namely that at the very time the offence was allegedly committed, Ms G was wearing a listening device.
But before I refer to the evidence given by Ms RG, I should repeat some matters of history. At the first trial the accused was found guilty of a number of counts relating to Ms G's allegations. Despite that, it may be necessary for me to make my own assessment as to the reliability of those allegations. That is because of the Crown's reliance on tendency evidence, the Crown arguing that I would be satisfied beyond reasonable doubt of Ms G's allegations and that I can therefore use that conclusion in considering whether the Crown has proved beyond reasonable doubt a tendency on the part of the accused to act in the way the Crown alleges.
I am not relieved of the obligation to make my own assessment by the circumstance that a jury has already found the allegations proved. Nor can I use that fact in any way in favour of the Crown. I merely note what happened earlier to explain why some of the allegations made by Ms G do not form the basis of any count on the indictment.
Ms G had been a patient of the accused, seeing him for a variety of medical conditions prior to her visit on 29 April 2014, by coincidence her birthday.
One of the matters which had caused her to see the accused in the past concerned a rash that she had, it being around her underwear line and on her hips. So it was that on 29 April she went back to the accused for him to check the rash, which she sometimes referred to as scarring, to see if it could be treated. At the same visit she also discussed various contraceptive options.
She got up onto the examination bed lying on her back and pulled her pants down about 10 cm or so in order that the accused could examine the rash on her hips. The accused then pulled her pants down even further so that they were down to her knees with nothing covering her genital area. Ms G said that the accused examined the area of the rash before he touched the area of her body where her underpants leg line would have been had she been wearing underpants and then penetrated her vagina, his finger entering only a short distance, perhaps up to his first knuckle.
The accused then asked Ms G to roll onto her stomach before putting his hand between her legs onto her pelvic bone, touching the front of her genitals, and lifting her bottom up. He next pulled her buttocks apart, told her that she had a rash there and put his finger into her anus once or twice, before touching her clitoris. This caused Ms G to, as she described it "freak out" and pull up her pants.
The accused then cradled Ms G and offered her a massage saying "if you ever want a massage you come back and see me". He told her "you are a very beautiful girl, you've lost weight" and touched her across her underwear line and then across her breasts. Before she left the examination room he gave her a prescription for an injection and told her to come back so that it could be injected into her.
It was Ms G's evidence that he gave her no warning that he was going to penetrate her or touch her clitoris. He never asked whether it was okay to do those things and she did not consent to him doing them.
Ms G made a complaint. She called her mother as soon as she left the doctor's surgery. It will be remembered that it was her birthday and so when her mother answered the phone she started to sing "happy birthday" to her. Ms G began to cry in response. I should interpolate here that as Ms Ggave this evidence she then began crying in the remote witness room and she took up the offer of a break. She was clearly upset. I could see nothing feigned about her reaction and interpreted it as being the product of her recalling the emotion she felt during the phone call with her mother.
She told her mother "I think the doctor's done something wrong". Her mother immediately told her to go to the police. According to Ms G, during this conversation she did not tell her mother exactly what the accused did out of embarrassment, although when her mother gave evidence she said that her daughter had specifically complained of her "bum" being penetrated. Importantly also Ms G's mother gave evidence that her daughter told her that the accused said "I can give you a massage, it will make you feel good".
She did what her mother told her to do. She went to the police station and asked for a particular police officer she had met once before (her father was a retired police officer). Upon being told that he was unavailable, Detective Sharon Coffey took a statement from her about what had happened in the doctor's room.
In her conversations with Detective Coffey and another police officer, the idea of Ms G wearing a listening device and returning to see the accused was raised. Ms Gd said that she was keen to get what she described as "solid evidence". Accordingly she made a further appointment to see the accused and returned to his practice on 1 May 2014. Ms G also needed to get her medication injected and she wanted to know if she was going to get a prescription for her rash, something which had not been offered to her at the appointment on 29 April.
So it was that when Ms G returned to see the accused on 1 May 2014 she was wearing a device which enabled a recording to be made of what happened during that consultation.
Ms G said, and the recording confirms, that a nurse injected her with the medication. After that the accused asked to check her. Ms Ggave evidence that she got onto the examination bed and lifted up the dress she was wearing. It was her evidence that the accused pulled her underpants down to her knees. She was asked to roll over, the accused examined her and said that it was "a beautiful rash". After this Ms G said that the accused touched her clitoris rubbing it with his finger. The relevant part of the recording reads it this way: 'Ms G: "are you meant to be doing that?" Accused: "yes, you like this?" Ms G: "no, it's alright" Ms G: "you don't have to examine that. No, thank you" Accused: "all done?" Ms G: "why are you touching my vagina?" Accused: "no no no I'm not touching anything"'
On 1 May Ms G was examined by a doctor for the purpose of obtaining any forensic evidence. The doctor took swabs from her clitoris. When these were later analysed DNA matching that of the accused was found.
The accused's evidence at his first trial was that on 29 April 2014 the complainant visited the doctor to discuss contraception and to request a skin check. The accused commenced the skin check with the complainant standing and the accused checked her arms and her legs. The accused then asked the complainant to lie on the examination bed.
The complainant removed her top, her pants and pulled her underwear down to just above her knees to show the accused her scars. The accused said he did not take off any part of the complainant's clothing nor he did not touch the complainant's clothing. The accused said he examined the areas the complainant had complained about, the pubic area, the groin and between her hips. The accused said he looked everywhere separating the vulva to see if she had any discharge or rashes. The accused said that he received verbal consent from the complainant for everything he did. He was wearing gloves as he was conscious of infections.
The accused says he did not put his finger or his thumb into the complainant's vagina. The accused did ask the complainant to roll onto her stomach to check the spread of rashes on her back and buttocks. He spread the creases to find if there were any hidden rashes. As he was checking the complainant he was telling her what he was doing. The accused said: he did not put his finger in her anus; he did not put his finger in her vagina; he did not put his finger on her clitoris; he did not speak of massage; he did not place his arm in the gap in her legs; he did not touch her breasts.
The complainant returned on 1 May 2014 and discussed further with regard to contraception with the accused and once again he wanted to check her rashes.
When the accused was examining the rashes between the complainant's buttocks and she asked the accused if he was meant to be doing that, the accused responded "you like this" as he was enquiring if there was anything wrong with what he was doing.
I should mention at this stage that far as Count eight is concerned there is an issue concerning whether Ms Gd consented to being touched on the clitoris and whether she was under the authority of the accused at the time of the examination. These issues arise as far as Count eight is concerned because of Ms G's voluntary return to see the accused in an effort to obtain "strong evidence" against him.
One possible outcome that may eventuate is that I could be satisfied beyond reasonable doubt that the accused did the physical acts alleged by Ms G but not be satisfied beyond reasonable doubt that she did not consent in which case the accused would be found not guilty on count eight. Or I might not be satisfied beyond reasonable doubt that she was under the authority of the accused in which case the accused would be found not guilty of count eight but guilty of the alternative, non-aggravated, form of the offence (depending of course on my findings in relation to the other issues in the question trail).
Even if I were to find that the Crown had not satisfied me beyond reasonable doubt that Ms G was not consenting, or that she was under the authority of the accused, that in no way prevents what happened on 1 May being used in favour of the Crown as far as its reliance on tendency evidence is concerned. What matters when tendency evidence is considered is what the accused did, not whether, completely unbeknownst to him, because Ms G had already been to police and was endeavouring to a obtain evidence against him, she might have been consenting to what took place without being under his authority.

[14]

Tendency Evidence

The Crown relies on tendency evidence. It says that the evidence established that the accused in the course of his practice as a general practitioner had a tendency: 1. to engage in the digital penetration of the genitalia and /or anus of his female patients without medical justification; 2. to touch female patients in a deliberate, sexual manner; 3. to perform sexual acts on female patients whilst in consultation with them; and 4. to have a sexual interest in female patients.
I should explain my approach to this issue.
As I mentioned earlier, although the jury at the previous trial found the accused guilty on four counts involving Ms G, that does not relieve me from making my own determination as to whether those allegations have been proved beyond reasonable doubt, something I must do before I can consider whether those events establish, when considered with other allegations I have found proved beyond reasonable doubt, that the accused had the tendency which the Crown alleges.
To make matters clear there is a two stage process which I must perform before I can accept the Crown's argument as to the accused's tendency, both of which involve me assessing whether matters have been proved beyond reasonable doubt.
The first thing I must do is to examine each allegation made by the complainants individually and decide whether that allegation has been proved beyond reasonable doubt. Once I have done that I then look at only those allegations which I have found proved beyond reasonable doubt and decide whether those matters prove beyond reasonable doubt that the accused had the tendency alleged.
I should perhaps make it clear that there is something I have not done. Three of the complainants, Ms D, Ms M, and Ms G refer to a particular action of the accused, namely lifting their pubic area off the examination bed while are they are lying face down on it. Despite their descriptions of this behaviour being strikingly similar I have not taken this circumstance into account as either tendency or coincidence evidence. The tendency notice relied on by the Crown is specific and makes no mention of any reliance on this similarity in the descriptions given by these three complainants.

[17]

Question 1 - The physical acts alleged

Counts one to six and eight are allegations of aggravated sexual assault. The elements of those offences are set out in a question trail which is an annexure to this judgment. Count seven is an allegation of indecent assault. The question trail applicable to that offence is also attached as an annexure. I will move through the question trails for each count beginning with the physical element.
Before, however I get to the evidence relating to the specific counts I should note some matters of relevance to all of the counts.
With the qualification I have referred to above when discussing demeanour, each of the complainants appeared to be doing her honest best to tell the truth when she was giving her evidence.
It is an obvious point to make, but I will make it anyway, that the events described by the complainants were likely to be highly memorable to them. Two examples can be given. Ms D says she went to the doctor for cystitis and back pain and ended up on an examination table with the doctor's finger in her anus. Ms E says she saw the doctor for abdominal pain and found herself lying on the examination table with the doctor's hand down her underpants and his finger on her clitoris. Similar things can be said about the events described by all the complainants.
As is inevitable when people tell the same story multiple times Mr Strickland SC, who appeared for the accused in the first trial, was able to expose differences between things said by the complainants in court and things they had said on earlier occasions. None of these differences were of great significance and their existence is consistent with the way I understand memory operates.
Mr Strickland was also able to demonstrate that some things said in evidence in court had not been said to the police when statements were taken. This too I found to be unsurprising - the process of taking a statement is very different from the process of being spoken to by a prosecutor before trial and giving evidence in the trial. Lawyers invariably ask questions of witnesses which had not been asked by police. I did not regard the fact that the complainants were revealed in cross examination to have said things in court which they did not earlier say to police to have much significance at all in my assessment of the evidence of each complainant.
In assessing the credibility of the complainants I take into account all the evidence in the case, not only the evidence in the Crown case. The medical and psychiatric evidence relied on by the accused as part of his case - that if he did assault these women his actions were involuntary, and if his actions were voluntary he was mentally ill - must be taken into account in deciding whether the Crown has proved beyond reasonable doubt that he acted in the way the Crown says he did.
I will not examine the question as to whether the Crown has proved beyond reasonable doubt that the accused did what the complainants alleged that he did in the order in which the various counts appear on the indictment. Instead I will deal with Ms G's allegations first. That is because her allegations concerning the events of 1 May 2014 (Count eight on the indictment) are strongly supported by independent evidence and, if proved beyond reasonable doubt, that allegation may be able to be used as part of the tendency reasoning relied on by the Crown.
I will then turn to Ms E's allegations for similar reasons before going through the remaining allegations in the order they appear on the indictment.

[18]

Count 8

The most obvious place to start in determining whether the Crown has proved beyond reasonable doubt that the accused touched Ms G's clitoris on 1 May 2014 is the listening device recording. The most relevant parts of that recording have been extracted above. Clearly Ms G's enquiry "are you meant to be doing that" suggests that something untoward is going on. And the accused's response "yes, you like this?", even given that the accused's first language was not English, is powerful corroboration of Ms G's evidence that he was rubbing her clitoris at the time.
Even more support is to be found in the DNA evidence, with DNA matching that of the accused being found on a swab taken from Ms G's clitoris soon after she left the doctors rooms.
That the accused would massage Ms G's clitoris during a medical examination is consistent with evidence Ms G gave about the accused offering to massage her during her visit a few days earlier, something both she and her mother gave evidence that she complained about soon after that consultation was finished.
Of course the various parts of the evidence in relation to count eight are not to be looked at in isolation from each other. Each bit of evidence may not, by itself, be capable of proving the first element of Count eight beyond reasonable doubt. Thus for example the DNA evidence might be capable of innocent explanation such as transference of the accused's DNA onto Ms G's clitoris in a manner other than that described by her, and the accused's use of the phrase "yes, you like this" might perhaps be innocently explained as well if looked at in isolation. But that is not the proper way of assessing whether the first element of count eight has been proved beyond reasonable doubt.
When I consider all the evidence relating to count eight I am satisfied beyond reasonable doubt the accused did rub Ms G's clitoris as she alleged. In fact I would describe that conclusion as overwhelming for the reasons I now summarise:

Both the complainant and her mother gave evidence that on 29 April 2014 Ms G complained to her mother that the accused offered to massage her
Ms G gave evidence that that is what the accused later did on 1 May 2014.
Her evidence about the events of 1 May 2014 was strongly supported by the listening device recording.
Her evidence was also strongly supported by the DNA evidence.

[19]

The uncharged acts of 29 April

As I mentioned above, the Crown relies on Ms G's evidence as tendency evidence in relation to the other counts. Ms G also gave evidence about what occurred to her on 29 April 2014. Because it may be relevant to the Crown's tendency argument I will determine at this stage whether I am satisfied beyond reasonable doubt that the accused acted the way she said he did during that earlier consultation.
Everything Ms G did immediately upon leaving the Tri-Star medical centre is consistent with her allegations being true. She made immediate complaint to her mother. She then went straight away to the police. She agreed to be fitted with the listening device in order to get "solid evidence" against the accused. It is difficult to see why Ms G would have done those things if she had not been sexually assaulted by the doctor just a short time previously. One of the things that she alleged against the doctor is that he offered to massage her, something I've found he did do when she returned a few days later.
As I have already mentioned, as Ms G gave her evidence about the circumstances of her first complaint to her mother, she began crying in the remote witness room and she took up the offer of a break. She was clearly upset. I could see nothing feigned about her reaction and interpreted it as being the product of her recalling the emotion she felt during the phone call with her mother.
I am satisfied beyond reasonable doubt that the accused sexually assaulted Ms G in a number of ways on 29 April 2014.
It is important, at this stage, to recognise the importance of the recording. It strongly suggests that Ms G is both honest and accurate when she says the accused touched her clitoris during the examination on 1 May. And the very fact that on 29th April she went to the police and volunteered to go back with a listening device is entirely consistent with her allegations as to what happened that day being truthful as well.
The recording itself is also helpful in considering other issues in the trial in particular whether the accused's actions were voluntary and whether he was mentally ill at the time of the examination, a subject I will return to later in this judgment.

[21]

The tendency is established

At this stage I interrupt my examination of whether the first element for the various counts has been proved by considering the Crown's tendency argument. I have found beyond reasonable doubt that the accused sexually assaulted Ms E on 6 May 2012, and Ms G on 29 April 2014 and 1 May 2014. I am satisfied also beyond reasonable doubt, because this is undisputed, that the accused was acting strangely at various times in 2012, 2013 and 2014.
That is the first step in considering whether the Crown is able to rely on tendency evidence. I have decided what has been proved beyond reasonable doubt because it is only matters proved to that high standard which I look at when I move to the next step. The next step is to consider whether I am satisfied beyond reasonable doubt that those matters I have found proved establish the tendency which the Crown alleges.
I am satisfied beyond reasonable doubt that the tendency has been proved.
The offence involving Ms E was the first in time on the indictment and the offences involving Ms G were the last in time. This tends to suggest that any tendency established by the Crown existed at the time of the other alleged offences on the indictment.
There is no possibility of the evidence of any of the complainants being contaminated by their knowledge of what another complainant might allege. Both of the complainants gave uncontradicted evidence that they did not know any of the other complainants and each had already complained to someone else about the accused's behaviour before the fact that the accused was charged in relation to Ms G's allegations became widely known.
The circumstances in which Ms G and Ms E were sexually assaulted had some common features. In each case they had attended the accused for a medical consultation, in each case the accused assaulted them whilst on the examination bed in his room, and in each case the assault included a particular form of touching, namely him touching his patient's clitoris with his finger.
The result is that when I consider whether the first element has been proved for the remaining counts I take into account not only the evidence relating to that count specifically but also the tendency which I have found proved beyond reasonable doubt.

[22]

Count 1 - Ms Y

Ms Y gave her evidence in a confident way, although she appeared, at least initially, to be a bit embarrassed about having to describe the more intimate and detailed aspects of her evidence.
Her explanation as to why she delayed contacting the police made perfect sense. She initially thought that she would not be taken seriously, but after reading the article in the newspaper she realised that her evidence could be important to corroborate the allegation which had led to the accused being charged
It was put to her in cross examination that the accused had used gauze covered with Betadine to clean the area of her cyst after it was lanced. Ms Y was adamant that what she felt was not gauze or lint or any kind of fabric - what she felt was a finger penetrating her vagina twice and her anus once. It is unlikely, indeed it is impossible, that Ms Y has mistaken the accused cleaning the area with gauze for repeated penetration by the accused's finger, especially when she said that she felt the finger penetrate her to a significant degree - "half an index finger".
Nor is there any possibility that the accused accidentally penetrated Ms Y's vagina and anus while applying Betadine. The cyst was on the outside of Ms Y's labia majora and she said it was about 3 cm away from the opening to her vagina. In such circumstances it would be impossible for the accused's repeated penetration of Ms Y's vagina and her anus to be accidental.
Nor did the accused, when he gave evidence in the first trial, suggest the possibility of accidental penetration. He said he remembered the occasion when he treated Ms Y because of the unusual symptoms and it was the first time he had ever performed that specific procedure. He described in detail what he did. I have already mentioned that the accused now claims that when he gave that evidence he did not in fact have an independent memory of the consultation, but in any case there were significant differences between Ms Y's description and the accused's such as whether or not he used a local anaesthetic and whether or not he had squeezed the cyst with forceps. His description does not allow for any accidental penetration of Ms Y's genitals or anus.
As I have noted above Ms Y made immediate complaint to her friend S M about the doctor's behaviour.
The sexual assaults Ms Y describes are strange behaviour on the part of a doctor, but then strange behaviour was a regular feature of the accused's presentation at the relevant time.
Especially when taken together with the tendency evidence I found proved, I am satisfied beyond reasonable doubt that Ms Y's evidence was both honest and accurate when she describes the three acts of sexual intercourse perpetrated on her by the accused.

[24]

Count 6 - C S

When giving evidence about what happened in the doctor's rooms Ms S was clearly upset and crying, wiping away tears on occasions. She appeared not only stressed but also upset as she recalled the events she was describing. Her emotional responses while giving evidence were clearly appropriate to the matters she was giving evidence about. She appeared to be disturbed and distressed at the fact she had been violated by a person in whom she had put her trust.
The complainant's demeanour while giving evidence about the events in the doctor's room was entirely consistent with what I would expect from a woman who was asked to describe the experience of being sexually assaulted by her treating doctor.
That is not to say that her demeanour was consistent throughout the entirety of her evidence. During cross-examination when she was confronted with documents tending to contradict her claim that it was police inactivity which led to no action being taken after her initial complaint, and when she was confronted with a difficulty regarding how she knew the age of a person she said was 19, the complainant's demeanour changed. There appeared to be a great deal of reconstruction going on in her mind as she tried to explain things which were difficult to explain.
It is important also to note one limitation about using demeanour to prove the guilt of the accused on the count involving this complainant. Police records suggest that her initial complaint to them was of an indecent assault which did not involve penetration. But proof of penetration is essential for the Crown to prove the guilt of the accused on this count. The complainant's obvious distress when recounting what happened in the doctor's surgery may flow from an indecent assault where no penetration occurred. While the distress of the complainant when giving evidence, and when making early complaint to her friends and others tends to suggest that something seriously improper occurred in the doctor's room, that "something" may be an act which did not involve penetration - something the Crown is obliged to prove beyond reasonable doubt.
There is a great deal of evidence that the complainant complained to others about an assault of a sexual nature by the accused. Some of those complaints were made on the very day that the assault was alleged to have occurred. Some complaint witnesses remember an allegation which involved penetration of the complainant's vagina, but others remember a complaint which only involved inappropriate touching. All complaint witnesses gave evidence of the complainant being distressed as she recounted what the accused had done to her and some corroborated her evidence that it was this incident which changed her from being a non-drinker to someone who drank alcohol.
The complaint evidence is strongly supportive of the accused having acted in a sexually inappropriate way towards the complainant during his examination of her.
I find also that there is support for the complainant's evidence that what occurred was an act of penetration of her vagina. Ms C had fallen out with the complainant between the lunch at which complaint was made and her statement to police and the use of the term "pussy" is something which stuck in the complainant's sister's mind.
I accept that Ms S did not do one of the things she said she did - complain to the reception staff. Whether she was lying when she said she had done so, or mistaken, I do not know. The importance of the issue should not be overestimated however, because Ms S did complain to many people soon after she says she was sexually assaulted by the accused
There are two separate issues to be determined. The first concerns whether any assault occurred and the second concerns whether, if it did occur, it involved penetration.
Despite the contradiction in the evidence as to whether the complainant told reception staff that she had been assaulted by the accused, there is a great deal of evidence that complaint was made to a number of people within a short time of the complainant leaving the practice. It would not be surprising for any woman who has been sexually assaulted to be reluctant to go into details when complaining about the nature of the assault, or for complaint witnesses to misunderstand or misremember.
Ms S was an impressive witness who made a clear compliant of penetration when giving evidence and when earlier complaining to her former friend Ms C and her sister. I am satisfied beyond reasonable doubt that she was reliable when she gave evidence that the accused penetrated her vagina with his thumb.

[27]

Question 2 - Consent

When I answer question two, which concerns whether the relevant complainant consented, I can be very brief for all counts on the indictment apart from count eight.
For the reasons given above I accept the evidence of the complainants in counts one to seven who said in each case that they did not consent to the relevant physical act of the accused.
Accordingly for those counts I answer question two "yes".
The answer to this question for count eight is far from easy.
I have described above what led to Ms G returning to the accused's surgery on 1 May 2014. I have already referred to her evidence as to why she agreed to go back whilst wearing a listening device. In her mind it was to obtain "solid evidence" against the accused. True it is that she also received an injection given to her by a nurse, but that is consistent with her wishing the accused to regard her visit to see him as being entirely normal.
Can the Crown prove in those circumstances that she did not freely and voluntarily agree to the accused touching her clitoris? She certainly consented to returning to see the accused and being examined by him. Her agreement to get on the examination bed and be examined by the accused was part of her desire to obtain evidence against the accused in support of her allegations that he sexually assaulted her a few days earlier. I have no doubt that she would have preferred to never see the accused again and certainly to never be physically examined by him, but she was prepared to allow such things to happen. She agreed that he could examine her, which given the area of her body about which she was complaining, amounted to agreement that he could touch intimate areas of her body.
But did she freely and voluntarily agree that as part of that examination the accused could touch her clitoris? Or to put it more accurately has the Crown proved beyond reasonable doubt that she did not consent to that happening.
On one view of the evidence she actually wanted that to happen - she wanted to get solid evidence against the accused. If that be the case then she was clearly consenting to the accused doing just that.
On another view of the evidence Ms G did not want that to happen - she would have preferred that the accused not touch her clitoris.
Although it is clear that no person is taken to have consented to sexual intercourse merely because they did not take any physical action in an attempt to prevent the intercourse occurring, how a person acts can be an indication of what is going on in his or her mind - in this case what that person is agreeing to.
There are many examples of human behaviour where people consent to something happening which they do not want to happen. A gambler at a casino consents to losing money when the cards fall the casino's way. A boxer consents to being hit by an opponent even though he or she desires that that does not happen.
In my view the Crown has not proved beyond reasonable doubt that Ms G did not consent to being touched on the clitoris by the accused, even though she would have preferred that did not happen.
That means that the accused should be acquitted on count eight.

[29]

Questions 4 and 5 - Voluntariness

Before I analyse the evidence on this case as regards the 4th and 5th questions, which concern voluntariness and the difference between sane and insane automatism, I will set out what I understand to be the relevant legal principles. I will also examine some of the history behind those legal principles. I have done this at some length for three reasons: first it is interesting; secondly there were gaps in the trial which gave me time to do it; and thirdly because although how the law got to where it was can be seen from its history, the destination is, in a least one respect, an uncomfortable one.
One of the things the Crown must prove, and prove beyond reasonable doubt of course, is that the accused was acting voluntarily when he performed the physical acts which give rise to each count.
Underpinning the criminal law is a basic notion. It was expressed by Toohey J in The Queen v Falconer (1990) 171 CLR 30 this way: "a person is responsible only for conscious, voluntary and deliberate acts or omissions". Thus, the law does not punish people for actions over which they have no control.
It is perhaps easier to understand which actions are voluntary by considering the sort of actions which are not. One example is sleepwalking. If a person, whilst sleep walking, went into someone's home and took something from it then even though that could amount to the offence of breaking, entering and stealing, if the person had no control over his or her actions then that person is not guilty of a crime. Sleep walkers might be thought to have no control over what they are doing, that is their actions are not voluntary. An extreme example of this is to be found in the Canadian decision of R v Parks [1992] 2 SCR 871 where a man who, whilst asleep, drove a car and killed two people by stabbing them, was acquitted of murder by a jury.
If I accidentally put my hand on a hot surface and pull it away quickly as a reflex action, hitting someone who is standing nearby then, it could not be said that I have hit that person voluntarily because I never chose to move my arm, it being an automatic reaction to me touching the hot surface.
And as a final example, a person experiencing an epileptic seizure may have no control over the way their muscles contract. Thus if a person experiencing such a seizure is in the driver's seat of a vehicle which collides with another, that person could not be said to have been driving the car at the time of the collision because their muscle movements were involuntary (see R v Youssef (1990) 50 A Crim R 1 and R v Gillett [2005] NSWDC 20).
In each of the examples given above the physical actions performed were not the product of a willed mind. They did not involve any choice by the person to do what he or she did.
Various terms have been used to describe the concept of voluntariness, as it is known to the law. Often used is the concept of "free will", see for example Kitto J in Vallance v The Queen (1961) 108 CLR 56 at 64. In Falconer at 39, Mason CJ, Brennan and McHugh JJ explain: "the notion of 'will' imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature".
I find this explanation to be a helpful one. A voluntary action is one:

which is consciously chosen
with an awareness of what the person was doing

[30]

The difference between sane and insane automatism

Things get a bit harder now because it is important to understand that different consequences flow depending on whether any involuntariness flows from insanity or unsoundness of mind. There is a distinction in law between sane automatism and insane automatism. The former entitles an accused to an outright acquittal while the latter only entitles the accused to a verdict of not guilty on the grounds of mental illness. I will explain why.
The starting point is to return to The Queen v Falconer (1990) 171 CLR 30. Having pointed out the correspondence between the West Australian Criminal Code and the common law on the relevant issues, Mason CJ, Brennan and McHugh JJ say, at 44: "the jury is precluded from returning a verdict of acquittal … if the accused raises an issue of automatism which depends to some extent on unsoundness of mind".
Further confirmation that their Honours' view is that an insane automaton does not receive an unqualified verdict of not guilty is to be found at 45: "if the reason for alleged automatism is not 'something other than a defect of reason from disease of the mind' the jury must not return an unqualified verdict of acquittal". And finally at 47: "once disease of the mind appears to be a cause of an incapacity to control actions an accused who relies on automatism must be acquitted, if at all, on the grounds of insanity"
These passages confirm my understanding of their Honours' view that if the "cause" of the automatism (or the "reason" for it) is a disease of the mind, then the accused is entitled only to a qualified acquittal. (I should note of course that their Honours were in the minority as far as the result of the appeal is concerned, but their disagreement did not concern any aspect of present relevance.)
I then turn to the judgment of Dean and Dawson JJ. Their Honours say, at page 63: "if… the prosecution disproves sane automatism and the evidence raises the question of insane automatism, the jury will have to ask themselves whether on the balance of probabilities, the evidence establishes insanity… that will as we have said embrace insane automatism. If the evidence does establish insanity an accused will be entitled to an acquittal, but the jury will be required to say that the acquittal is on account of unsoundness of mind. If the prosecution does disprove sane automatism and if insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict." (the emphasis is mine)
Still in Falconer, Toohey J, at 72 said: "… Where criminal responsibility is at issue, the question ultimately is whether the act or omission in respect of which an accused has been charged occurred independently of the exercise of his or her will and where appropriate, whether the lack of capacity to exercise the will was due to mental disease".
The final judgment in Falconer was that of Gaudron J. Her Honour said: "the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.
So, the various judgments in Falconer speak with one voice. There is agreement that an accused who acts involuntarily due to mental illness is not to be acquitted outright, but only to be found not guilty on the grounds of mental illness.
Not surprisingly the NSW Court of Criminal Appeal did not disagree. In R v Youssef (1990) 50 A Crim R 1 the importance of determining the cause of an automatistic state was emphasised, per Hunt J (as he then was) at 5: "This duality of relevance has led to a distinction being made in the cases between insane and sane (or noninsane) automatism, an intellectually unhappy and artificial distinction which at times produces both unsatisfactory and inconvenient results and a distinction which is often difficult of application."
My understanding of Falconer as it relates to this issue is that it is also consistent with the way the other common law jurisdictions have approached the matter. For example in Canada there is the case of the man who drove, and killed, whilst asleep to which I made earlier reference.
In R v Parks, the judgment of La Forest, L'Heureux-Dube' and Gonthier JJ contains this statement, at 896, (it being important to not stop reading after the first sentence): "A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. One qualification to this statement should be noted. When the automatistic condition stems from a disease of the mind that has rendered the accused insane, then The accused is not entitled to a full acquittal, but to a verdict of insanity".
Turning now to the United Kingdom, it is perhaps best to start with R v Quick [1973] QB 910 as it is case which bears some similarity with the present and also because it considers some earlier authority such as Bratty v Attorney - General (Northern Ireland) [1963] AC 386 to which further reference will be made below.
The appellant, a diabetic, assaulted someone. There was evidence that the appellant had been violent in the past when his blood sugar got too low (hypoglycaemia). At trial the judge had held that if the jury were to accept the evidence relied on by the appellant then the verdict should be not guilty by reason of insanity. On appeal it was held that "if Quick's alleged condition could have been caused by hypoglycaemia and that condition, like psychomotor epilepsy, was a disease of the mind…" then the trial judge's ruling was correct.
Later in a case which concerned hyperglycaemia (high blood sugar), R v Hennessy [1989] 2 All ER 9 the Court of Appeal held that "if the defendant did not know the nature and quality of his act because of something which did not amount to defect of reason from disease of the mind then he will probably be entitled to be acquitted on the basis that the necessary criminal intent which the prosecution has to prove is not proved. But, if, on the other hand, his failure to realise the nature and quality of his act was due to a defect of reason from disease of the mind, then in the eyes of the law he is suffering from insanity, albeit M'Naghten insanity."
So my understanding of Falconer is consistent with the way courts in NSW, the United Kingdom and Canada approach the same issue.
It is also consistent with policy which has guided this area of the law for over 200 years.
As I mentioned earlier Toohey J in Falconer (at 67) said that: "the basic notion of the criminal law (is) that a person is responsible only for conscious, voluntary and deliberate acts or omissions".
In one sense it thus could be expected that the criminal law would cease to concern itself with those who act involuntarily or unconsciously and leave other parts of the law to deal with the need to protect society from future involuntary or unconscious dangerous actions. However the criminal law has, for a very long time, not washed its hands of those whose acquittal results from a mental illness. Policy considerations relating to the desire to protect society from dangerous behaviour have required that those found not guilty on the grounds of mental illness are not acquitted absolutely.
For a long time such people were detained at the Governor's Pleasure but comparatively recent reforms which introduce, in this state, the concept of supervision by the Mental Health Review Tribunal, have made it clear that the policy behind an acquittal on the grounds of mental illness is that such people are detained only as long as that detention in necessary. Section 81(2) Mental Health Act provides that the Mental Health Review Tribunal must review those found not guilty on the grounds of mental illness and make a recommendation as to that person's release from custody only where it is satisfied: "that the safety of the person or any member of the public will not be seriously endangered by the person's release".
It is important to remember the well-accepted place of policy when the criminal law deals with those found not guilty on the grounds of mental illness. A "pure" application of the notion to which Toohey J referred might suggest that it would not matter why an accused was acting in an involuntary way, and that, whatever the cause, as soon as there is a reasonable possibility that he or she was acting involuntarily the criminal law should no longer be concerned with that person. However the criminal law does not operate that way. The very availability of a verdict of "not guilty on the grounds of mental illness" and the legislation providing for the detention of those found not guilty on those grounds demonstrate the importance of the policy that society desires to be protected from further misconduct by those who have committed offences whilst mentally ill.
Judges in other jurisdictions have explained why the policy of protecting society results only in a qualified acquittal to those found not guilty on the grounds of mental illness. In Bratty v Attorney - General (Northern Ireland) [1963] AC 386 Lord Denning said, at 410: "suppose a crime in committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean that he would be let large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others".
A similar point was made by Devlin J in Hill v Baxter [1958] 1QB 277 at 285-286: "For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to a disease and the other where it is not. The distinction is not an arbitrary one. If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. But if disease is present the same thing may happen again and therefore, since 1800 [see the Criminal Lunatics Act 1800], the law had provided that persons acquitted on this ground should be subject to restraint".
Returning to the Canadian case of Parks, it seems that the Canadian approach is guided by the same policy, at 901: "The 'pith and substance' of the legislative scheme dealing with individuals acquitted by reason of insanity is the protection of society from dangerous people who have engaged in conduct proscribed by the Criminal Code through the prevention of such acts in the future".
It is for the reasons I have set out above that I consider that a person who is acquitted because the jury accept the reasonable possibility that the person was acting involuntarily, but where the cause of that involuntary action is found to be, on the balance of probabilities, a disease of the mind, is not entitled to a compete acquittal, but only a verdict of "not guilty on the grounds of mental illness"

[31]

Hypoglycaemia and hyperglycaemia - different outcomes

It is at this juncture that I should return to the case of R v Quick. Their Lordships entered what they described as a "quagmire of law seldom encountered nowadays" as they attempted to decide whether hypoglycaemia was a "disease of the mind". The conclusion they reached was this: "in this case Quick's alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of disease which disturbed the working of his mind".
As I mentioned earlier, R v Hennessy [1989] 1 WLR 287 was a case of hyperglycaemia rather than hypoglycaemia. The former "caused by an inherent defect and not corrected by insulin is a disease, and if, as the defendant was asserting here, it does cause a malfunction of the mind, then the case may fall within the M'Naghten rules".
Thus the law in the United Kingdom as far as automatism is concerned draws a distinction between hypoglycaemia and hyperglycaemia. That was confirmed in R v Bingham (Court of Appeal, Criminal Division 8 February 1991). A comment on that case in [1991] Crim LR 433 noted that where automatism results from hypoglycaemia "it is as if the automatism has been caused by an accidental blow on the head".
To summarise in simple terms all I have written on this topic, if the accused was acting involuntarily because he was in a hypoglycaemic state then the proper verdict is "not guilty", but if the accused was acting involuntarily because he was in a hyperglycaemic state then the proper verdict is "not guilty on the grounds of mental illness".
It is not for me to question the wisdom of this state of the law which draws a distinction based on whether the cause of criminal behaviour is due to too much insulin and not enough sugar on the one hand, or too much sugar and not enough insulin on the other. How we got here is understandable but the destination is one which suggests that some re-examination of this area of the law might be helpful.
Hyperglycaemia can result from too much sugar. Hypoglycaemia can result from too much insulin. The law seems to treat insulin differently to sugar - too much of one substance being introduced into the body leads to one result in law but too much of the other substance leads to a different result. Why this should be is not easy to determine. Fortunately for the law, the evidence in this trial would suggest that automatism as a result of hyperglycaemia is much rarer than automatism as a result of hypoglycaemia, so the illogical treatment of the two conditions may never lead to inconsistent outcomes in practice.
Before I, finally, look at the facts of this case there is something else to which I should refer. As one of the possible outcomes of this case is a verdict of "not guilty on the grounds of mental illness", I should set out some more principles of law. If there were a jury I would have instructed them in conformity with my duty under section 37 Mental Health (Forensic Provisions) Act 1990, but I would also have told them, consistent with R v Hilder (1997) 97 A Crim R 70 that they should not allow the consequences which I had explained to them to affect their verdicts. Given that there is no jury in this trial I am obliged to have regard to the legal and practical consequences of a finding, in this case, that the accused is not guilty on the grounds of mental illness.
If the accused is found "not guilty on the grounds of mental illness" he will be detained until the Mental Health Review Tribunal is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release and other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the accused or that he does not require care (see section 43 Mental Health (Forensic Provisions) Act.

[32]

The accused is a diabetic and also bipolar

The reason that I have focused my examination of the law of automatism on the illness diabetes mellitus is because the accused was diagnosed with that condition on 25 August 2012, after the first count in time was alleged to have been committed but before the others.
After his arrest he was also diagnosed as suffering from Bipolar Affective Disorder. Indeed he may have even been diagnosed as suffering from that condition beforehand by a clinical psychologist named Bruce Petersen, but there were so many problems with his evidence that I have my doubts. (I don't doubt that the accused has Bipolar Affective Disorder, what I doubt is whether the psychologist ever diagnosed it).
The interaction between Bipolar Affective Disorder and diabetes is an unhappy one. Dr Stephen Thornley, an endocrinologist, describes a "a vicious circle" because on the one hand "there is… ample evidence in the Medical literature that Bipolar Affective Disorder can lead to a profound deterioration in diabetic control…" and on the other hand "patients with diabetes mellitus are well described to have a 3 fold higher prevalence of affective disorder, this can be exacerbated by both hypoglycaemia but also hyperglycaemia…"
At the beginning of the trial the accused, through his counsel, raised for my consideration what he said was the possibility that through a combination of his type II diabetes and bipolar affective disorder he was not acting voluntarily when he did the physical acts which form the basis of the charges against him. As I explained above it is thus for the Crown to prove beyond reasonable doubt that the accused's actions were consciously chosen by him with an awareness of what he was doing.
There was a significant difference between the cases advanced by the Crown and the accused concerning the extent to which the accused's blood sugar levels had fluctuated over the period covered by the counts on the indictment. The Crown pointed to such matters as

Dr Raza assessed him as fit to drive on 7 April 2013
Dr Cohen, an endocrinologist reported on that the accused's blood sugar levels were well managed
Dr Joshi, another endocrinologist did not record any concerns about the accused's diabetic control.

On the other hand the accused pointed to the very important circumstance that these offences occurred around the time that the accused was diagnosed with diabetes, and that there had never been any other suggestion made that the accused had acted in that way before. Whilst correlation does not equal causation, the case of the accused was that something must have happened to explain the change in the accused's behaviour. The accused also relied on the history of undeniably bizarre behaviour displayed by the accused, some of it being seen on CCTV footage and other behaviour being the subject of numerous contemporaneous reports.

[33]

Strange behaviour by the accused

There was plenty of evidence about the accused's strange behaviour whilst working at the Tristar medical centre, some of it being seen by staff on CCTV footage who were attempting to identify who was responsible for some unusual events. Not only is this relevant to the issue I am presently dealing with, automatism, but it is also relevant to the later question concerning the defence of mental illness which relies on the proposition that the accused was suffering from bipolar affective disorder.
The strange behaviour included:

Coming into the surgery overnight and taking a plumbers toolbox, returning it without explanation after CCTV footage showed him taking it
Leaving confidential patients notes in the recycling bin rather than a place where they would be secure
Buying many things he did not need (including many many coffee machines) and hoarding them
Hoarding large quantities of promotional material he received from drug companies
Falling asleep in front of a patient
Breaking the telephone in his room by slamming it in apparent frustration
Taking a computer set up for another employee from that employees office
Screaming at reception staff about another doctor at the practice having more patients than him
Re-using instruments that had not been sterilised
Complaining loudly at reception about the distribution of certain patients amongst the doctors at the practice
Having a patient clean his room after hours
Leaving a bin liner containing faecal matter, two emesis bags and an insulin pen on the sink in the men's toilets, something also seen on CCTV footage
Shouting at reception about booking a patient with another doctor in front of another patient
Carrying a teddy bear type toy around the surgery in the middle of the night
Asking a receptionist to come into his room to look at the genitals of a patient and to express an opinion as to whether the patient's vagina looked infected
Coming into the surgery after hours, sitting on the floor and pulling himself along like a dog with worms, yet another thing seen on CCTV footage.

Some of the behaviours referred to above, such as reusing unsterilised equipment and yelling at people may just be evidence of the accused being a bad doctor and an unpleasant person, but they take on a different complexion when they are considered as part of a lengthy period of behaviour which includes the simply bizarre.
Then there is the unusual behaviour, at least without explanation, reported by the complainants themselves. As I have indicated above, I accept them beyond reasonable doubt as regards their interactions with the accused when they attended his rooms for medical treatment I will give some examples of the behaviour they described:

Ms Y described the accused penetrating her vagina, then her anus, then her vagina again with his finger. There is an obvious risk of infection involved in the accused penetrating Ms Y's vagina with the same finger he has just used to penetrate her anus, particularly when he has just lanced a boil or cyst on her labia majora with a scalpel.
Ms Y described the accused as "rambling" during her consultation.
Ms E went to see the accused complaining of abdominal pain, nausea, cramps and diarrhoea. But as well as referring her for blood and urine tests the accused also referred her for an ultrasound examination of her neck. Ms E had no memory of making any complaint about her neck to the accused.
Ms E and her mother describe the accused touching her in a sexual way towards her despite her mother's presence in the relatively small examination room, apparently in a position to see what the accused did when he touched Ms E's clitoris.
Ms E's mother, a nurse, was surprised that the accused did not take her daughter's temperature despite the nature of her complaint.
Ms D was examined on two separate occasions by the accused during the one consultation and he raised his voice towards her speaking in an annoyed tone of voice.
He gave gifts to at least two of the complainants.

Other patients too reported strange behaviour. Ms Gilmore, one of the receptionists gave evidence that she dealt with upset patients of the accused "every day" who complained that he had not even listened to what they had said.
Another receptionist, Mr Hudson, described the accused as "erratic". He said that the accused's behaviour caused his practice to be run in a "chaotic manner" and almost every day he had to deal with calls from pharmacies, radiology and pathology over problems caused by the accused.
Ms Clark commented on the accused's fluctuating moods saying the she was "never quite sure what sort of mood he would be in day to day". She also described the accused's behaviour as "erratic".
Ms Hudson, another receptionist, when asked if she had seen any unusual behaviour on the part of the accused said "each day was unusual. He's a very eccentric person".
The receptionist who was asked to inspect a patient's vagina described working with the accused as exceptionally challenging, saying that he was prone to ranting.
A doctor who worked at the clinic with the accused, Dr Yadav, said that in hindsight the accused "would have ticked all the boxes for bipolar".

[34]

Expert evidence on voluntariness

A lot of the evidence in the trial concerned the issue as to the likelihood that the accused was hypoglycaemic at the time he did the physical acts alleged against him by the Crown. The Crown does not have to prove beyond reasonable doubt that the accused's blood sugar was normal. What the Crown has to prove beyond reasonable doubt is that the physical actions of the accused were voluntary that is, the product of a willed act.
Deciding whether all of this strange behaviour, or any part of it, resulted from hypoglycaemia, or whether it resulted from the accused's bipolar affective disorder exacerbated by his fluctuating blood sugar levels, or whether there was no medical or psychiatric reason may not be necessary, because ultimately the experts on diabetes called by both the Crown and the accused agreed that if the accused did what the Crown alleged he did it voluntarily.
Professor John Carter AO gave evidence. He is a physician specialising in endocrinology. He explained what diabetes is, how it is diagnosed and how it is treated. He explained the difference between a hypoglycaemic episode and a hyperglycaemic episode, both as to their causes and also as to their effects upon cognition. The former can lead to significant deterioration in a person's cognition and behaviour whilst the latter produces only mild affects. Whilst hypoglycaemic episodes are of concern to road traffic authorities for example, the evidence does not establish any need to restrict the driving of those who suffer hyperglycaemic episodes.
Professor Carter was asked to express an opinion about whether the accused was suffering from a hypoglycaemic episode at the time of the alleged offences. He expressed the opinion that the accused was not experiencing hypoglycaemia, referring to observations of the accused made before, during, and after the offences were alleged to have occurred. This opinion was challenged in cross examination. But Professor Carter also gave evidence of his opinion as to the possibility that the accused was acting in an state of automatism. This opinion was not challenged at all. His opinion was best expressed in this passage from his written report: "Automatism is when a person is unable to control his muscles because they acted without the control of his mind and it would appear that the accused undertook conscious willed acts during the relevant consultations. He was able to discuss symptoms and then undertake a form of physical examination with each of the patients and was also able to undertake a rational discussion during the physical examination. For example, he commented on the reason for one examination being to have a close look at a rash and on another occasion to investigate for a possible urinary tract infection. If his blood glucose level had been sufficiently low to impact on the voluntariness of the acts (being conscious willed acts), I would not have expected him to be able to talk and discuss medical problems in a rational way or to be interrupted during a consultation and take a telephone call and apparently speak rationally during that telephone call."
When it was pointed out to him that there was evidence in the trial in the form of a listening device recording which revealed how the accused was behaving in the course of the consultation during which he allegedly rubbed the clitoris of a young woman, he said that hearing that recording would assist him. Accordingly Exhibit 41 was played to him in court. When asked whether what was heard on the recording was consistent with the accused suffering hypoglycaemia he said that it was very unlikely. There was nothing on the recording which indicated any problems with cognition, the accused was oriented with what he was doing and giving instructions to his patient such as to change position.
Although of course Professor Carter didn't have a recording of the other offences allegedly being committed but as I mentioned above he expressed the opinion that there was no evidence to be found of automatism or cognitive defect in the material he had reviewed. Further, he was not aware it ever being recorded in the medical literature that hypoglycaemia has been related to offences such as those alleged against the accused.
This opinion was not challenged in cross examination, no doubt because the expert called by the accused, Dr Thornley likewise was of the opinion that if the accused did what he was alleged to have done, the accused was acting voluntarily when he did it. He too was not aware of a case where a person acting involuntarily because they were in a hypoglycaemic state committed he sort of offences, or more accurately perform the physical acts, which the accused was alleged to have performed in this trial.
In his written report Dr Thornley referred to the allegations made against the accused by the complainants and then asked, but did not answer, this question, "…whether these incidents had a component of Automatism?" He did, however, answer the question in his oral evidence as can be seen in the following passage: Q. Doctor, let me ask you this: on page 3 of your report, the first or second paragraph, you say "the question arises as to whether these incidents had a component of automatism?" Do you answer that question? A. I didn't directly, but I will now. Q. Right. What will you say now? A. I would say now that the literature relates to, in diabetic patients having hypoglycemia, automatism is generally described in the context of driving a car. Q. Yes? A. And I have had one of my patients do just that in 20 years. I did not find any literature that defined or described automatism as causing behaviours such as we've seen alleged in this case, so the answer is no. Q. Right. I don't like putting words in people's mouths, so you'll let me if I'm wrong, you would not support any suggestion that the accused was acting involuntarily when he did what the Crown alleges he did? A. I don't think that the alleged behaviours relate to automatism.
Not only did the endocrinologists agree, but so did the psychiatrist called in the trial. Dr Jeremy O'Dea said in his report of 25 July 2018 "…in the context of the episodic nature of hypoglycaemic and hyperglycaemic episodes, I am not in a position to conclude that at the time of each or any of the alleged offences, Dr El Kheir was in such a state of hypoglycaemia, or hyperglycaemia, that would have pointed to his actions in relation to the alleged offences being considered involuntary."
Given the level of agreement noted above I should perhaps at this stage explain that there was a difference of opinion between the two endocrinologists on one particular issue, namely the extent to which fluctuations in blood sugar levels exacerbate bipolar affective disorder. Professor Carter was of the view that hypoglycaemia only exacerbated the symptoms of bipolar affective disorder during the period of the hypoglycaemic episode. On the other hand Dr Thornley relied on his experience, as well as a published study, in expressing the opinion that fluctuations in blood sugar levels exacerbate the symptoms of bipolar affective disorder over the long-term.
The study, "Insulin resistance and outcome in bipolar disorder" by Calkin et al, The British Journal of Psychiatry (2015) 206, found that patients with bipolar disorder and type II diabetes or insulin resistance had three times higher odds of a chronic course of bipolar disorder compared with patients with normal levels of glucose in their blood.

[35]

Conclusion on Voluntariness

I have little doubt that the accused suffered from bipolar affective disorder, his symptoms being exacerbated by fluctuating blood sugar levels, at the time of the alleged offences. But I am satisfied beyond reasonable doubt that he was nevertheless acting voluntarily when he performed the physical actions relied on by the Crown. My own assessment of the accused's conduct equates with the assessment made by the two endocrinologists and the one psychiatrist called in the trial. Although at times strange the accused's actions as alleged by the complainants were, I am satisfied, the product of his conscious decision to act in that manner. There may have been some defect in his cognition but that falls a long way short of equating to involuntary behaviour.
In each case the accused was able to understand the nature of the complaint which brought the complainant to see him in the first place and his responses generally matched the symptoms the complainants described. Thus when Ms Y complained of a cyst or boil on her labia he lanced it, when Ms E complained of stomach pain he palpated her abdomen, when Ms Sowarka complained of pain in her coccyx he examined her back. Similar things can be said about the other complaints as well. The accused's behaviour was consistent with him deciding to diagnose and treat his patients. That he went further and sexually assaulted them is not inconsistent with the proposition that the accused's behaviour was goal directed and organised.
Especially in the absence of any contradictory expert opinion I accept what Dr O'Dea said at paragraph 75 of his report "…whilst his poorly controlled Diabetes and Bipolar Affective Disorder may have significantly impact on his cognition, affect and behaviour, the description of his behaviours in relation to the alleged sex offences point to a pattern of goal directed and relatively organised behaviours, including allegedly conversing with and instructing the patients, and writing at least some structured medical notes at the time, would not point to a total disconnect between his alleged actions, and his knowledge of acting or consciousness of doing what was being done, and therefore would not point to his actions in relation to the alleged offences being considered involuntary."
The result is that when I consider question four in the question trail I find that the Crown has proved beyond reasonable doubt that the physical actions of the accused which constituted the relevant act of sexual intercourse or the relevant act amounting to an indecent assault were voluntary, that is the product of a willed act. The accused made a conscious decision to perform the physical acts alleged by the Crown with an awareness of what he was doing.
I am satisfied beyond reasonable doubt that the accused's actions were voluntary whether or not he was hypoglycaemic, or hyperglycaemic, or suffering from Bipolar Affective Disorder which was exacerbated by his fluctuating blood sugar levels.
Accordingly I need not consider question five but move on to question six which concerns whether the accused has proved on the balance of probabilities that as a result of a defect of reason from a disease of the mind he either didn't understand the nature and quality of his physical act or he was not able to reason with a moderate degree of composure as to the wrongfulness of his conduct.

[36]

Question 6 - Mental Illness

The penultimate question in the question trails concerns the defence of mental illness. Unusually for the criminal law, as the question trails make clear, the burden of persuading me that the accused has a defence of mental illness available is on the accused, on the balance of probabilities.
Although section 38 of the Mental Health (Forensic Provisions) Act refers to the special verdict that an accused person is not guilty by reason of mental illness it does not define the circumstances where an accused is to be considered as "not to be responsible… for his or her action at the time when the act was done" instead one looks to the common law.
The test was set down in 1843, and has remain unchanged. As Button J explained it in R v Gourlay [2015] NSWSC 67 at [50] and [51]: Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in M'Naghten's Case (1843) 8 ER 718 at [722]. The defence is established if it is more probable than not that: "at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong." In a well-known and oft-quoted summing up in The King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J (as his Honour then was) said with regard to the latter portion of the defence: "If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."
Much of what I have written above concerning the issue of voluntariness is of relevance when I consider the issue of whether the accused has satisfied me on the balance of probabilities that the accused has a defence of mental illness open to him. All of the evidence which went to the accused's mental state at the time of the alleged offences, especially concerning his bizarre behaviour, his treatment for diabetes, and his diagnosis of Bipolar Affective Disorder, is relevant to both the voluntariness and the mental illness defences. It is not necessary to repeat it here.
Dr O'Dea saw the accused at the request of the Crown. He provided a report and was called to give oral evidence. Consistent with his duty to the court, despite being called by the Crown he expressed the opinion that on balance, the accused had the defence of mental illness available to him.
Dr O'Dea gave evidence on two occasions in the following circumstances. On the first occasion, after Dr O'Dea expressed his opinion, for understandable reasons Mr Dalton SC asked few questions in cross examination. Later, in the course of what were expected to be her final submissions, the Crown asked me to reject Dr O'Dea's ultimate finding - that on balance the accused was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. Mr Dalton complained, arguing that it was procedurally unfair for this to happen. Accordingly, at the suggestion of Mr Dalton, the Crown applied for leave to reopen its case to recall Dr O'Dea so that the Crown could cross examine him. I granted such leave. The Crown thereafter sought leave under section 38 Evidence Act to cross examine him, something I also granted. I greatly appreciate Dr O'Dea's willingness to return to court at relatively short notice.

[38]

Impulsivity and appreciation of moral wrongfulness

In the course of his evidence on the first occasion, at T: 464.14 and T: 464.43 Dr O'Dea spoke about bipolar disorder being associated with "significant problems with judgment, disinhibition and behavioural control" as well as "great impulsivity and acting on urges without thinking through them or exercising control over them".
I mentioned above that the law and medicine sometimes interact unhappily. The issue I am presently determining is a good example of that. That is because psychiatry regards it as difficult, and perhaps even meaningless, to disentangle two recognised effects of Bipolar Affective Disorder, namely a reduced inability to control impulses and a reduced inability to reason about the moral wrongfulness of conduct. Despite that, the law insists that the distinction be made.
Mere diminution on the part of the accused to control his actions is not enough to justify a finding of not guilty on the grounds of mental illness. That conclusion is based on the decisions of the High Court, and then the Privy Council in Sodeman v The King [1936] 55 CLR 192. The correct statement of the law is perhaps most easily to be found in the judgment of Viscount Hailsham L.C. who delivered the judgment of their Lordships in the Privy Council, which included: "…in the submission of the petitioner the rules in M'Naghten's Case (1843) 10 Cl & F.200; 8 E.R 718 are no longer to be treated as an exhaustive statement of the law with regard to insanity and that there has to be engrafted on to those rules another rule that, where a man knows that he is doing what is wrong, none the less he may be insane if he is caused to do so by an irresistible impulse produced by disease. …Their Lordships do not think that that is a sound argument. "
The result is that the accused is not entitled to be found not guilty on the grounds of mental illness merely if because of his mental illness he found it difficult to resist the impulse to sexually assault his patients.
Now is not the place to discuss at length whether there are good policy reasons why the law should draw this distinction. Let me just say this. The assumption that general and specific deterrence are effective in reducing crime would preclude any change to the law which meant that those whose mental illness made it difficult to control their impulses would be found not guilty on the grounds of mental illness. But that same assumption should suggest that those who know that some conduct is legally wrong should be found guilty of it even if they have difficulty appreciating that the conduct is morally wrong.
Given the state of the law, it is important for me as the tribunal of fact in this case to distinguish between difficulties in controlling an impulse to behave a particular way and difficulties in appreciating that it is morally wrong to act in that way. A person can find it difficult to resist the impulse to do something which he or she knows is morally wrong. In fact psychological reports tendered on sentence are replete with such suggestions.
Dr O'Dea's opinion was based on the need to find some explanation as to why the accused would engage in such self-destructive behaviour. One explanation could be, said Dr O'Dea when he was first called to give evidence, that "he is not able to exercise the control over his actions… And he is not reasoning in a way that would appreciate that what he's doing is not only wrong but is likely to create significant problems for him and has not be unable to exercise his control in that regard."
In the Crown submissions made before Dr O'Dea's recall it was pressed upon me that that "the reasoning behind Dr O'Dea's opinion focuses strongly on a connection between mania and poor judgment or impulsivity." Yet the law draws a clear and important distinction between impulsivity and an ability to know that one's actions are morally wrong. As a psychiatrist Dr O'Dea had difficulty distinguishing between poor impulse control and difficulty knowing that behaviour was wrong, see T: 474.22. The two concepts may blur in psychiatry but they are kept separate in law.
When he first gave evidence, Dr O'Dea said it was "technically possible" for someone with bipolar to act impulsively but nevertheless still know that what they're doing is wrong. Dr O'Dea appeared then to be saying that in psychiatry it is difficult to draw a distinction between acting impulsively and knowing that something is wrong. But, again, that is an important distinction in law which must be maintained given the current state of the law.
It was the Crown's criticisms of Dr O'Dea on this issue which led to him being recalled. When he gave further evidence Dr O'Dea said that he understood the M'Naghten test to introduce "the concept of being able to control your behaviours". Further questioning of him by both the Crown, and me as well, emphasised to him that the law was as I have expressed it above. It was made clear that the test I had to apply "has nothing to do with his ability to resist the urges he feels". Assuming that to be the law he was asked "do you still maintain that the accused just gets over the line for the mental illness defence?" Dr O'Dea said that he still maintained that opinion. He explained that in psychiatry he brings two concepts together, cognition and impulse control, but he recognised in his evidence on being recalled that the law needs to differentiate between them.
He responded to the suggestion that his opinion was focusing too much on impulse control and not the ability to reason about the rightfulness or wrongfulness of his conduct by saying "I think it is incumbent upon psychiatry to connect these two. But that being said, … it is incumbent upon me as an expert witness, to separate them as best as I can." Once the correct legal test was explained to Dr O'Dea he was able to assist the Court by differentiating between impulse control and the ability to reason whether conduct was right or wrong.
His evidence was that problems with cognition resulting from bipolar mania lead to difficulties in "consciously assessing and recognising that the conduct you're doing is either right or wrong". He said at T: 510.14, What I'm really doing is looking at the impact that bipolar mania has on your ability to reason with a moderate degree of sense and composure. And we know that people who are in bipolar manic states are not reasoning with a, in a clear and coherent manner...And so this, you know, issue of the problems with mania, equally applies both to the cognitive arm, if you like, as well as the impulse control arm.
One of the most prominent features of this case concerns the accused's bizarre behaviour, including by sexually assaulting his clients, after years of apparently successful practice as a medical practitioner. Dr O'Dea is not alone in seeking an explanation. One aspect of his reasoning is that a conclusion that the accused was mentally ill is suggested by the mere fact of him having committed these offences. An issue which therefore needs to be considered is whether there is an explanation for these offences based on the accused having difficulty controlling his impulses as a result of his bipolar affective disorder exacerbated as it was by diabetes. I repeat what Dr O'Dea said about the connection between Bipolar Affective Disorder and impulse control at T: 464.14 and T: 464.43 where he says that bipolar disorder is associated with "significant problems with judgment, disinhibition and behavioural control" as well as "great impulsivity and acting on urges without thinking through them or exercising control over them". In order for the accused to succeed on this issue, I have to be persuaded that it is more likely than not that at least part of the explanation for the accused's commission of these offences is an inability to reason with a moderate degree of sense and composure about whether it was morally wrong for him to sexually assault his patients.
The reason that Dr O'Dea formed his opinion that the accused was unable to reason with a moderate degree of sense and composure about whether it was morally wrong for him to sexually assault his patients was explained by him this way: "I'm basing my opinion on his mental state as determined by a psychiatrist shortly after his arrest, his mental state when I saw him, his history in between times of psychiatrists and the information over time from people before he was arrested and the natural history of bipolar disorder and that's what I'm basing it on. And I'm also adding the fact as I think I said early on in my evidence that it is very often the case unfortunately then when people are still in a manic phase they, it's not always easy to detect and pick up and they can control it for periods of time and it needs often skilful experienced assessment and prodding and poking if you like and so the fact that there was no evidence of it on the audio tape or, in fact, the video tape doesn't exclude for me, the fact that he may have actually been manic at the time and you know, I've acknowledged that what I'm saying is something that has caveats to it because we're trying to extrapolate back and I'm being asked, I guess, to give a confidence statement which, of course, is the very important point of the Court and in doing so I've said that, you know, it's very difficult but I would personally would, on the basis of my understanding of the natural history of bipolar disorder, the nature and extent of his bipolar disorder and all of the information from other people, that, you know, his - he may tilt over into the, on balance, satisfying the M'Naghten rules."
Of course the accused relies on Dr O'Dea's opinion, emphasising his experience, Dr O'Dea's opinion being based on the correct legal test, that he took into account all the available evidence, Dr O'Dea's explanation for why he formed the opinion which he did, and the absence of any contradictory opinion.
Whether or not the Crown's criticisms of Dr O'Dea's understanding of the correct legal test had merit before he was recalled, I am satisfied that such criticisms cannot be maintained in the light of his further evidence. The correct test was explained to him repeatedly and it was clear that he understood it. He maintained the opinion he had earlier expressed and gave his reasons for doing so.

[40]

The Evidence regarding the accused's evidence to reason

In the next part of my judgment I will refer to the events of 1 May 2014 when Ms G made her return visit to see the accused and the accused was arrested. The fact that because the Crown was not able to satisfy me beyond reasonable doubt that Ms G did not consent means that he did not commit any offence on 1 May 2014. But the events of that day remain relevant in determining other issues, in particular concerning the accused's mental state.
There is in evidence a number of recordings of the accused's behaviour at the time of and soon after the accused rubbed Ms G's clitoris. They are Exhibits 41 and 48, the listening device recordings, exhibit 49, a recording made by police which commences soon after their entry into the consultation room and the ERISP interview, exhibit 76.
They reveal that when Ms G challenged him after he rubbed her clitoris the accused repeatedly apologised to her, saying the word "sorry" six times. Soon after police entered his room, within seconds of the accused having touched Ms G's clitoris, the accused says: "I don't touch female in my practice at all. At all. You can ask. I don't give this…at all. Doesn't look good at all. It does not look good at all. I'm hard worker and you can ask about - you can ask here in the community, they know me very well. I do not touch, touch , examine at all. I don't move from my office, from my desk."
Turning from the last allegation in time to the first, although there is no recording of the accused's voice, what he said is well-established. After Ms E's mother saw the accused put his hand down her daughter's pants and asked him what he was doing he pulled his hand out and told her that he was checking for a urinary tract infection.
Dr O'Dea had listened to the various recordings made on 1 May 2014 including the two recordings produced from the listening device worn by Ms G and the ERISP video where the accused repeatedly exercised his right to silence despite considerable pressure, and perhaps even trickery, on the part of the police. Dr O'Dea could find in those recordings no evidence that the accused was in the manic phase of his disorder. Dr O'Dea could not hear or see any evidence that the accused was significantly hyperactive, or that he was exercising poor judgment, or speaking very rapidly or appearing agitated. Nor could Dr O'Dea observe any evidence that the accused was in the depressed phase either.
Nor could Dr O'Dea point to any evidence that the accused did not know that what he was doing was wrong. Indeed he expressed the opinion that the accused's response to being confronted by the complainant (as heard on Exhibit 41) could be consistent with him understanding that what he was doing was wrong.
When the Crown asked Dr O'Dea about the things the accused said to police on 1 May 2014, he responded that it was a reasonable argument that if the accused did the acts that were alleged and he was falsely denying them, then that would indicate he was aware that his actions were inappropriate.
Dr O'Dea could point to nothing in the various recordings made on 1 May 2014 which would suggest that the accused had any difficulty appreciating that what he was doing was wrong.
Turning to the evidence relating to count four, when Dr O'Dea was asked about the significance of the accused's response to Ms E's mother's enquiry as to what he was doing by putting his hand down her daughter's pants, he said "well it's difficult to be definitive but I'm assuming that that is indicating that he realises that what he's doing is wrong".
Despite this evidence Dr O'Dea expressed what he acknowledged was a very speculative opinion that on the balance of probabilities the accused met the criteria in M'Naghten's Case.
On the second occasion he gave evidence, Dr O'Dea explained that despite the accused's conduct after being challenged by Ms E's mother and Ms G being consistent with him knowing that it was wrong to have just before touched his patients on their clitorises, it could well be that the accused knew that it was legally wrong, but of course the defence of mental illness focuses on moral wrongfulness.
Dr O'Dea was of the opinion that the accused's behaviours upon being challenged by Ms E's mother, after being challenged by Ms G, and after the police burst into his room are capable of being explained other than by a finding that he knew that what he had just done was morally wrong. I agree.
People say "sorry" for all sorts of reasons without meaning to convey an acknowledgement that they have just done something morally wrong. It is apparent that Ms G's demeanour when challenging the accused was, appropriately of course, one which had a level of aggression in it and many people would respond to such a challenge by apologising in order to calm things down.
False denials of wrongdoing to police can also be explained by the circumstance that the accused must have realised that he was being alleged to have done something which was legally wrong. The accused relies as well on the circumstance that his denial of having ever examined a patient is clearly wrong and could be easily disproved by an inspection of his medical records.
Dr O'Dea, correctly, emphasises the importance of determining whether the accused's reactions to being challenged by Ms E's mother demonstrated an understanding of legal or moral wrongfulness. He was not prepared to say that it is more likely than not that the accused's reaction showed that he knew that what he had done was morally wrong.
As the accused emphasises, Dr O'Dea's opinion was based on an examination of, amongst other matters, the complainants' descriptions of what the accused did. There are some features of their accounts which Dr O'Dea found, as do I, support the accused being mentally ill at the time of such consultations. As far as Ms Yis concerned, the accused's actions created a real risk of infection, and she described him as "rambling" during the consultation, a description which Dr O'Dea said was often a colloquial term for the more psychiatric expression "pressure of speech".
Dr O'Dea was more forgiving of Ms E being referred for an ultrasound of her neck despite making no complaint of any problem in that area of her body, but given that both Ms Ed and her mother gave evidence that the complaint was of abdominal pain, that the accused ordered an ultrasound of her neck tends, in my opinion, to suggest at least some level of disordered thought.
The same can be said about the way the accused examined Ms D on two separate occasions during the one consultation. While Dr O'Dea wouldn't immediately regard that as "particularly unusual or problematic" it certainly was something that Ms D found unusual and again it tends to suggest disordered thought. In addition Ms D referred to the accused raising his voice during the consultation, suggesting, at least, inappropriate impatience with her.
And of course there is all the undoubtedly bizarre behaviour displayed by the accused over the relevant time, set out above at [263] - [272] when discussing the issue of voluntariness. Many descriptions of his behaviour given by those who worked with him included erratic moods, ranting, and running his practice in a chaotic manner are consistent with the accused suffering from bipolar affective disorder.
There is thus a great deal of support for Dr O'Dea's opinion that the accused's bipolar affective disorder was a severe one and that he had suffered from that condition for some considerable time including of course the period over which these alleged offences occurred.
Finally, there is the obvious consideration that these allegations were made against the accused after many years as a doctor without any such complaint being made against him. As I have already noted, although correlation does not equate with causation, the fact remains that his otherwise criminal behaviour began at around the time he was diagnosed with diabetes, an illness which exacerbates bipolar affective disorder, which illness led to him being scheduled after his arrest.
The Crown submits that the accused has not overcome the burden of proving on the balance of probabilities that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his sexual behaviour towards his patients. It asks me to reject the opinion of Dr O'Dea that "he may tilt over into … on balance, satisfying the M'Naghten rules" on the basis of the second limb to the M'Naghten test. I should only do what the Crown asks me to if the only expert opinion offered was contradicted by other persuasive evidence.
Although the burden of proof is on the accused it is of course relevant in deciding whether the accused has proved on the balance of probabilities that he was mentally ill to consider whether the Crown has made good any of its challenges to Dr O'Dea's ultimate opinion. None of the assumptions made by Dr O'Dea have been shown to be false. He has, at least in his second time in the witness box, demonstrated that his opinion is based on the correct legal test. He has considered all the available evidence and brought expertise which I do not have to the relevant issues. True it is that his opinion was one expressed with caveats, but it remained the only expert opinion which I have before me. His opinion explains why the accused would do what he did after many years practise as a doctor without a similar complaint being made against him. That explanation is more likely than any alternative explanation. I accept Dr O'Dea's opinion.
I am satisfied on the balance of probabilities that at the time of all of the counts the accused suffered from Bipolar Affective Disorder. I accept that it is probable that at the time of all of the counts that the accused was in the manic phase of that disorder, and finally I am satisfied on the balance of probabilities that as a result of his mental illness, the accused was not able to reason with a moderate degree of composure.
The answer to Question 6 is thus "yes".

[43]

Question Trail - Sexual Intercourse Counts 1. Has the Crown proved beyond reasonable doubt that the accused had sexual intercourse with the particular complainant? Relevantly to this trial "sexual intercourse" includes the penetration, to any extent, of the complainant's genitals or anus by the accused's finger. Fortunately anatomy and authority (see R v Cha [2012] NSWCCA 142) coincide so that if the accused touched or rubbed a complainant's clitoris that would amount to an act of penetration of the complainant's genitals and thus meet the definition of sexual intercourse. If the answer to that question is "no" the accused is entitled to be acquitted. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that the complainant did not consent to that act of sexual intercourse? The relevant complainant would have consented to the sexual intercourse if she freely and voluntarily agreed to the sexual intercourse occurring. If the answer to that question is "no" the accused is entitled to be acquitted. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that at the time of the sexual intercourse took place the relevant complainant was under the authority of the accused? If the answer to that question is "no" the accused is entitled to be acquitted of the charge on the indictment, but may be guilty of the non-aggravated form of the offence which requires me to consider the next question. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that the physical actions of the accused which constituted the act of sexual intercourse were voluntary that is, the product of a willed act? If the answer to that question is "no" I need to consider question 5. If the answer to that question is "yes" I need to consider question 6. 1. Am I satisfied on the balance of probabilities that the failure of the Crown to prove that the actions of the accused were voluntary was because he was suffering from a disease of the mind? If the answer to that question is "yes" the accused is not guilty on the grounds of mental illness, If the answer to that question is "no" the accused is not guilty. 1. Has the accused proved on the balance of probabilities that as a result of a defect of reason from a disease of the mind either: 1. he did not understand the nature and quality of his physical act or; 2. he was not able to reason with a moderate degree of composure as to the wrongfulness of his conduct? If "yes" the accused is not guilty on the grounds of mental illness. If "no" I should move on to the next question. 1. Has the Crown proved beyond reasonable doubt either:

The accused knew that the complainant was not consenting to sexual intercourse, or
He realised that there was a possibility that the complainant was not consenting to sexual intercourse but he went ahead anyway, or
He didn't even think about whether the complainant was consenting to sexual intercourse, not caring whether she was consenting or not, or
He had no reasonable grounds for any belief that the complainant was consenting to sexual intercourse. In deciding whether the Crown has proved this final element I must consider all the circumstances of the case including any steps taken by the accused to ascertain whether the relevant complainant consented to the sexual intercourse. If the answer to this question is "yes" the accused is guilty of either the charge on the indictment or the alternative depending in my answer to Q3. If the answer to this question is "no" the accused is not guilty.

[44]

Question Trail - Indecent Assault Count 1. Has the Crown proved beyond reasonable doubt that the accused touched the complainant on her pubic area in a way which was indecent? The word "indecent" means contrary to the ordinary standards of respectable people in this community. If the answer to that question is "no" the accused is entitled to be acquitted. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that the complainant did not consent to being touched in that way? The complainant would have consented if she freely and voluntarily agreed to being touched in that way by the accused. If the answer to that question is "no" the accused is entitled to be acquitted. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that at the time of the touching the complainant was under the authority of the accused? If the answer to that question is "no" the accused is entitled to be acquitted of the charge on the indictment, but may be guilty of the non-aggravated form of the offence which requires me to consider the next question. If the answer to that question is "yes" I need to consider the next question. 1. Has the Crown proved beyond reasonable doubt that the physical actions of the accused which constituted the act of touching were voluntary that is, the product of a willed act? If the answer to that question is "no" I need to consider question 5. If the answer to that question is "yes" I need to consider question 6. 1. Am I satisfied on the balance of probabilities that the failure of the Crown to prove that the actions of the accused were voluntary was because he was suffering from a disease of the mind? If the answer to that question is "yes" the accused is not guilty on the grounds of mental illness, If the answer to that question is "no" the accused is not guilty. 1. Has the accused proved on the balance of probabilities that as a result of a defect of reason from a disease of the mind either: 1. he did not understand the nature and quality of his act or; 2. he was not able to reason with a moderate degree of composure as to the wrongfulness of his conduct? If "yes" the accused is not guilty on the grounds of mental illness. If "no" I should move on to the next question. 1. Has the Crown proved beyond reasonable doubt either: The accused knew that the complainant was not consenting to being touched on the pubic area, or He realised that there was a possibility that the complainant was not consenting to being touched on the pubic area but he went ahead anyway, or He didn't even think about whether the complainant was consenting to being touched on the pubic area, not caring whether she was consenting or not? In deciding whether the Crown has proved this final element I must consider all the circumstances of the case including any steps taken by the accused to ascertain whether the relevant complainant consented to the sexual intercourse. If the answer to this question is "yes" the accused is guilty of either the charge on the indictment or the alternative depending in my answer to Q3. If the answer to this question is "no" the accused is not guilty.

R v El-Kheir

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Judgment (45 paragraphs)

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Cases Cited (9)

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