//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] NSWCCA 32
Court of Criminal Appeal (NSW)
2023-11-27
Davies J, Button J, Weinstein J
Original judgment source is linked above.
Background Between 1 May and 11 July 2023, GAT (a pseudonym adopted due to the nature of these proceedings pursuant to s 111(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act); the respondent) stood trial before Judge Wass SC and a jury. The indictment contained 40 counts comprising sexual offences contrary to the Crimes Act 1900 (NSW), alleged to have been committed by the respondent against 19 different adult women. The first date in the indictment is 1 January 1993, and the last date is 1 July 2015. Some of the counts were based upon sexual intercourse without consent, and some of them upon indecent assault (now known as sexual touching). All of them were said to have been committed by the respondent while he was working as a gynaecologist and obstetrician in a regional centre of New South Wales. Each of the complainants alleged that an offence, or offences, had been committed when she had consulted the respondent in his professional rooms as his patient. Finally, all offences were alleged to have been committed when the complainant was under the authority of the respondent, arising from the doctor/patient relationship.
Elements of counts
No evidence of mental element of complainants?
No evidence of mental element of respondent?
Conclusion on verdicts by direction
Parameters of the appeal creating provision?
A ground that involves a question of law alone?
New trial to be ordered?
Orders
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2024
R
GAT
HEADNOTE [This headnote is not to be read as part of the judgment] On 1 May 2023, the respondent GAT (a pseudonym) was arraigned in the District Court of NSW on a 40 count indictment alleging aggravated sexual offences committed against 19 complainants. At the time of the alleged offending, the respondent was a practising obstetrician and gynaecologist. It was the Crown case that the respondent had used his position as a medical professional opportunistically, and without consent, to sexually penetrate and/or indecently assault the 19 female patients that visited him to receive medical procedures and examinations. The respondent appeared unrepresented at trial, and presented his defence case on the basis that the physical acts had either been performed for a proper medical purpose, or that they had not occurred at all. The majority of the complainants were not called by the Crown to give evidence in Court; oral evidence was received by way of recordings taken during a discontinued trial against the same respondent in 2021. Following the closure of the Crown case and the respondent giving evidence, the learned trial judge invited submissions from both parties as to whether the Crown had presented any case to answer, having regard to her Honour's view that the Crown failed to adduce evidence from any complainant as to whether she would not have consented to the physical acts committed by the respondent had she known he was assertedly seeking sexual gratification. On 7 July 2023, the trial judge indicated that she would direct the jury to return verdicts of not guilty on all counts. Three days later, a 55-page judgment was delivered, setting out her Honour's reasons for the directed verdicts of acquittal and the decision not to allow the Crown to re-open its case and further question the complainants. It was stated that there was no evidence of lack of consent on the part of any complainant. Separately, the Crown had failed to explicitly put to the respondent that he had possessed a necessary mental element for any of the alleged offences. The jury subsequently delivered verdicts of not guilty to each count. The Crown sought leave to appeal against each of the directed verdicts, pursuant to s 107 Crimes (Appeal and Review) Act 2001 (NSW). Four grounds of appeal were relied on, each said to be based on a proposed question of law alone. Grounds one and two argued that the trial judge erred by directing verdicts of acquittal for the alleged offences on the basis that there was no evidence that the complainant had not consented to the sexual intercourse which constituted the offence in each case. Grounds three and four alleged that the trial judge erred in directing acquittals on the basis that there was no evidence that the accused knew that the complainants did not consent. The Court held, allowing the appeal, quashing all verdicts of acquittal, and ordering new trials on all counts (Button J, with Davies and Weinstein JJ agreeing): As to grounds one and two: 1. It is trite law that, for a verdict of acquittal to be directed, a trial judge must come to the view that there is no evidence whatsoever of an essential element of the offence. The question in this case, therefore, was whether there was any evidence whatsoever that the complainants were not consenting to the alleged sexual offending: [49]-[52]. Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, referred to. 1. The absence of direct evidence from each complainant about their state of mind at the time of the alleged offence is not determinative: [53]. 2. Evidence as to each complainant's lack of consent could be readily inferred. Regarding counts in which proper medical purpose was in issue, there was some evidence on each count that each complainant was mistaken in the belief that the penetration or touching was for medical or hygienic purposes and was thereby giving superficial consent only. Regarding counts in which the issue of proper medical purpose did not arise, there was some evidence of lack of consent on the part of each complainant: [55]-[63]. 3. It was an error for the trial judge to find that explicit evidence was required from each complainant that, if they had known that the physical act was not for a medical purpose, they would not have consented to it: [65]. 4. It was an error for verdicts of acquittal to have been directed on this basis: [69]. As to grounds three and four: 1. Following on from the concession made by senior counsel for the respondent that the approach taken by her Honour was erroneous, it was found that there was some evidence that the respondent at least foresaw the possibility that each complainant was not consenting to his alleged actions. Regarding counts in which the issue of proper medical purpose had arisen, there was evidence that the respondent knew or at the least foresaw the possibility that no complainant was consenting to anything other than a procedure undertaken for medical purposes. Regarding counts in which the issue of proper medical purpose did not arise, there was evidence that the respondent foresaw the possibility that a complainant who was seeing him as a patient in a professional medical context was not consenting to such things as being kissed on the lips: [72]-[75]. 2. In the circumstances of the trial, it was clear that the Crown case was, from the beginning, that the respondent was aware that none of the complainants were giving true consent to any physical contact outside that made for a proper medical purpose. Any failing on the part of the Crown prosecutor could have been corrected in a moment, by the simple expedient of the respondent being briefly recalled: [76]-[78]. 3. It was an error for verdicts of acquittal to have been directed on this basis as well: [80]. As to whether the errors fall within the parameters of s 107: 1. The statutory requirement for the grounds to involve "a question of law alone" self-evidently rules out an appeal based on question of mixed fact and law. It is more restrictive than the simpler formulation of "a question of law", though the word "involves" is contrastingly broader and more inclusive than other such prepositions: [82]-[87]. Regina v JS [2007] NSWCCA 272, applied. 1. The decision to direct a verdict of acquittal has two distinct phases: first, the correct identification of all of the elements of the offence in question, whether created by statute or common law; and second, the consideration of the evidence, and whether there is some evidence, however weak, in support of each element. The first is quintessentially a question of law alone. The second is a mixed question of law and fact: [92]. Regina v JS [2007] NSWCCA 272; R v DB [2022] NSWCCA 87 at [127]-[130] (Wilson J), considered. 1. In this appeal, grounds one and two were found to fall within the above taxonomy as involving a question of law alone. 2. The proposed grounds three and four involved a readily severable question of law alone about the purported legal consequences to a party of an asserted failure of that party to comply with a legal rule of practice: [96]-[97]. As to whether a new trial should be ordered: 1. Though submissions for the respondent resisting a new trial were said to have significant force, the fact that the issue of whether the Crown had proven each count beyond reasonable doubt should have been left to the jury overwhelmingly countervailed, in the circumstances of this case, any argument against quashing the acquittals: [103]-[118]. 2. The interests of justice would not permit the legally erroneous acquittals to stand: [118].
[2020] NSWCCA 138
(1984) 155 CLR 21
(1990) 171 CLR 207
(2021) 271 CLR 351
(1957) 98 CLR 249
(1987) 48 SASR 269
(1993) 29 NSWLR 696
(1986) 161 CLR 278
(1994) 35 NSWLR 74