Reeves v R; R v Reeves

Reeves v R; R v Reeves - [2013] NSWCCA 34 - NSWCCA 2012 case summary — Zoe

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(a) The Crown opening 12The Crown opened to the jury that on 24 June 2002 the complainant consulted her general practitioner, Dr Salisbury, and asked her to look at a white patch of skin on her vulva. Following a biopsy, Dr Salisbury told her that the pathology revealed a condition called Vulval Intraepithelial Neoplasia Grade 3 ("VIN 3"). The Crown told the jury that whilst Dr Salisbury said to the complainant it was a cancerous condition, the evidence from gynaecological cancer experts would be that it was in fact pre-cancerous. The Crown stated that Dr Salisbury referred the complainant to the applicant and that the complainant's evidence would be that the applicant suggested surgery to remove the lesion, that he drew a diagram for her to show the extent of the surgery and told her that it was a relatively minor procedure and only a small flap of skin would be removed. The Crown stated that her evidence would be that although she signed a consent form stating the operation was a simple vulvectomy, at no stage was she told what that was or that it involved taking other than a small flap of skin. 13The Crown stated that the complainant would give evidence that whilst she was lying on the operating table, just before she was rendered unconscious, the applicant came over to her and put his face quite close to hers and said quietly "I'm going to take your clitoris too". 14The Crown also opened to the effect that a Nurse Demmery, who was present at the operation, said to the applicant "you wouldn't be taking my clitoris no matter what", and the applicant replied "It doesn't matter. Her husband's dead anyway". The Crown stated that the operation which took place involved the removal of almost the whole of her genitalia including her labia majora, labia minora, her clitoris and her perineum. The Crown also stated that the evidence would demonstrate that pathology tests taken subsequent to the operation showed no invasive malignancy and that apart from the discrete lesion the rest of the vulva from all the samples looked at was unremarkable and normal. 15The Crown opened that expert medical evidence which would be led would demonstrate that the operation was quite unnecessary. 16The Crown Prosecutor summarised the Crown case in the following terms: "It's the Crown's case that this did not have to be such a massively and permanently disfiguring operation. The accused didn't have Mrs De Waegenaire's consent to perform such a radical operation. She at no time was told of the amount of tissue that was to be taken and she was given to believe that it was a small lesion that it would simply be cut out. She was never told to expect the complete excision of her vulva. She was never told of any of the consequences sexually or in every day life from the complete loss of the structures of her genitalia. She didn't expect it. She didn't give her informed consent ... and the Crown of course contends that it was never necessary for the accused to perform the radical and disfiguring surgery in circumstances where there was only a small lesion and it was never conveyed to Mrs De Waegenaire that so much was going to - that this entire area of her body would be removed." 17The Crown also indicated during the course of the opening, that it would contend that notes prepared by the applicant, which recorded additional dystrophy or abnormality of the complainant's vulva were in fact fabricated to include the extra areas as an explanation as to why the applicant took so much tissue from the complainant. The Crown said it would be contending that the notes were inconsistent with a letter to Dr Salisbury written after the operation referring to only one area of VIN 3, the operation report filled out by the applicant after the operation and the pathology reports obtained after the operation.

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(c) The evidence led by the Crown at trial 20The complainant in chief gave evidence broadly consistent with the manner in which the case was opened by the Crown. She said that the applicant told her that he would excise the lesion and he drew a diagram saying it was a simple operation. She also stated the applicant said that the operation was a simple vulvectomy which was going to excise the lesion not explaining the meaning of the term simple vulvectomy. 21The complainant said that the applicant did not mention her clitoris nor discuss her capacity for orgasm following the surgery although he stated she could have intercourse after the scars healed up "although it would feel different" because "she would be minus one flap of skin on one side". 22The complainant denied that she was given a diagram showing the extent of the excision which was in fact performed. She denied that the applicant told her that she was a "ticking time bomb" or that she appeared to have "some dystrophy possibly lichen sclerosus et atrophicus". 23The complainant also gave evidence that immediately before she went under the anaesthetic the applicant leaned over to her and said "I'm going to take your clitoris too". She gave evidence that the applicant never mentioned taking her clitoris before and that she would never have walked in through the hospital door to start with had she been told that that was what was intended. 24The complainant acknowledged she did not complain to anyone about the extent of the operation, either to the hospital staff or to the applicant during the time she was an inpatient at the hospital, that she subsequently visited the applicant to have her stitches removed and that she first complained to the police in April 2008. 25Nurse Demmery gave evidence that during the course of the operation she noticed what she thought was a large piece of tissue being removed and commented to the applicant that it was fairly radical to which he replied "Yes if I didn't take that much the cancer would spread". She also gave evidence that when she said to him "you wouldn't be taking my clitoris no matter what", he said the patient's husband was dead so it did not matter anyway. 26Dr Salisbury, the complainant's general practitioner, gave evidence that the applicant did not inform her, in his letter of 5 July 2002 reporting on the consultation, or at any other time, of any other area of disease on the complainant's vulva besides the VIN 3. She stated that she did not recall any signs of, or make any note of, dystrophy or of lichen sclerosus being present on examination. 27Two pathologists were called by the Crown, Dr Edwards who microscopically examined a specimen taken from the complainant by the applicant and concluded there was no other abnormality of the specimen apart from the VIN 3, including the clitoris. Nor, he concluded, was there any lichen sclerosus. The other pathologist, Dr Jain, reached the following conclusion: "There was high grade dysplasia or high grade abnormality in the vulva skin which was completed excised... the cells had not transgressed the basement membrane or the junction between the first layer and the second layer - it had not gone into the second layer, so it is not an invasive malignancy." He also noted that the remaining vulva was unremarkable; that means it showed no abnormalities. He stated he saw no evidence of lichen sclerosus. 28Three gynaecological oncologists, Dr Davy, Dr Dalrymple and Professor Hacker, gave evidence that the extensive surgery performed was not appropriate for the presentation of a single lesion. Two practising gynaecologists, Dr Pesce and Professor Korda, gave evidence to the effect that efforts were made to preserve the clitoris and if it had to be removed the implications would need to be discussed with the patient. Each of these doctors indicated that they believed the surgery was excessive. Professor Hacker acknowledged that if there was genuine multifocal disease he would not have been too critical of the operation. He stated that one would still ideally try to preserve the clitoris but that was more problematic if there was a significant multifocal disease. He acknowledged that in an earlier trial he had given evidence to the effect that if a patient in fact had lichen sclerosus it might be something to consider, but there was no evidence that the complainant had it. 29This relatively brief summary of the Crown case indicates that the focus of the evidence led was directed to the issues of consent, whether the operation was necessary for the patient's welfare and the applicant's honest belief in such.

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(d) The evidence of the applicant 30The applicant did not give evidence at the trial but his evidence at a previous trial on the same issues was tendered by consent. 31In his evidence in chief at that trial he said that after taking a history from the complainant he conducted a thorough examination of the complainant using his colposcope as a vulvoscope. He said that the complainant's vulva, without magnification, showed changes of quite a degree of thinning and reddening in the vulval area which is equivalent to dystrophy. He pointed out that he labelled it DYS in his notes, which he said meant dystrophic. He explained that meant abnormal growth or appearance. He stated it was also known as lichen sclerosus et atrophicus, which is sinister when localised on the vulva, as in combination with VIN 3 it made it more likely that invasive cancer would occur later on. 32The applicant stated that he explained to the complainant with the aid of two diagrams that what he saw was pre-cancerous and that she did not have any signs of invasion at the time. He said he explained what was involved in the operation, indicating that both the labia minora and the majora would be removed. He stated that after that explanation she indicated she did not want to travel to Sydney or Melbourne to have it treated and that she wanted it dealt with in one go. He said he told her that the only option was to do a simple vulvectomy to remove the dystrophic changes. 33The applicant stated that the complainant took the diagram on which he had explained the operation with her when she left the consultation. For the purpose of his evidence he sought to reproduce the diagram which was tendered. He explained that the first part of the diagram showed a dotted line which was the area of excision and the second part showed the area closed indicating vertical and lateral extension. He said the purpose of the second drawing below the first (which he said was included in the diagram given to the complainant) was to give some indication of what her genitals would look like after the procedure. 34The applicant stated that he believed at the time the complainant understood exactly what he told her of the procedure and that she also understood the diagrams and what they meant. He stated that there was no discussion about the excision of the clitoris but it was marked on the diagram. 35The applicant stated that his belief was that the complainant understood what was implied by the term "simple vulvectomy" and that he never said to her that only a small flap of skin would be excised. He denied that he told the complainant shortly before she became unconscious that he was going to take her clitoris too. He also denied the conversation which Nurse Demmery said had occurred, although he said that he may have mentioned that her husband was dead. 36He stated that he believed that a simple vulvectomy was the appropriate treatment. He said he knew the condition of vulval dystrophy and dysplasia to be commonly multifocal, which he said meant that the conditions were in more than one site at one time and in more than one degree in one area. He said he knew that recurrence did not occur at the site of the local excision but tended to occur in other areas of the vulva, so he felt the optimal treatment was to remove as much abnormal epithetting or abnormal skin as he was safely able to do. He reiterated that he described the procedure to the complainant and drew a sketch of it, indicating what it was called and what it was going to do. He reiterated that although he did not specify the clitoris he did in fact draw it on the diagram and that it was within the dotted area. 37In cross-examination he denied the proposition that "simple vulvectomy was not the treatment for anything today or in 2002". He acknowledged that the pathology disclosed no lichen et sclerosus but stated that it did not follow that the complainant had no dystrophy, as dystrophy was a clinical appearance found on clinical examination by both the naked eye and magnification and indicates abnormal appearance. 38The applicant acknowledged that if the VIN 3 was localised it was possible simply to do a few wide local excisions. 39In cross-examination the applicant stated that he had told the complainant she had a dystrophic vulva and that the VIN 3 seemed to be localised. He agreed that patients would not know what a dystrophic vulva was and that he could not recall defining the term. He also agreed that a sizeable portion of the community do not use the term vulva when it comes to describing women's genitalia. 40The applicant denied that the pathology taken after the operation did not support the operation performed. He said the use of the pathology was to exclude much more sinister problems but it was a random exercise in sampling and you cannot be sure that the whole of the specimen was examined. He acknowledged that in his report to Dr Salisbury he should have referred to the areas of dystrophy which he claimed to have seen, but stated that he did not. He also made no mention of this in his operation report or on the consent form to the operation which was signed by the complainant. 41It was put to the applicant that when he came to know in 2005 that concerns had been raised about his surgery he added a bit more "DYS" in his notes in order to justify the surgery. He denied the proposition, asserting "she had clinical features of a dystrophy on both sides of the vulva and VIN 3 on the left side". 42The applicant acknowledged that he knew that the optimum treatment for a unifocal VIN 3 was a local excision, but stated that it was not the optimum treatment for a multifocal VIN 3. It was put to him again, and he denied, that his clinical notes were fabricated and he also rejected the proposition that he did not show the complainant a diagram. He stated that he told the complainant that he was going to remove the abnormal skin, that she had a dystrophic vulva and he was going to remove all the abnormal skin. He reiterated his view that the operation was appropriate. 43In cross-examination the applicant initially agreed that excision of the clitoris would be a horrific prospect for any woman although he stated not for all women. He said when he drew the diagram for the complainant there was a discussion about intercourse and that he told her she would look different and it would feel different but intercourse would be possible. He acknowledged again that at no time did he mention removal of the clitoris to the complainant, although he said it was encompassed by the diagram. He said the fact that he did not mention the clitoris was a criticism he could not retract from. He said he did not discuss orgasm with her but accepted that it was not possible without a clitoris. He acknowledged that it was part of his role to talk about sexual function after any operation he might perform because it was an integral part of a human being's health. 44He accepted that he did not tell the complainant she would be grossly mutilated by the surgery. 45In cross-examination the applicant again denied the conversation alleged by the complainant to have taken place immediately prior to her succumbing to the anaesthetic. He also said that he could not recall the conversation alleged by Nurse Demmery. 46Towards the conclusion of his cross-examination the applicant was asked whether he accepted that he had not obtained the complainant's informed consent. He stated that retrospectively from the testimony of the complainant it appeared that that was the case but prospectively he believed he had. 47The applicant acknowledged that he did not explain to her that after surgery she would have difficulty with the process of urination and accepted that the loss of the vulva is a very difficult thing for women to incorporate into their self-image. He denied that he did not care about psychosexual problems the complainant may suffer as a result of the surgery or disruption to her sexual function. 48The cross-examination was lengthy and with respect somewhat repetitive. However it focused on the following issues: (a) Whether the complainant gave her consent to the operation? (b) In that context, whether the complainant received the diagrams which the applicant said explained the extent of the operation? (c) Whether the conversations alleged to have taken place in the operating theatre occurred? (d) Whether there was necessity for the extensive operation? (e) In that context, whether the applicant believed that the complainant had lichen sclerosus and whether he made the entry "DYS" on his notes when he realised that complaints were being made about the operation.

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(g) The written directions to the jury 56The written directions to the jury explained the elements of the offence charged in a manner which was uncontroversial and then proceeded to deal with what was described as the question of lawful cause or excuse. The written directions stated that it was for the Crown to prove that the accused had no lawful cause or excuse and that there would be lawful cause or excuse if the applicant performed a lawful surgical operation on the patient, honestly believing at the time: (a) That he did so with her informed consent. (b) That the operation was proper surgery for the patient's benefit. 57The direction continued in the following terms: "There will not be 'lawful cause or excuse' for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation, including the removal of the labia and clitoris; Furthermore there will not be 'lawful cause or excuse' if the Crown proves beyond reasonable doubt that at the time of the operation the accused did not honestly believe that the surgery (to the full extent he performed it, including removal of the labia and clitoris) was proper surgery for the patient's benefit. What Does 'Informed Consent' Mean? As a matter of law, any person has a right to his or her bodily integrity. In the context of this case, the law says that medical surgery cannot be performed on an adult person except with the voluntary and informed consent of the patient. 'Consent' means 'agreement'. Consent may be in writing, or spoken, so long as it is voluntarily given. To be valid, consent must be 'informed'. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation, and any options or alternative treatments which may be reasonably available. The explanation must be given at a time when the patient is conscious. If the patient is affected by drugs or anaesthesia, a purported consent at that time may be invalid if the patient cannot understand it. An explanation given in merely technical medical language may also fail to lead to valid consent, because the patient does not understand it or is misled by it. The purpose of the consent procedure is to inform the patient and to obtain the patient's agreement to what is performed. If the explanation is not communicated adequately, by clear writing and/or words, the meaning of which she can grasp, the patient may not understand the explanation, or a vital part of it. If so, it cannot be said that there is 'informed consent'."

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(h) The trial judge's summing-up 58The trial judge commenced his summing-up by reference to his written directions. He referred to the evidence from Professor Hacker and other witnesses that the excision of the clitoris in particular can have a severe psychosexual impact upon a person and that a proven mental or psychological trauma which is a direct result of this (the surgical removal) can be described in law as bodily harm or injury. He stated that it was not in dispute that the surgery was done by a registered doctor. He also stated it was not in dispute that the surgery was done with technical competence. 59The trial judge then dealt with lawful cause and excuse. He repeated twice what he said in his written directions and then proceeded to explain consent in the following terms: "As a matter of law, any person has a right to his or her bodily integrity. In the context of this case, the law says that medical surgery cannot be performed on an adult person, except with voluntary and informed consent of the patient. 'Consent' means agreement. Consent may be in writing or spoken, so long as it is voluntarily given. To be valid, consent must be informed. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation and any options or alternative treatments which may be reasonably available. The explanation must be given at a time when the patient is conscious. If the patient is affected by drugs or anaesthesia, a purported consent at that time may be invalid if the patient cannot understand it. An explanation given in merely technical language, may also fail to lead to valid consent, because the patient does not understand it, or is misled by it. The purpose of the consent procedure is to inform the patient and to obtain the patient's agreement to what is proposed. If the explanation is not communicated adequately by clear writing and/or words the meaning of which she can grasp, the patient may not understand the explanation or a vital part of it. If so, it cannot be said that there is informed consent." 60The trial judge then proceeded to sum-up the evidence given at the trial in a manner which was uncontroversial. 61During the course of their deliberations the jury asked a question in the following terms: "On page 6 of the Directions of Law a definition of informed consent is given. Are we to assume that this is the literal definition of informed consent by which the accused is to be judged for his actions relating to the operation he carried out in August 2002." The trial judge answered that question in the following terms: "Now the answer to that question is yes. But when you read the material on page 6 relating to informed consent you should also bear in mind what is on page 5 under Lawful Cause or Excuse. That is to say the Crown must prove both the absence of informed consent from the perspective of the patient and as well it must rule out beyond reasonable doubt an honest belief by the accused that there was informed consent at the time of the operation. Is that clear? Let me take it a little further then. If you go back to page 5 let me take you through that material again. Lawful Cause of Excuse. The accused cannot be found guilty in this trial on any charge unless you are satisfied beyond reasonable doubt that the accused had no lawful cause or excuse for what he did. The law says that doctors can have a lawful cause or excuse to perform surgical operations which might not [sic] otherwise be criminal acts if carried out by persons other than qualified doctors. An issue arises here as to whether the accused had as a medical practitioner a lawful cause or excuse. Now let me just explain there. The issue arises here because the accused has said in his evidence and through his counsel 'I honestly believed I was doing the right thing, if I have made a mistake about whether she consented it was an honest mistake'. So this issue arises as to whether there was a lawful cause or excuse. It is for the Crown to prove that the accused had no lawful cause or excuse towards the bottom of the page the second last paragraph is what we are dealing with here. There will not be lawful cause or excuse for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris. Now what appears on page 6 about informed consent is how you judge whether or not there was informed consent. But you read that in the light of the other directions about lawful cause or excuse."

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The applicant's submissions 62In his written submissions the applicant pointed to the fact that the Crown's case was that the surgery was unnecessary and that this was put in three different ways. He noted that the first way the Crown put its case was that the applicant was motivated by spite; the second was that the applicant did not honestly believe the surgery was necessary for the patient's benefit; and the third was that he did not have the informed consent of the complainant and did not honestly believe he had her informed consent. The applicant referred to the remarks on sentence of the trial judge which, it was said, rejected the first two bases. The trial judge stated that "he [the applicant] failed in his important duty as a surgeon to discuss with the patient the full scope of what he intended to do" and "the sense in which he intended to inflict grievous bodily harm was that he performed the excessive operation knowing that he was doing so without proper informed consent to the removal of the labia and clitoris". 63The applicant submitted that as the trial was conducted, the issue was reduced to a consideration of the nature of informed consent and a doctor's duty to inform the patient. He submitted that the jury was misdirected in a fundamental way, being directed in terms of the law of negligence. He submitted that the approach that was appropriate was clearly reflected by what was said by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490: "The consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed." 64The applicant submitted that the direction given was erroneous because it gave rise to the possibility that he would be convicted for failing to properly inform the complainant in accordance with common law duties under the law of negligence. He made five specific complaints: (i) The introduction of the concept of informed consent was dangerous in the context of a criminal trial where the issue was whether a doctor performing surgery had lawful excuse to commit the act giving rise to the charge. (ii) The jury was invited to judge whether the applicant had communicated adequately. (iii) The jury was directed that if the applicant had not communicated adequately it cannot be said there was informed consent. (iv) The jury was invited to make judgments as to what constituted "major consequences" of the operation and what "alternative treatments" were "reasonably available" in order to determine whether the complainant ought to have been informed of those things in the context of whether there was informed consent. (v) The directions may have been appropriate in a civil action for negligence but they were not appropriate to a criminal trial for an offence of violence requiring proof of a specific intent. 65The applicant gave one example of the difficulty that he submitted emerged from the direction. He submitted that taking the definition of informed consent literally, the duty may have included explaining that a possible consequence of the operation was puddling of urine on urination and that a failure to so advise may have meant that informed consent was not provided and/or the applicant did not have an honest belief on that question. At the hearing senior counsel for the applicant submitted that having regard to the direction the jury was entitled to find that that was a possible major consequence of the operation and that the applicant had not advised her and therefore not obtained informed consent. Ultimately the applicant submitted that an appropriate direction would be in terms directed to the following propositions:

Consent and lawful excuse are established if the patient is advised in broad terms of the nature of the procedure to be performed.
However, if information is withheld in bad faith, the consent will be vitiated by fraud. 66At the hearing senior counsel for the applicant submitted that there was a real risk, having regard to the direction, that the applicant was convicted on the basis he was a bad doctor or a bad communicator. He acknowledged that there would be no complaint had the direction been that the jury had to be satisfied beyond reasonable doubt that the complainant was not told anything about the extent of the surgery to be performed and she did not consent to it. Senior counsel for the applicant submitted however that the Crown at the trial had put the consequences of the operation squarely in issue. 67Senior counsel for the applicant properly conceded that if the only explanation for the verdict of the jury was that the complainant did not consent to the operation which took place or that the applicant did not honestly believe that this was the case, then the appeal would fail. He submitted, however, that this was not the single issue before the jury, saying that in addition there was the question as to whether or not the complainant had lichen sclerosus, whether the applicant told her of his opinion in that respect and whether he warned her of the consequences to her sex life and the consequences concerning urination.

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Consideration - The directions 72There is little authority in this country as to the appropriate direction to be given to a jury on the issue of consent in what might be described as medical assault cases. However, as the applicant pointed out, in Rogers v Whitaker supra, the High Court drew a clear distinction between liability in a claim for negligence for failure to advise of risks inherent in a medical procedure and liability for the offence of battery. 73In Rogers v Whitaker, the High Court held that the law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk being material if in the circumstances of the particular case a reasonable person, in the position of the patient, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is, or should be, reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker at 490. 74The High Court declined to adopt the approach suggested in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, to the effect that a medical practitioner is not negligent if he or she acts in accordance with the practice accepted by a responsible body of medical opinion and the extension of this principle to a failure to warn of risks by the majority of the House of Lords in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871. However, the Court emphasised that its conclusions were not directed to the issue of whether or not a medical practitioner would be liable in trespass because of the absence of consent to a particular procedure. In that context the plurality made the following remarks: "In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as 'the patient's right of self-determination' or even the oft-used and somewhat amorphous phrase 'informed consent'. The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase 'informed consent' is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed. In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term 'informed consent'." [Citations omitted] 75In reaching this conclusion the Court cited the judgment of Bristow J in Chatterton v Gerson [1981] 1 QB 432 with apparent approval. In that case Bristow J stated the consent necessary to defend a claim in trespass in the following terms: "In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass." 76In the judgment of the Court of Appeal in Sidaway [1984] 1 QB 493, each member of the Court adopted a similar approach (see at 511 per Donaldson MR, 515 per Dunn LJ and 518 per Browne-Wilkinson LJ. See also Freeman v Home Office [1984] 1 QB 524 at 537). 77The comments of their Lordships in each of these cases were consistent with what was said by the High Court in Rogers v Whitaker in the passage cited above. 78In Rogers v Whitaker the Court also cited with approval the decision of the Supreme Court of Canada in Reibl v Hughes [1980] 2 SCR 880. In that case the applicant at trial obtained damages in both battery and negligence for his surgeon's failure to advise him of the risk of paralysis following an operation. The applicant was ultimately successful on appeal but only on the issue of negligence. 79In the course of his judgment Laskin CJ, with whom the other members of the Court agreed, emphasised that the failure to disclose risks involved in a surgical procedure did not vitiate consent for the purpose of a claim in trespass. His Lordship also warned of the dangers of the use of the term informed consent, making the following remarks: "In my opinion, these findings do not justify the imposition of liability for battery. The popularization of the term 'informed consent' for what is, in essence, a duty of disclosure of certain risks of surgery or therapy appears to have had some influence in the retention of battery as a ground of liability, even in cases where there was express consent to such treatment and the surgeon or therapist did not go beyond that to which consent was given. It would be better to abandon the term when it tends to confuse battery and negligence." (at [9]) 80His Lordship also suggested that actions in battery should be confined to cases where no consent to the procedure was given by the patient or where the consent was obtained by fraud or misrepresentation. In that context his Lordship stated the position as follows: "The well-known statement of Cardozo J. in Schloendorff v. Society of New York Hospital, at pp. 129-30 and at p. 93 respectively, that 'every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages' cannot be taken beyond the compass of its words to support an action of battery where there has been consent to the very surgical procedure carried out upon a patient but there has been a breach of the duty of disclosure of attendant risks. In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent. This standard would comprehend cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out." (at [11]-[12]) And "I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the duty of due care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent." (at [13]) 81These cases, in my opinion, make it clear that a failure to explain to a patient the possible risks involved in a procedure, however material, will not lead to the conclusion of an absence of consent for the purpose of criminal proceedings or the tort of trespass. 82It should be accepted that consent requires more than mere formalistic acquiescence to the proposed medical procedure. In order for a patient to be taken to have consented they must have been informed, in broad terms, of the nature of the procedure, in terms which they have understood: Mulloy v Hop Sang [1935] 1 WWR 714 at [1]. Merely having the patient sign a consent form for example, is insufficient: Chatterton supra at 443. Further, it is uncontroversial that a patient's consent only extends to the medical procedure explained to them. This includes the physical act to be undertaken and the extent of interference with the body proposed. If some other medical procedure other than that agreed to is performed, or the treatment or procedure goes beyond what is consented to, then there has been no relevant consent: Chatterton supra at 443; Mulloy v Hop Sang supra at [2]; Winn v Alexander [1940] O.W.N. 238; Reibl v Hughes supra at [11]-[12]. 83The reasoning in Rogers v Whitaker, Chatterton v Gerson and Reibl v Hughes has not, to my knowledge, been challenged in this country, the United Kingdom or Canada. In Appleton v Garrett [1996] PIQR P1, Dyson J, as his Lordship then was, quoted with approval the judgment of Bristow J in Chatterton v Gerson supra, endorsing the proposition that once a plaintiff is informed in broad terms of the nature of the procedure which is intended and gives her consent, the consent is real unless information is withheld in bad faith or the consent is vitiated by fraud ([1996] PIQR P1 at 3). His Lordship did not elaborate what he meant by withholding information in bad faith but his remarks were made in the context of a factual finding that the defendant dentist deliberately withheld information from his patients that the treatment he proposed was unnecessary because he knew they would not have consented had they known the true position. In that context, irrespective of the issue of consent, criminal liability would arise because the Crown would be able to establish beyond reasonable doubt that the dentist did not honestly believe that the operation was proper surgery for the patient's benefit. 84In McDonald v Ludwig [2007] QSC 28, Muir J, whilst citing the passage in Rogers v Whitaker supra to which I have referred, held that consent to a procedure for a specific purpose did not operate as a consent to perform the same or similar acts for a different or unrelated purpose (see [2007] QSC 28 at [88]). It is not necessary in the present case to consider whether that statement is correct in the context of criminal proceedings. 85Once it is accepted that consent is not vitiated by a failure to disclose risks inherent in the procedure it follows in my view that a failure to explain alternative treatments would not operate to vitiate consent. That is because decisions as to which treatment option is most appropriate are generally based on a consideration and weighing of the relative risks of alternative treatments. Further, a doctor's obligation to choose between alternative treatments is fundamentally bound up with a medical practitioner's professional duty of treatment and diagnosis. It is quite distinct from the obligation to provide information, to which the question of consent relates: Richards v Rahilly [2005] NSWSC 352 at [223]-[235]; Eagle v Prosser [1999] NSWCA 166. Whether or not such a failure could amount to a breach of a duty of care such as to give rise to a liability in negligence (see Eagle v Prosser supra at [36]-[38]; Richards v Rahilly supra at [230]-[231]), such a failure would not vitiate consent for the purpose of criminal liability. 86In these circumstances, any direction to the jury on this issue should be to the effect that the accused will not be guilty of assault unless the Crown proves beyond reasonable doubt that the complainant has not consented to the nature and extent of the procedure and that the doctor does not honestly believe that she has so consented. The only exception is where consent is vitiated by fraud or misrepresentation. Expressions such as "informed consent" or "real consent" should be avoided as, in my opinion, they tend to obscure the difference between criminal and civil liability in this area. 87In the present case it is not necessary to decide the difficult question whether consent to the nature of the procedure can be given in circumstances where the patient is not aware of the inevitable consequences of the procedure as distinct from potential risks associated with it. (See Somerville "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740.) In many cases such consequences will be readily apparent but there will be cases where they are not. As no argument was directed to this issue, it is unnecessary to express any view on it. 88It follows, in my opinion, that the trial judge misdirected the jury both in his written directions, orally and in answering the question posed by the jury in the course of their deliberations. I have set out the directions earlier in this judgment (see pars [56]-[61] above). The initial part of the direction, namely "there will not be lawful cause or excuse for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris", may not have constituted a misdirection although the word "informed" tends to obscure the issue. However, the reference in the definition of informed consent to the requirement of an explanation of the possible major consequences of the operation and of any options of alternative treatment which may be reasonably available potentially had the consequence that the jury could convict on the basis that, although the complainant was informed of the nature of the operation, she was not informed of the risks or alternative treatment and that in those circumstances the Crown had established beyond reasonable doubt that the applicant did not honestly believe he had obtained the complainant's consent. The same difficulty arises with the oral direction and the answer to the question asked by the jury. 89It follows that unless this is an appropriate case for the operation of the proviso, there should be a retrial.

[14]

Consideration - The operation of the proviso 90The operation of the proviso in s 6(1) of the Act can only lead to the dismissal of the appeal if the Court is satisfied that no substantial miscarriage of justice has actually occurred. As was pointed out by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [43]-[44] and in subsequent cases, there is no universal description or criteria for determining what constitutes a miscarriage of justice: see also Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at [17]. However, as was also pointed out in Weiss, it is a necessary but not necessarily a sufficient condition that the Court is persuaded that the evidence properly admitted at trial proves the accused's guilt beyond reasonable doubt: see Weiss supra at [44]. See also Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 86 ALJR 459 at [27]-[29]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [124]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [53]; Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [41]-[42]; Cooper v The Queen [2012] HCA 50 at [20]-[21]. 91In considering whether the evidence proves the guilt of the applicant beyond reasonable doubt, the Court proceeds on the same basis as when it is invited to set aside a jury verdict on the grounds that it is unreasonable. The Court must make its own assessment of the evidence and determine, making due allowance for the limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, whether the accused was proved beyond reasonable doubt to be guilty of the offence charged: Weiss supra at [41]; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at [84]. 92In the present case I am satisfied beyond reasonable doubt that the applicant was guilty of the offence charged. There is no doubt he performed the operation which resulted in the removal of the complainant's genitalia including her labia and clitoris. Consistently with what appears to be the basis of the remarks of the sentencing judge, I am prepared to assume that the Crown failed to prove beyond reasonable doubt that the applicant did not honestly believe that the surgery was proper surgery for the patient's benefit. That only leaves the question of whether the Crown failed to prove beyond reasonable doubt that the applicant honestly believed that the complainant consented to an operation involving the removal of her labia and clitoris. 93I am satisfied, taking into account the limitations in dealing with the matter on the record, that the applicant did not have such an honest belief. First, there is the evidence of the complainant to which I have referred, to the effect that she did not consent to the operation which was performed upon her and in particular she did not consent to the removal of her labia and clitoris. As pointed out above (see par [20]) her evidence was that he told her that he would excise the lesion. Her evidence of the remark made to her by the applicant immediately prior to the operation, "I'm going to take your clitoris too" (see par [23] above) is consistent with the complainant not previously having been told of that fact. If this evidence is accepted, there is no basis for concluding that the applicant had an honest belief that there was consent to the operation. 94The applicant acknowledged that he did not tell her at any time that he was going to remove her clitoris, although he insisted it was marked on the diagram which he gave her (see pars [36], [43] above). The complainant denied receipt of the diagram. 95Importantly, the applicant acknowledged in his evidence that the appropriate treatment for unifocal VIN 3 was a local excision (see pars [38], [42] above). His justification for the operation was that on examining the complainant he had detected dystrophy or lichen sclerosus. If this was in fact the condition observed by him, it was, both on his own evidence and on the evidence of Professor Hacker, a serious matter and it is inconceivable that it would not have been reflected in the applicant's report to the complainant's general practitioner, in his operation notes, or on the consent form he caused the complainant to sign. However, there was no reference to it on any of these documents. Further, the pathology reports provided no evidence of the condition. 96The only evidence to the contrary is a note "DYS" on notes produced by the applicant. Having regard to the other evidence to which I have referred, I am satisfied that that is not what the applicant observed on examination. 97Once it is concluded that the applicant was untruthful in stating the extent of the disease he observed in examination, there is no reason to doubt the complainant's evidence as to the explanation she was given and her denial of receipt of a diagram showing the extent of the operation which was performed. The explanation of the extent of the operation given to her was consistent with what on the evidence was necessary for an operation on a person with her condition. Even if it is accepted that the Crown had failed to prove beyond reasonable doubt that the applicant did not have an honest belief as to the necessity of the operation, that is no reason in the circumstances of this case to doubt the complainant's version of what she had been told or her denial of the receipt of a diagram showing the extent of the operation. In those circumstances I am satisfied to the requisite standard that the applicant did not have an honest belief that the complainant had consented to the nature and extent of the operation. 98I am conscious in reaching this conclusion that the complainant did not complain for a considerable period after the time of her operation, her first complaint to the police being in April 2008. She admitted she could have complained earlier. Whilst this is of course relevant in considering the complainant's evidence, it does not cause me to alter the view I have expressed above particularly having regard to the objective evidence of the report to the general practitioner, the operation notes and the absence of any reason for the operation as evidenced by the pathology reports. 99In these circumstances I am persuaded that the evidence led at the trial proved the offence beyond reasonable doubt. 100Nor am I of the view that the direction resulted in the applicant being deprived of a real chance of acquittal. Although the Crown declined to rely on r 4 of the Criminal Appeal Rules it is of significance that no objection was taken to the direction by experienced counsel at the trial: See Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 at [77]. 101The applicant's submission on this issue is summarised in par [64] above. In summary it was submitted that the jury could have convicted on what was essentially inadequate communication, or on the basis that informed consent was not given in circumstances where the complainant was not informed of alternative treatment or the risks involved in the operation. 102I do not believe that this is correct. Having regard to the way the case was conducted and the opening and closing addresses, what was clearly put in issue on the question of consent was whether the complainant had consented to the procedure undertaken rather than a relatively minor surgical procedure. The evidence given by experts as to the appropriate treatment was not directed to alternative treatments which may have been available and discussed, but rather to whether the applicant could have believed the operation was for the benefit of the complainant. There was some limited cross-examination on possible consequences and there was a reference in the closing address of the Crown to the fact that the complainant was not told of the difficulty she may have in urination subsequent to the operation, but it does not seem to me that that cross-examination or that reference would lead to a real likelihood that the jury convicted on the grounds that although the complainant was informed of the nature and extent of the operation, she was not informed that subsequent to it she would have difficulties in urination. 103Further, although in his answer to the question from the jury the trial judge reiterated his definition of informed consent, he did so by reference to the earlier part of his written direction and repeated that there would not be lawful cause or excuse for the surgery performed if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation including removal of the labia and clitoris. The trial judge thus recognised the area which issue had been joined by the parties and directed the jury to that particular issue. 104In those circumstances, in my opinion, the applicant did not lose a reasonable chance of acquittal. 105Further, I do not consider that there was an error so fundamental that there is no room for the operation of the proviso. It is not a case where the trial was so flawed that this Court is deprived of the capacity of assessing whether or not the applicant may have lost a fair chance of acquittal: See Cesan supra at [81]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [6]. Nor are there any other circumstances in the present case which lead to the conclusion that there was such a departure from a fair trial according to law that it is inappropriate for that reason alone not to apply the proviso: Wilde v The Queen (1988) 164 CLR 365 at 373; Nudd supra at [6]; Darkan supra at [94]. 106It follows, in my opinion, that in the circumstances of the present case leave to appeal should be granted, the proviso applied and the appeal against conviction dismissed.

[16]

Crown appeal against sentence 108I agree with the conclusions of Hall J and his reasons for those conclusions. 109HALL J: I agree with the reasons for judgment and the orders proposed by Bathurst CJ and R A Hulme J in relation to the applications for leave to appeal against conviction. The following is my judgment on the Crown appeal against the sentences imposed upon Mr Reeves who I will refer to as "the respondent". 110The Director of Public Prosecutions appeals to this Court pursuant to s 5D(1) of the Criminal Appeal Act 1912 in respect of sentences imposed by the Sydney District Court on 1 July 2011. 111The Director initially relied upon a Notice of Appeal filed on 18 July 2011. 112A second Notice of Appeal was filed on 6 October 2011 which was served upon the respondent on 7 October 2011. 113Particulars of the offences charged, the sentences imposed and the maximum penalties in respect of each of the offences were summarised in the Crown's Written Submissions as follows: OFFENCE SENTENCE IMPOSED MAXIMUM PENALTY (a) Obtain benefit by deception from Southern Area Health Service (between 1.12.01-11.7.03). Imprisonment for 1 year commencing 1/6/11 and expiring 31/5/12. 5 years imprisonment Section 178BA Crimes Act 1900 (b) Aggravated indecent assaults (victim under the authority of the offender) x 2 (victims [CA] on 21.2.03 & [RF] on 2.5.03). Imprisonment for 18 months on each count, to be served concurrently, commencing 1/12/11 and expiring 31/5/13. 7 years, SNPP 5 years Section 61M Crimes Act 1900 (c) Maliciously Inflict Grievous Bodily Harm with Intent (victim Carolyn De Waegeneire on 8.8.02). Non parole period imprisonment for 1 year (expiring 31/5/13), with a parole period 1 year 6 months expiring 30/11/14.Eligible for release to parole on expiration of NPP. 25 years, no SNPP Section 33 Crimes Act 1900

[17]

114The total effective sentence accordingly was a term of imprisonment of 3 years and 6 months, comprising a non-parole period of 2 years and a balance of term of 1 year and 6 months. Accordingly the respondent is eligible for release to parole on 31 May 2013. 115The respondent entered a guilty plea to the offence under s 178BA Crimes Act 1900 ("obtain benefit by deception"), was tried and convicted by a jury in respect of the offence under s 33 of the Crimes Act 1900 ("maliciously inflict grievous bodily harm") and was convicted in a judge alone trial in respect of the two offences under s 61M of the Crimes Act 1900 ("aggravated indecent assault"). The Crown submissions summarised the position as follows: "(1) The respondent pleaded guilty to the 'obtain benefit by deception' charge on 8 February 2011, such deception being that he represented that he was entitled to perform the clinical practice of obstetrics, and the advantage was the appointment to the position of VMO Obstetrician and Gynaecologist at Bega and Pambula District Hospital; (2) The respondent was convicted by a jury on the 'maliciously inflict grievous bodily harm' charge on 10 March 2011, being the medically unnecessary surgical removal of the patient's labia majora, labia minora, clitoris and perineum, of the patient referred to as Ms De Waegeneire on 8 August 2002; and (3) The respondent was convicted by the trial judge, his Honour Woods DCJ, of the 'indecent assault' charges on 14 April 2011, each being the unnecessary touching of the clitoris of the patient during two separate medical examinations on 21 February 2003 and 2 May 2003." 116The Director relied upon six grounds of appeal in the following terms: "(1) His Honour erred in his characterisation of the grievous bodily harm offence and imposed a sentence that is manifestly inadequate. (2) His Honour erred by failing to fix a non-parole period for each of the offences of aggravated indecent assault under authority contrary to s 61M(1) Crimes Act 1900 given a standard non-parole period has been prescribed. (3) On each of the offences of aggravated indecent assault under authority contrary to s 61M(1) Crimes Act 1900, his Honour imposed a sentence that is manifestly inadequate. (4) His Honour imposed a sentence for the obtain benefit by deception offence that is manifestly inadequate. (5) His Honour erred by imposing sentences which were manifestly inadequate by reason of his undue emphasis on the Respondent's asserted depression. (6) His Honour erred in failing to adequately accumulate the sentences, leading to a manifestly inadequate total sentence and manifestly inadequate total non-parole period." 117In relation to ground (6) the Crown submitted that the way in which the sentencing judge structured the sentences itself manifests sentencing error. The effect of that error, it was contended, contributed to the manifest inadequacy of the total or aggregate sentence. 118In its Written Submissions at [33], the Crown observed that the non-parole period fixed by the sentence imposed for the 'grievous bodily harm offence', namely a period of 12 months, was subsumed within the sentences imposed for the two indecent assault offences which themselves were concurrent with each other (commencing 1 December 2011 and expiring on 31 May 2013). The latter two offences, the Crown observed, were unrelated indecent assault offences. Finally, it was noted that a period of only 6 months was solely referrable to the 'obtain benefit by deception' offence: Crown Written Submissions at [34]. 119I will shortly turn to consider each ground of appeal below.

[18]

Summary of Subjective Factors 120The learned sentencing judge referred to a number of subjective matters in the course of his sentencing remarks. They included the following evidence and findings: The respondent was born in 1950. He excelled academically both at high school and at university, graduating with honours. His initial practice as a specialist in obstetrics and gynaecology was considerably successful. Up until the early 1990's he had done much valuable medical work, helping mothers and families in crises and had saved lives: ROS 23. At some point in the early 1990's the respondent suffered a breakdown involving a major depressive illness. Dr Stella Dalton, his treating psychiatrist, referred to him experiencing a personality change which was apparent both at home and at work from the onset of the illness in 1991: ROS 22. In 1997 the Professional Standards Committee of the NSW Medical Board ("PSC") upheld a number of complaints about the respondent's work as an obstetrician and gynaecologist in the early 1990's. The complaints concerned both the quality of his work and the manner in which he communicated (or failed to communicate) with patients: ROS 3. The PSC found not only unsatisfactory professional conduct but also that the respondent was "impaired" in his mental capacity to practice medicine by reason of personality and relationship problems, and depression: ROS 8 The PSC ordered that the respondent cease the clinical practice of obstetrics, whilst permitting him to continue to work as a gynaecologist under various conditions including working under supervision, continuing in psychiatric treatment and taking appropriate medication: ROS 9. The respondent continued to consult his treating psychiatrist, Dr Stella Dalton. When he found his professional and family life in Sydney too difficult he moved to Bega and set up practice as a gynaecologist: ROS 9. The evidence of the respondent's wife was that notwithstanding the move to Bega, the stress he was under in his working environment was just as bad, if not worse, than it had been in Sydney: ROS 12. The respondent became beset by his own medical problems in the late 1990's. He experienced a urinary problem requiring emergency surgery which resulted in impotency. He was diagnosed with insulin dependant diabetes. He experienced some difficulty with his sight: ROS 12. The respondent was forced into bankruptcy in 1999 and he separated from his wife, who was left with their children, around 1999 to 2000: ROS 23. The respondent had shown no contrition for his misconduct: ROS 12. He had no previous convictions. This would be his first prison sentence and would almost certainly be served wholly in isolation: ROS 24.

[20]

Findings on Sentence 121In accordance with authority it is the duty of a sentencing judge, following a guilty verdict by a jury at trial, to determine the facts relevant to sentencing. Some facts will have emerged in evidence at the trial whilst others may only emerge in the course of the sentencing proceedings: R v Isaacs (1997) 41 NSWLR 374 at 377-378. In Cheung v The Queen (2001) 209 CLR 1 at 1011, the High Court (Gleeson CJ, Gummow and Hayne JJ), in relation to the verdict of a jury, observed: "On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing the offender's culpability, and the proper measure of punishment. There are many cases involving a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing the offender's culpability is more difficult than that of determining his or her guilt." 122The High Court in Cheung, supra at 1213, approved the summary of principles as stated by this Court in Isaacs, supra, that included: "3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ..." 123The High Court then observed (at 14): "... the required consistency is with the verdict, ie the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is expressed, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict."

[21]

(i) Crown Submissions 124In relation to the offence of maliciously inflict grievous bodily harm with intent under s 33 of the Crimes Act (the most serious of the offences with which the respondent was charged), the Crown submitted that the learned sentencing judge fell into error in the following respects: (1) That the respondent was sentenced upon the basis that he did not deliberately intend to perform an unnecessary and unjustified operation, but believed wrongly, but honestly, that he should perform it. The Crown contended that this finding was inconsistent with the verdict of the jury (see below) with the result that the assessment of the objective seriousness of the offence and the respondent's moral culpability was undertaken on an erroneous basis. (2) That undue regard was given by the sentencing judge to the applicant's subjective case and the asserted mitigating effect of severe illness with the result that the sentence for the offence failed to reflect its objective seriousness. 125For the reasons shortly to be discussed, I do not consider the first of these two submissions should be accepted. The second submission should be accepted to the extent discussed below. 126In both the written and oral directions given at trial, the jury were told that in respect of the offence charged under s 33 of the Crimes Act there were five elements all of which the Crown had to prove beyond reasonable doubt before a guilty verdict could be returned. The constituent elements of the offence were identified as follows: (1) On 8 August 2002 at Pambula in the state of New South Wales (2) did maliciously (3) inflict grievous bodily harm upon Caroline De Waegeneire (4) with intent to do grievous bodily harm (5) without lawful cause or excuse. 127The written directions given to the jury (p 5) entitled "Lawful Cause or Excuse" recorded the following: "... there would be 'lawful cause or excuse' for what the accused did if, in his role as a medical practitioner, the accused performed a lawful surgical operation upon the patient, honestly believing at that time (a) that he did so with her informed consent, and (b) that the operation was proper surgery for the patient's benefit. It will be obvious to you that most surgery performed by medical practitioners is perfectly legal. Normally it is done with the informed consent of the patient and in good faith for the benefit of the patient's health. However in this case I direct you that: There will not be 'lawful cause or excuse' for the surgery performed by the accused if the Crown proves beyond reasonable doubt that the accused did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation, including removal of the labia and clitoris; Furthermore there will not be 'lawful cause or excuse' if the Crown proves beyond reasonable doubt that at the time of the operation the accused did not honestly believe that the surgery (to the full extent he performed it, including removal of the labia and the clitoris) was proper surgery for the patient's benefit." (Emphasis added). 128After the jury retired, the jury sent a note asking for clarification of the definition of "informed consent". 129In responding to the note the trial judge reminded the jury of what was set out in the written directions including in particular what was stated at p 5 in relation to "lawful cause or excuse". 130The jury returned shortly thereafter and delivered their verdict of guilty. 131The sentencing judge observed: "... there was extensive expert evidence before the court, undisputed save by the offender himself, that the very extensive surgery conducted was not necessary and should have been avoided. I am not satisfied beyond reasonable doubt that the offender deliberately intended to perform an unnecessary and unjustified operation. It is possible he believed, wrongly but honestly, that he should perform the operation as he did in order to eradicate any possibility that the potential cancer could become malignant and invasive. The sense in which he intended to inflict grievous bodily harm was that he performed the excessive operation knowing that he was doing so without proper informed consent to the removal of the labia and clitoris." Remarks on Sentence at 13-14. 132The Crown submissions noted that the sentencing judge made findings as follows: (1) That the respondent failed in his important duty as a surgeon to discuss with the patient (the complainant) the full scope of what he intended to do. (2) There was extensive medical expert evidence (undisputed except by the respondent) that established that the very extensive surgery conducted was not necessary and should have been avoided. (3) The medical evidence established that the extensive surgery undertaken was not appropriate surgical practice. (4) The criminality of the respondent's conduct was: "... in the intentional performance of the operation to the extent that it was performed without the informed consent of the patient. This amounts to the intention to inflict grievous bodily harm." ROS p 14. (5) That in the operating theatre and just before the complainant became unconscious from the anaesthetic, the respondent said to her "I'm going to take your clitoris too." The sentencing judge interpreted and concluded that these words indicated that at that point the respondent gave some passing thought to the issue of consent: ROS at p 15, rather than being evidence of malice (see paragraph [136] below). (6) The respondent must, however, have been aware all along of the need for fully informed consent but that he ignored it: ROS at p 15. (7) The complainant suffered grievous bodily harm both in the sense of "really serious bodily injury" but also in the sense that it caused her much emotional grief and continued to do so: ROS at p 16. (8) The surgery undertaken had resulted in damage which had given rise to ongoing difficulties and discomfort. (9) The surgery was "grossly excessive": ROS at p 16. The sentencing judge, however, observed that "... the necessity for some surgery is undisputed.": ROS at p 16. 133The Crown acknowledged that it was a matter for the sentencing judge to form his own view of the facts so long as that view did not conflict with the jury's verdict: Savvas v The Queen (1995) 183 CLR 1 at 8. However, the Crown submitted that the sentencing judge made a finding that was not consistent with the verdict of the jury: "[47] Consistent with his Honour's directions (and in accordance with the law) and upon which no complaint was made, to convict, the jury has unanimously determined that the Crown had established beyond reasonable doubt that the accused did not honestly believe that the surgery was proper surgery for the patient's benefit. [48] His Honour, by sentencing on the effective basis that the respondent did not deliberately intend to perform the unnecessary and unjustified operation but believed wrongly but honestly, that he should perform the operation, characterised the respondent's acts as mere mistaken judgment. That is inconsistent with the verdict of the jury, with the result that the assessment of the objective seriousness of the offence and the respondent's moral culpability was undertaken on an erroneous basis." 134As noted above, the Crown submission was that the sentence imposed failed to reflect the objective seriousness of the offence (ground 5). 135The Crown submitted that, properly viewed, the offence was one of "peculiar wickedness", aggravated by the fact that it involved a significant breach of trust (not an element of the offence): Crown Written Submissions at [52]. It was additionally submitted that the offence was further aggravated by the fact that it resulted in substantial harm, over and above what would be involved in an offence contrary to s 33. This appeared to have been recognised by the sentencing judge (at ROS p 16) yet in the result, the Crown contended, this factor was not reflected in the sentence imposed. 136In relation to the words which the complainant said were spoken to her in the operating theatre "I'm going to take your clitoris too", the sentencing judge made a finding to the effect that those words were not to be considered to be evidence of malice but, as earlier noted, an indication that the respondent gave some passing thought to the issue of consent. The Crown observed, that the sentencing judge's determination in respect of those words completely ignored the fact that the respondent denied uttering them, the defence position being that there would be no point in trying to obtain consent from a drug affected person. The Crown contended: "Those words were, it is submitted evidence of malice and the respondent's sinister attitude towards the complainant." Crown Written Submissions at [53]. 137Apart from the physical damage inflicted by the respondent, the Crown submissions gave emphasis to the psychological harm inflicted upon the complainant which included post-traumatic stress in response to the offence and excruciating pain suffered by her over several months following the procedure with continued problems urinating. The Crown further submitted: "The respondent improperly and maliciously removed all the external genitalia of the victim without her consent, at a time when she was completely vulnerable and causing the complainant, his patient, substantial physical and emotional harm. Consistent with the jury verdict, that he did so, was not the result of any honest mistake." Crown Written Submissions at [55]. 138The Crown noted that the respondent had shown no contrition. 139The Crown also submitted, as earlier noted, that the manifest inadequacy in the sentence imposed also resulted from undue regard being given to the respondent's subjective case and, in particular, what was determined to have been the mitigating effects of severe mental illness. 140Whilst the Crown acknowledged that the respondent may have suffered a depressive illness for which he had been medicated for many years, it submitted: "... it was not the cause of this offending ...": Crown Written Submissions at [56]. 141The Crown contended that a sentence greater than one consisting of a non-parole period of 12 months with an additional term of 18 months was required to reflect the criminality in what was described as an objectively very serious offence of its kind. 142On the issue of manifest inadequacy the Crown submission was that by reason of the complete concurrency of the non-parole period of 12 months fixed for the offence under s 33 with the sentences imposed on the unrelated offences of aggravated acts of indecency, the respondent had not received an actual term of imprisonment that was referrable to the s 33 offence: Crown Written Submissions at [58].

[22]

(ii) Respondent's Submissions 143It was submitted for the respondent that the sentencing judge's opinion as to the objective criminality of the offence was properly balanced. It was noted: (a) That whilst the surgery was "grossly excessive", there was an undisputed need for some surgery. The pre-cancerous lesion, if left untreated, might in due course have led to premature death. The sentencing judge noted that that risk was removed although "at a great and damaging cost": ROS at p 16. (b) Whilst there was a dispute amongst the experts as to the extent of the excision required, no witness challenged the need for surgical excision to be carried out upon the victim's labia minora. 144It was submitted for the respondent that whilst the surgery that was conducted on the victim was "gruesome in its description, and in its permanent physical implications" it was not an unknown procedure: Respondent's Written Submissions at [35]. It was stated that although the appropriate treatment for the condition known as VIN 3 was outmoded by 2002, it had once been the surgery of choice. It was submitted that this would have played a significant part in the sentencing judge's finding that the respondent did not undertake the procedure maliciously, but rather, that he acted with an honest but mistaken belief that it was necessary: Respondent's Written Submissions at [35]. 145It was submitted that it was pure conjecture as to what course would have followed had the victim been treated more conservatively and the VIN 3 condition recurred. It is not known whether more extensive surgery may have been required in the future. 146In the written submissions for the respondent, it was contended that the Crown had put its case in three different ways, namely: (1) That it was suggested that the respondent was motivated by spite - that he did the surgery "wickedly" knowing the surgery was unnecessary and without the complainant's consent with the intent to cause her extensive harm, including the unnecessary removal of her clitoris: Respondent's Written Submissions at [18]. (2) That the respondent did not honestly believe that the surgery was necessary for the patient's benefit and that the procedure was outmoded and excessive given the medical condition that the patient presented with: at [19]. (3) That the respondent did not honestly believe that he performed the operation with the patient's "informed consent": at [20]. 147The sentencing judge, it was observed, rejected the first two of these three bases and his Honour explained the basis on which he found the respondent guilty. The Respondent's Written Submissions at [21] then extracted a passage from pp 13-15 of the Remarks on Sentence which is in the following terms: "Such extensive surgery had not previously been discussed with the patient. In consultation he had never used the word clitoris to her. He failed in his important duty as a surgeon to discuss with the patient the full scope of what he intended to do. The lady said in her evidence during the trial that if she had known in advance of the doctor's intention, she would have 'never have walked through that hospital door to start with, never.' This is entirely understandable. The clitoris is a critical part of the female sexual anatomy. There was extensive expert evidence before the court, undisputed save by the offender himself, that the very extensive surgery conducted was not necessary and should have been avoided. I am not satisfied beyond reasonable doubt that the offender deliberately intended to perform an unnecessary and unjustified operation. It is possible he believed, wrongly but honestly, that he should perform the operation as he did in order to eradicate any possibility that the potential cancer could become malignant and invasive. The sense in which he intended to inflict grievous bodily harm was that he performed the excessive operation knowing that he was doing so without proper informed consent to the removal of the labia and clitoris." (emphasis supplied by respondent) 148It was submitted for the respondent that this finding was consistent with the basis upon which the case was put to the jury: at [22]. 149It was argued that the significance of the directions given to the jury on the element of maliciousness became clear when the jury asked the question in which clarification was sought upon the definition of informed consent and the trial judge answered it and repeated his direction as earlier given. 150The submission for the respondent was that on the basis of the directions given it was open to the jury to convict upon the basis that the respondent had not obtained the "informed consent of the patient" as that consent had been explained to them: Respondent's Written Submissions at [26]. 151It was further argued that the sentencing judge appeared to have been influenced by the following matters: (a) The lack of evidence of motive to harm the victim; (b) The evidence tendered on sentence by the Crown in the form of findings made by the PSC following a complaint made in 1997. The complaint, it was argued, provided evidence of a previous failure to obtain written consent from the patient for a medical procedure and the criticism of the respondent's manner of communication with patients; and (c) The evidence, as discussed in the submissions, concerning comments alleged to have been made by the respondent to the victim in the moments prior to surgery, and to Nurse Demmery during the course of it. It was submitted: "... this evidence, his Honour found indicated a last minute consideration as to the consent to the extent of the procedure (in circumstances where consent could not be lawfully given): ROS at p 4 and ROS at p 14. 152The submission in relation to the sentencing findings was that the content of the directions as to lack of consent, and the nature of the question that was put by the jury in the course of deliberations (MFI 17) together indicate that: "... these findings were open to his Honour and were consistent with the jury's verdict." 153On the issue of consent, reliance was placed upon the respondent's evidence that he had given a diagram to the victim which explained the extent of the procedure, but which, the submissions noted, the complainant denied having received from him. It was acknowledged that the jury clearly accepted that the victim had not knowingly given her consent to the procedure despite her written and oral consent to undergoing a "simple vulvectomy". The sentencing judge accepted that the lack of consent was based on the failure by the respondent to explain what that description meant: Respondent's Written Submissions at [38]. 154It was also submitted that "... the unique factual context of this case makes it difficult to determine where this case fits in any identifiable range of sentences imposed in other s 33 cases.": Respondent's Written Submissions at [39]. The respondent disputed that the "substantial harm" could be said to be over and above what would be involved in an offence contrary to that section, given that an offence under that section could include brain damage. 155In relation to subjective matters it was submitted that his Honour gave appropriate consideration to all relevant factors, including punishment, deterrence, denunciation and the protection of the community. 156The sentencing judge had received evidence on the voir dire as to the vast array of media coverage that was claimed to have vilified and destroyed the reputation of the respondent. Evidence was given as to the impact that it had had upon him and his family. It was submitted that his Honour was entitled to consider the extent of media attention as a form of extra-curial punishment: Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593; Oudomvilay v R [2006] NSWCCA 275. 157Emphasis was given to the fact that the respondent is 60 years of age and had no prior criminal matters. In relation to the protection of the community it was noted that the respondent was deregistered in July 2004. He was charged on 10 September 2008 and held in custody until his release on bail on 9 October 2008. He had been prevented from practising medicine and all offences had taken place in the context of medical treatment. In those circumstances, it was said, there appeared very little likelihood of re-offending outside of the context of his original offending. 158It was submitted that the sentencing judge was entitled to take into account the hardship suffered by the respondent in custody, given his past period on remand, and his likely protective custody classification during his sentence. His mental health status had also appropriately been taken into account in determining the length of the overall sentence. 159There was evidence before the sentencing judge that prior to sentence the respondent had been in custody for 31 days during which he was placed in isolation due to his depressive illness and his perceived suicide risk. 160Reference was made to the JIRS statistics for offences under s 33 of the Crimes Act which showed that all offenders were dealt with by way of full-time custodial sentences, where a medium head sentence of 5 years was imposed (with an 80 per cent range falling between 30 months and 12 years). However, it was noted that all offenders within the seven cases to which the statistics related, other than the respondent, had previous offences upon their record. 161Finally it was submitted that offences under s 33 encompass a wide range of criminal behaviour. A table of sentences imposed for such offences was annexed to the written submissions for the respondent (Attachment "B"). It was submitted that the offence committed by the respondent did not fit within any of the serious types of offences incorporated in the table.

[23]

Consideration 162The offence with which the respondent was charged under s 33 of the Crimes Act 1900 was one brought under the section in the terms in which it was expressed prior to amendments thereto by the Crimes Amendment Act 2007. Prior to its amendment s 33 was in the following terms: "33 Wounding etc with intent to do bodily harm or resist arrest Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years." 163"Maliciously" was defined in s 5 to mean "5 Maliciously 'Maliciously' : Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 164The circumstances surrounding the offences charged under s 33 were unusual. Many, if not most, offences under that provision have involved violence, often in the context of a confrontation between offender and victim. The circumstances of the present case, involving a medical practitioner undertaking surgical treatment, requires particular attention to be given to the constituent elements of the offence in light of the relevant circumstances. 165It has been observed: "Surgery will usually lead to the infliction of grievous bodily harm, (that is 'really serious bodily harm'), and not merely actual bodily harm. Nonetheless surgery is necessary for the preservation of life and health. It is clear that surgery is lawful where it has been consented to and, further, is carried out by a qualified person in appropriate conditions and in a proper manner for legitimate medical purposes": Gillies, Criminal Law, 4th ed (1997), Thomson Reuters p 289. 166It has also been observed: "Surgery or medical procedures usually involve the infliction of actual or even grievous bodily harm on the patient. Nonetheless, a patient or one lawfully authorised to consent on his or her behalf can lawfully consent to the infliction of actual or grievous bodily harm resulting from such procedures." Waller & Williams, Criminal Law Text and Cases, 11th ed (2009) LexisNexis p 49. 167In R v Coleman (1990) 19 NSWLR 467, Hunt J (as his Honour then was) considered the provisions of s 5 of the Crimes Act as to "malice" in the context of a charge of maliciously inflict actual bodily harm with intent to have sexual intercourse. In relation to that provision, his Honour addressed categories of acts that are done with and without malice observing: "... on the other hand, an act done with intent to injure some person (which is one of the alternatives within the category of acts done without malice) does not by itself amount to an act done maliciously within that definition. An act done without malice but with intent to injure some person falls within that definition only if it were also done without lawful cause or excuse. That additional element is to meet the obvious case of, for example, the surgeon who necessarily (and intentionally) causes injury during an operation." At p 472. (Emphasis added) 168It was accordingly open to the jury to return a guilty verdict against the respondent if the evidence established: (1) That the surgery involved the infliction of grievous bodily harm; and (2) That the respondent deliberately, that is, intentionally, inflicted grievous bodily harm upon the complainant. 169It was not necessary, for the offence to be proved, for the Crown to also establish malice. Whilst there was a body of medical expert evidence that established that the operation was neither appropriate nor justifiable, there was evidence, which it was open to the jury to accept, that the respondent acted on a wrongful or misguided belief that the surgery undertaken by him was either necessary or justifiable. I have concluded that, on the evidence, the Crown case did not establish beyond reasonable doubt that the respondent acted with malice. It follows that the verdict of the jury is not to be taken as having been reached upon the basis of a finding of malicious intent. 170Plainly surgery can involve, and on the evidence in the present case did involve, the infliction of 'grievous bodily harm' meaning really serious bodily harm. The evidence also established, beyond reasonable doubt, that the respondent in undertaking surgery upon the complainant acted deliberately or intentionally in inflicting grievous bodily harm in the sense that the surgery undertaken necessarily produced that result. The evidence accordingly established, to the criminal standard, the specific intent to which s 33 was directed. Proof of both, grievous bodily harm and the specific intent to cause grievous bodily harm in circumstances where no proper consent had been given by the complainant to the respondent's knowledge, were sufficient to establish the commission of the offence charged under s 33. 171It follows that ground 1, insofar as it asserts error in the sentencing judge's characterisation of the offence under s 33, should be rejected. 172Ground 1 also asserts generally that the sentence for the s 33 offence is manifestly inadequate.

[24]

Was the Sentence Imposed Manifestly Inadequate? 173In determining the sentence to be imposed, the sentencing judge was, in my opinion, required in the assessment of the objective seriousness of the offence under s 33, to give appropriate weight to the following matters:

The radical and extensive nature of the surgery undertaken in circumstances in which the respondent knew that he did not have the consent of the complainant;
The extensive harm inflicted on the complainant in consequence of the surgery involving the removal effectively of all the external genitalia, including the labia majora, labia minora, clitoris and perineum;
The associated physical and emotional suffering resulting from the unauthorised surgery; and
The respondent's action in undertaking the surgery in circumstances involving a significant breach of the trust relationship between himself, as a medical practitioner, and the complainant, as his patient. 174The above matters, in my opinion, characterise the offence charged under s 33 as an objectively serious offence of a high order. The respondent did not, as he was bound to do, provide a clear explanation of the extensive and radical surgical procedure that he intended to carry out and did subsequently carry out. His failure to provide a proper explanation to the complainant, and his undertaking surgery without obtaining her consent, constituted a gross departure from accepted standards of surgical practice amounting to a grave offence. 175In assessing the objective seriousness of the offence the sentencing judge was required to proceed upon the basis that the jury's verdict implied that the respondent undertook the unauthorised surgery knowing that he did not have the complainant's consent to perform it. 176The evidence does not establish any significant mitigating factors. The sentencing judge had regard to observations made by the PSC in 1997 including the observations by Dr John Woodforde in 1996 as to the respondent's personality traits. As discussed above, only limited weight should have been given to the respondent's depression. Dr Dalton observed that in the period April 2002 and July 2004 the respondent's mood appeared stable and he had taken his medication (Zoloft 100Mg daily) on a regular basis. Dr Nielssen in his report of 14 June 2011 referred, inter alia, to the respondent's statement to him in the following terms: "... he reported that he was receiving treatment for his depressive illness at the time of those offences with a standard dose of antidepressant medication, sertraline 100mg per day, and did not feel especially depressed at that time. He denied the existence of any connection between his psychiatric disorder and his alleged behaviour while working at Bega." 177The sentencing judge addressed the question of the respondent's mental state in particular in relation to the issue as to whether he held the intention to perform a medically unjustified operation. Without referring to the history obtained by Dr Nielssen, his Honour stated: "... given his stressed mental state in 2002, and his overconfidence, I am not satisfied to the criminal standard that in his own mind he intended to perform a medically unjustified operation. His judgment during this period was unsound and was affected by major depression. He was able to convince himself that he was always right. As I say, the criminality of his conduct lies in the intentional performance of the operation to the extent that it was performed without the informed consent of the patient." ROS at p 14. (Emphasis added). 178I do not consider, for reasons earlier stated, that the evidence supported the proposition that the respondent's judgment in relation to the surgery undertaken by him on 8 August 2002 was affected by "major depression" in any direct causal sense. 179In addition to the respondent's depressive condition, a number of other factors have to be taken into account. These include the fact that the respondent, as at the date of the offence, was a first time offender. In addition, it is appropriate to bring into account his age (60 years as of the date of sentence) and that a term of imprisonment on a first offender of that age will weigh heavily upon him. In addition, the intensity of media scrutiny has impacted heavily upon the respondent's reputation. 180The respondent's deregistration as a medical practitioner in July 2004 in itself provided a safeguard for the protection of the community interest.

[25]

Conclusion on the Sentence Imposed 181As has been observed by the High Court, what reveals manifest inadequacy of sentence involves a consideration of all the matters that are relevant to fixing the sentence which, of course, includes the circumstances of the offending and the personal circumstances of the offender. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [60]. 182In relation to the offence under s 33, I have concluded that the sentence imposed by the sentencing judge was manifestly inadequate. 183This is not a case in which any specific error could be identified (as in the case where it can be demonstrated that a sentencing judge has acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect his or her decision, mistaken the facts or not taken into account some material considerations). In this appeal the Crown, in effect, contended that it was to be inferred from the result that there was a failure to properly exercise the discretion which the law reposes in the sentencing court. 184In Dinsdale v The Queen [2000] 202 CLR 321, Gleeson CJ and Hayne J stated at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or it is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive ... because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than the statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." See also Hili v The Queen, supra, at [59]. 185I have taken into account Attachment B to the Submissions for the respondent entitled "Sentences Imposed for s 33 Offences". I consider that the sentences referred to in that attachment are of limited assistance, given the highly unusual nature of the offence and the circumstances giving rise to it. 186I have concluded that the sentence imposed, 2 years 6 months with a non-parole period of 1 year, is manifestly inadequate. A consideration of all matters relevant to determining sentence, in my opinion, establishes that an appropriate sentence for the s 33 offence is a period of imprisonment of 4 years comprising a non-parole period of 2 years and a balance of term of 2 years. 187The respondent should be re-sentenced on the basis of a finding of special circumstances given in particular the requirement to appropriately accumulate the sentences to be imposed.

[27]

On each of the offences of aggravated indecent assault contrary to s 61M(1) Crimes Act 1900, his Honour imposed a sentence that is manifestly inadequate. 188The respondent appealed against the convictions in respect of offences of aggravated indecent assault entered against him. I have had the benefit of reading the reasons for judgment of R A Hulme J in draft. The Chief Justice and I agree and join in the orders proposed by his Honour dismissing the appeal in respect of the respondent's conviction for the aggravated indecent assault of CA but allowing the appeal in respect of the conviction for aggravated indecent assault of RF, quashing that conviction, and entering a verdict of acquittal. 189In relation to the offence concerning CA, the sentencing judge referred to his verdict and reasons in what had been a judge alone trial which reasons included in particular a finding that the length of time during which the contact with the clitoris occurred indicated that there was deliberate rubbing for the personal sexual satisfaction of the respondent. 190In his sentencing decision, his Honour stated: "This is a serious offence, shocking to the female patient and apt to undermine the confidence of women generally in medical practitioners. Given the importance of Pap smears in contributing to female health, conduct such as this needs to be marked by a significant penalty. The offender has shown no contrition." ROS at 18-19. 191His Honour later observed: "Why the doctor should have offended in this fashion is ultimately inexplicable. However, my best interpretation is that it reflected the continuance or recurrence of the problems which caused his breakdown during the 1990's, major clinical depression and a personality disorder of some kind. It may also be that the impotence resulting from his urinary disorder in 1997 had some causal role in his rash behaviour in cases 1 and 2. It is impossible for me to determine this and legally unnecessary." 192His Honour then turned to discuss in detail the subjective matters arising in respect of the aggravated indecent assaults. In that context his Honour referred to the evidence adduced including the reports of Drs Dalton and Nielssen (psychiatrists) (respectively Exhibits SB and SC).

[28]

Crown Submissions 193The Crown submissions were, understandably, directed to the sentences imposed in respect of both of the aggravated indecent assault convictions. Given the quashing of the conviction in respect of RF, I will refer to them as if they were directed only to the conviction in respect of CA. 194In relation to ground 2, the Crown referred to s 45(1) of the Crimes (Sentencing Procedure) Act 1999 which denies the discretion to not set a non-parole period in respect of offences for which there is prescribed a standard non-parole period. Aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, is such an offence. The Crown submitted that for this reason alone the sentence could not stand: Crown Written Submissions at [61]-[62]. 195The Crown referred to various passages in the sentencing remarks. These included findings by his Honour that CA was "in a highly vulnerable position" and that she trusted the respondent "to perform his professional duties and to advise her about matters of which she had limited or no understanding". 196It was accepted that the judge had correctly identified the matters relevant to sentence for this offence but the Crown contended that there was a failure to reflect such matters in the assessment of sentence. It was contended that the respondent's conduct was "grossly wrong, intolerable and deserving of denunciation" and that it served to undermine public confidence in the trust that can be placed in those carrying out gynaecological procedures: Crown Written Submissions at [66]. 197As in the case of the grievous bodily harm offence, it was the Crown submission that his Honour's assessment of sentence was diverted by undue regard being given to the respondent's subjective case and his finding that his depressive illness was causally connected (ground 5): Crown Written Submissions at [68]. 198The Crown submitted before his Honour, and repeated the submission in this Court, that the offence fell at the top of the range of objective seriousness. It was also noted that no mitigation was available on account of a plea of guilty or contrition. Punishment, deterrence, denunciation and protection of the community were said to be "central to the sentencing exercise": Crown Written Submissions at [69]-[71]. 199For the foregoing reasons, and mindful of the legislative guideposts of the maximum penalty of 7 years and the standard non-parole period of 5 years, the Crown submitted that the sentence was manifestly inadequate.

[30]

Conclusion on the Sentence Imposed 204The offence contrary to s 61M(1) of the Crimes Act 1900 in this case was a serious offence. Research by counsel failed to reveal other sentencing cases of the kind in question, that is to say, of cases involving aggravated indecent assault in the course of a medical examination. 205There is a case concerning an unaggravated indecent assault (and sexual intercourse without consent and attempted sexual intercourse without consent): R v Balakrishnan Arvind, (NSWCCA, 8 March 1996, unreported). It involved a GP who sucked the breasts, digitally penetrated and then tried to force fellatio upon a patient. The sentences imposed are of no guidance. However, Grove J, Hunt CJ at CL and Barr AJ agreeing, observed that the gravity of the offences was magnified by the breach of trust which the patient reposed in her doctor. He added: "The Court should enunciate that criminal interference with the bodies of persons seeking health care will be met with stern retribution. The present case exemplifies vulnerability of patients and taking advantage of that situation for self gratification attracts general and personal deterrent elements into appropriate sentence." 206On consideration of all matters that were relevant to determining the sentence for the offence in question, including in particular the subjective circumstances and that the circumstances of aggravation arise from the doctor-patient relationship, I do not consider that the sentence imposed is manifestly inadequate. 207Whilst the sentence may be considered to be a light sentence, I do not consider it to be so light as to constitute or reflect appellable error. It is clear that the sentencing judge did have regard to the relevant circumstances. On the question of specific deterrence the sentencing judge took into account, as his Honour was entitled to do, the fact that the respondent will not have future contact with patients, he having been deregistered as a medical practitioner. His Honour was also entitled to take into account the circumstances of the respondent's incarceration and that they are such as to impose an additional measure of hardship. 208I will resume the discussion of the sentence imposed for the offence under s 61M in respect of the victim CA and the related issue of concurrency and accumulation when considering the principle of totality in the context of ground 6 and the need to re-sentence as a consequence of ground 2.

[31]

His Honour imposed a sentence on the Benefit by Deception offence that is manifestly inadequate. 209The respondent entered a guilty plea to the charge on 8 February 2011. The facts relating to the offence were set out in an Agreed Statement of Facts, which became Exhibit S1 in the sentence proceedings. 210The facts therein set out may be summarised as follows: (1) In 1997 the Health Care Complaints Commission investigated complaints of nine former patients of the respondent and on 11 June 1997 the PSC found the respondent guilty of unsatisfactory professional conduct. (2) As noted above, the PSC ordered that he immediately cease the clinical practice of obstetrics. It also placed a number of conditions on the respondent in relation to his practice as a gynaecologist. (3) On 4 August 1997, the NSW Medical Board sent a letter to him advising that the order not to practise clinical obstetrics continued to apply subject to any order that may be made by the Medical Tribunal on a review application that lifted or varied the conditions. (4) During 1997/1998, the respondent made two requests to have this order varied to permit him to assist with caesarean sections. On both occasions, the applications to vary the order were refused. (5) At some time between December 2001 and January 2002, the respondent attended Bega Hospital enquiring as to the availability of work. That led in turn to an interview with the Deputy Director, Medical Services of the Southern Area Health Service (SAHS). (6) On his initial interview he made no mention of the fact that he was restricted from practising obstetrics. (7) The respondent was subsequently interviewed on 16 January 2002 by Dr Arthurson in which he was advised that a specialist was required to provide back-up to the local general practitioner obstetricians, rather than a specialist to take over the routine care of such patients. (8) The respondent stated that he had a major depressive illness and had been under treatment. He also disclosed that he had conditions placed on his medical registration. He did not state that he was prevented from practising obstetrics by order of the PSC. (9) On 10 February 2002, he submitted a written application for a position as Visiting Medical Officer at the hospital. On each occasion, he indicated that he was applying for the position as "Visiting Medical Officer, Gynaecologist". No reference was made in his letter to the order made that prevented him from practising clinical obstetrics. (10) On 2 April 2002, he was interviewed by the SAHS Medical and Dental Appointments Advisory Committee. He did not disclose the PSC order prohibiting him from practising clinical obstetrics. (11) He was initially offered a temporary "locum" position for a VMO at Pambula Hospital. In a letter to him dated 10 April 2002 Dr Arthurson advised that his duties would be to provide "on-call obstetric service for emergency Caesarean Sections ...". The temporary appointment was from 10 to 13 April 2002. (12) On 17 April 2002, he was advised that the Area Health Service Board had approved his appointment as the VMO Obstetrician and Gynaecologist at Bega and Pambula District Hospitals. (13) In April 2002, he commenced providing services at Bega and Pambula District Hospitals as a VMO Obstetrician and Gynaecologist. In that position he engaged in the treatment of patients that fell within the field of obstetrics and gynaecology. (14) On 12 April 2002, he called the NSW Medical Board and informed them that he had been appointed to the position of VMO Specialist Gynaecologist to the SAHS. He explained that obstetric services in the SAHS were the realm of accredited GP Obstetrics and he had explained that he would not be doing obstetrics. (15) During his appointment the respondent undertook the following obstetric procedures: (i) Participation in the caesarean section roster; (ii) Acceptance of referrals from general practitioners seeking specialist advice about obstetric conditions; and (iii) Undertaking the treatment of 36 patients, which included assisting in the management of a mid-trimester induction and labour, consulting on the management of complicated labour/deliveries and assisting in caesarean sections. (16) During his appointment with SAHS (10 April 2002 to 13 April 2002, and 24 April 2002 to 11 July 2003) the respondent was remunerated as follows:

$44,720.82 for participating in the on-call roster;
$184,528.57 for services performed, $23,104.03 of which related to obstetric services performed. 211The charge against the respondent was that between 1 December 2001 and 11 July 2003 at Bega, he by a deception, namely by falsely representing that he was entitled to perform the clinical practice of obstetrics, dishonestly obtained for himself a financial advantage, namely an appointment as Visiting Medical Officer Obstetrician and Gynaecologist at Bega and Pambula District Hospitals. 212On November 2002, it became apparent to the Director of the NSW Medical Board that the respondent was practising in breach of the 1997 order of the PSC. 213The SAHS removed the respondent from the roster of obstetric services at Bega and Pambula Hospitals following which on 12 November 2002 the NSW Medical Board contacted him requiring clarification of his employment status. 214In a reply letter the respondent stated that in his initial interview with Dr Arthurson he had explained that he had a conditional registration and would not be practising obstetrics. He said he also had given a similar indication in his interview with the SAHS panel. 215On the very evening of 13 November 2002 he went on to perform a caesarean section. Despite assurances to the NSW Medical Board and the SAHS, the respondent continued to provide obstetric services until 30 December 2002. 216On 10 January 2003, his appointment as VMO was suspended. An inquiry then took place under the Medical Practice Act 1992. In the course of the inquiry, he wrote a letter in which he stated "I wish to declare absolutely that there was no attempt at deception on my part in seeking this appointment." 217On 7 April 2003, the SAHS served notice on the respondent of the termination of his contract effective midnight 11 July 2003.

[33]

Respondent's submissions 219It was submitted on the respondent's behalf that the makeup of the total "benefit" received by the respondent was a significant matter. The offence quantum included the total remuneration received from the SAHS during the period of the respondent's employment and included payment for "bona fide" gynaecological work that the respondent was properly qualified and registered to undertake. Such work was not the subject of restriction. Of the total payments received, $23,104.03 related to "obstetric services performed" and $44,720.82 to participating in the "on-call roster". It was submitted that only a very small portion of the funds referred to at [23] of the Facts Sheet concerned the obstetric procedures described at [22]. 220It was contended that this was not, unlike many cases under s 178BA, one where the respondent obtained something for nothing and that the sentencing judge appeared to accept that proposition. Indeed, his Honour stated: "The significance of that charge, it seems to me, lies not so much in the actual property obtained or money obtained as in the nature of the deception ... sort of like practising without a licence." Proceedings on Sentence at p 39. 221It was observed that there was no evidence that the respondent had undertaken the work other than competently. This case, it was submitted, was not one of greed even though the respondent had debts prior to moving to Bega. Further, it was said that there was no evidence of him using funds for a lavish lifestyle. 222It was also submitted that mitigating factors apply to this count, as was the case with the offence charged under s 33 of the Crimes Act. These were said to be additional to the plea of guilty. The offence, it was observed, was a most unusual one of its kind and, dealt with in isolation, was unlikely to attract a custodial sentence at all: Respondent's Written Submissions at [70]. 223Reference was made in the respondent's submissions to the JIRS statistics which showed that 67 per cent of all offenders dealt with in the District Court received full-time custodial sentences. Of the 46 offenders who had no prior record, a medium head sentence of 30 months was imposed. The medium non-parole imposed was 12 months for the offender with no prior convictions.

[34]

Conclusion on the Sentence Imposed 224The sentencing judge observed that the respondent had attempted to justify his conduct on some "confused medico-legal theory that he was obliged to act in emergencies. His testimony on this subject was disingenuous and was exposed under cross-examination. I do not accept it.": ROS at p 11. 225The sentencing judge went on to deal with what he referred to as "context" by which his Honour meant the period up to 2002 during which the respondent was an "impaired" practitioner. In that period when he was deceiving the hospital and medical authorities, the sentencing judge found he was under stress. This, the sentencing judge stated, "...shows a failure of judgment akin to that remarked upon by the members of the 1997 Professional Standards Committee ...": ROS at p 12. 226In his consideration of the offending, the sentencing judge stated that the three patients whose treatment gave rise to the convictions had been: "... confronted by a doctor with major problems. His treatment of the three women was in each case reprehensible. The women told the truth. The respondent has shown no contrition for his misconduct": ROS at p 12. 227The sentencing judge, however, did not otherwise make any specific findings in relation to the nature or level of criminality involved in the deception offence. 228The term of imprisonment of one year imposed on the respondent commenced on 1 June 2011 and expired on 31 May 2012. His Honour stated that no non-parole period was set, noting that other sentences were to be imposed. He noted that the commencement date for the sentence took into account time already served by the respondent in custody. 229I do not consider that his Honour sufficiently analysed the evidence concerning the offence nor formulated the necessary findings with a view to determining the objective seriousness of the offence. The evidence, including in particular the Agreed Facts (Exhibit S1), clearly established that the respondent set out on a deliberate deception over a period of time which was practised on both the Deputy Director, Medical Services of the SAHS and the NSW Medical Board and those in a supervisory position at Bega and Pambula District Hospitals. 230Although therefore the evidence plainly established such a serious level of deception carried out over a substantial period of time, his Honour failed to make necessary findings as to the objective seriousness of the offence. This it appears led his Honour to adopt a benevolent, if not excessively lenient, approach based upon the view that the respondent's deceptive conduct was more in the nature of a lapse in judgment: "Not only did he continue to be under stress, he was deceiving the local hospital and medical authorities. This shows a failure of judgment akin to that remarked upon by the members of the 1997 Professional Standards Committee." ROS at p 12. 231There is, in my opinion, much in the evidence that supports the following submission made on behalf of the Crown: "... insufficient regard was had of the objective seriousness of this ongoing offence, and of the principles of deterrence, as well as undue weight being placed on the respondent's subjective case ... has contributed to the inadequacy manifest in the sentence imposed.": Crown Written Submissions at [79]. 232The Crown maintained that neither a summary of facts in the Remarks On Sentence nor the sentence of 12 months "... reflects the careful and continued deception in which the respondent engaged with the Southern Area Health Service over a period of almost 2 years ...": Crown Written Submissions at [75]. 233I accept the Crown's submissions as to the significance of the following matters: (i) "... the unique nature of the deception": Crown Written Submissions at [77]. In that respect the submission was: "... for not only was the respondent being remunerated for the very work he was prohibited from undertaking, his continued practice in obstetrics served to effect [sic] the potential risk to patients which had formed the basis of the disciplinary action in the first place, that is, the respondent, fully cognizant of the findings of the Professional Body, circumvented the result, and placed patients at risk for almost 2 years.": Crown Written Submissions at [77]. (ii) The fact that the respondent's actions and misrepresentations involving a deliberate course of conduct resulted in him being employed in performing the very procedures which the PSC had prohibited him from undertaking given, inter alia, that he was found to lack the adequate knowledge, skill, judgment and care: Crown Written Submissions at [76]. 234I am satisfied that appellable error has been established in relation to the sentencing of the respondent for the "obtain benefit by deception" offence. The question remains as to whether or not the sentence imposed of 12 months was, having regard to all matters relevant to determining sentence, manifestly inadequate. 235The amount of salary received as a result of the deception, being $23,104.93 in respect of obstetric services performed, is a matter to be taken into account in the context of the whole of the salary remuneration received ($299,249.39), along with the nature and circumstances of the deception and the unlawful opportunities which it thereby provided for the respondent. These matters all indicate, in my assessment, that the offence was a most serious one and that the sentence imposed was manifestly inadequate. 236I have concluded that an appropriate sentence for the offence was a term of imprisonment of 2 years. 237The respondent is entitled to a discount for his guilty plea in respect of the "to obtain benefit by deception" offence. Whilst the sentencing judge did not refer to this, in my view the lateness of the plea can only lead to a reduction in the order of ten percent.

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(a) Crown Submissions 238The Crown's submission in respect of each offence was that the sentencing process was predicated on the basis that the respondent was "severely depressed." The Crown's contention was to the effect that but for the undue emphasis upon the respondent's "depressive illness" the sentence on each offence would have been substantially greater: Crown Written Submissions at [80]. 239The issue raised by this ground of appeal accordingly was primarily directed to the question as to whether the evidence established that the respondent's depressive condition materially affected his clinical judgment such that it could be found that it played a direct role in his offending behaviour. 240The Crown referred to Dr Dalton's report dated 14 June 2011, (Exhibit SB), in which Dr Dalton stated that from April 2002 until July 2004, the respondent attended upon her on a monthly basis and during that period his mood was stable, it being noted that he took his medication regularly. The Crown observed that the respondent's own evidence was that during this time he had gained insight in relation to the issues that had resulted in him being "an impaired practitioner". 241In relation to Dr Nielssen's report dated 14 June 2011, the Crown contended that Dr Nielssen's opinion was that the respondent's outlook "might" affect other forms of clinical judgment. However, his observations fell short of any clear opinion that the respondent's depressive illness had in fact played an immediate or direct role in his offending behaviour. In this respect, the Crown referred to the decisions of this Court in R v Hemsley [2004] NSWCCA 228 and Wilmot v R [2007] NSWCCA 278. 242The Crown submitted that there was no evidence to support the sentencing judge's finding to the effect that the offending was caused by a depressive condition and that such a finding had not in fact been one that had been urged by defence counsel. 243The Crown, in relation to the offence of grievous bodily harm, submitted that the finding that the respondent performed an unnecessary and unjustified operation as a result of mere honest but mistaken judgment and the finding that this had arisen as a consequence of his depressive condition was erroneous. I have earlier indicated that in relation to that offence, the jury's verdict did not preclude a finding that the respondent acted with an honest but mistaken judgment as to the extreme surgery undertaken by him. 244The Crown finally submitted that in respect of the grievous bodily harm offence, whilst the sentencing judge was entitled to have regard to depression with which he suffered as part of his subjective case (R v Israil [2002] NSWCCA 255), the sentence should not have been so substantially reduced by reason of any depressive illness: Crown Written Submissions at [93]. 245In respect of the offence of aggravated indecent assault involving the victim CA, for reasons earlier stated, I do not consider that any error has been established in respect of the term of imprisonment of 18 months imposed in respect of that offence although error has been conceded in that a fixed term was imposed and accordingly the resentencing proposed below addresses the need for the respondent to be resentenced in order that that error be corrected. 246In respect of the offence of obtain a benefit by deception, the Crown submitted, as noted above, that there was no evidence that the cause of that offence was depression. Further it was submitted that there was no evidence that throughout that offence the respondent maintained his dishonest deception by reason of any mental illness. The motivation, it was contended, was clearly financial and the sentence should not have been so substantially reduced by reason of any depressive illness. 247In summary the submission was that a finding of a causal connection or link by the sentencing judge was not open on the evidence and this manifested sentencing error in respect of each offence resulting in sentences that were each manifestly inadequately.

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(b) Respondent's Submissions 248On behalf of the respondent it was submitted that the sentencing judge did not give undue emphasis to the respondent's "asserted depression" nor, it was contended, did his Honour err in finding a causal link between the respondent's offending behaviour and his mental state. 249The written submissions on behalf of the respondent referred to many of the decisions of this Court on the question of mental illness and in essence it was submitted that the approach taken by the sentencing judge in respect of the relevant offences was consistent with established principle. 250The submissions referred to evidence that establishes that the respondent had suffered a major depressive illness in the 1990's and that he had been diagnosed with such a condition from 1996 by Dr Dalton who had prescribed counselling and daily medication. Reference was also made to the 1997 PSC findings as well as the evidence of the respondent's wife. 251In terms of the impact of the depressive condition upon the respondent and his offending, it was submitted that the evidence established a causal link between the offending and his mental health condition. The evidence was that his depressive condition was operative, although being treated, when the respondent moved to Bega in 2002. Reliance was placed upon Dr Nielssen's comment that depression could affect "other forms of clinical judgment" and that this had been supported by evidence of Dr Dalton during the 1997 PSC hearing. 252It was submitted that the evidence as to the respondent's "pattern of depressive behaviour" was particularly evident in the treatment of Ms De Waegeneire. 253Reference was made to decisions of this Court which noted that psychological conditions, such as depression, may be taken into account in sentencing even though such conditions have not been found to be causative of the offending: TC v R [2009] NSWCCA 296; R v Benetiz [2006] NSWCCA 21; (2006) 160 A Crim R 166; R v Champion (1992) 64 A Crim R 244 and R v Wright (1997) 93 A Crim R 48. 254It was contended that the sentencing judge was not prevented from having regard to the respondent's psychiatric problems when evaluating the subjective circumstances at the time of offending.

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Consideration 255The evidence established that the respondent had, in the 1990's, exhibited both "personality traits" as well as symptoms of anxiety and depressive mood which in combination had impaired his judgment in the conduct of his medical practice. In 1997, the PSC made a finding that he was "impaired" by reason of his personality and relationship problems and depression and that this had detrimentally affected his mental capacity to practice medicine (Exhibit S6 p 41). 256The evidence of Dr Dalton was that the respondent, from April 2002 until July 2004 was treated, by way of medication (Zoloft) on a daily basis, and that in that period his mood appeared to be stable. It is to be observed that the report of Dr Dalton dated 14 June 2011 did not comment upon the existence of any particular symptoms or disabilities that impacted upon the respondent's capacity to conduct practice as a medical practitioner within the restrictions that had been imposed upon him. 257The history provided by the respondent to Dr Nielssen included the fact that he had received treatment from Dr Dalton for depression, that he at first did not accept that he had been depressed but that after having received treatment he realised that he had been. 258The history provided by the respondent to Dr Nielssen including the discussion of the subject offences, does not refer to symptoms experienced by the respondent such as stress, anxiety or depression. The absence of any history upon those matters would provide a basis that explains why Dr Nielssen did not advance an opinion as to a link or a causal relationship between the respondent's depressive condition that had been treated by Dr Dalton and the offending behaviour. Dr Nielssen (p 6) referred to the observations made by the respondent's wife as to his depression within a period during which complaints had been made to the Medical Board. It was in that context that Dr Nielssen referred to the fact that severe depression results in a pervasively negative outlook and can have a significant effect on decision-making and personal judgment. 259Dr Nielssen recorded in the "Opinion" section of his report that the respondent had denied committing the offences for which he had been convicted at trial, and reported that he had been receiving treatment for his depressive condition at the time of the offences with a standard dose of antidepressant medication "... and did not feel especially depressed at that time. He denied the existence of any connection between his psychiatric disorder and his alleged behaviour while working at Bega." At p 6. 260The only point made by Dr Nielssen relevant to the respondent's offending was his statement to the effect that a depressive outlook might affect other forms of clinical judgment, as for example in providing a prognosis in relation to a form a malignancy. That statement was then followed by the observation: "However, Dr Reeves maintained that his treatment decision in the case of Ms De Waegeneire was based on his clinical and research experience with the condition and was not affected by the presence of depressed mood." 261In his Remarks on Sentence the sentencing judge stated: "In relation to each of the four offences, the appropriate sentence would in each case have been substantially greater than this figure were it not for the significant mitigating effect of the severe mental illness by which I find he was affected at the time of each of the offences and other mitigating factors ..." 262I accept the submission made by the Crown that the statement of Dr Nielssen (that a depressive outlook could or might affect other forms of clinical judgment) fell short of any statement by way of medical opinion that the respondent's depressive illness had played an immediate or direct role in the offending behaviour: Crown Written Submissions at [82]. 263The Crown accepted that it is only where a sentencing judge has proceeded on a material finding of fact which was not open on the evidence, or where the judge has, in some important matter, mistaken the facts, that this Court will review the fact finding of the sentencing judge. However, the Crown submitted: "Here, ... there was no evidence to support his Honour's finding, the evidence is to the contrary. The finding made by his Honour was not urged by defence counsel as causal, and in any event, there was no proper foundation for his Honour's finding.": Crown Written Submissions at [86]. 264The evidence does not, in my opinion, support the proposition that the respondent's depressive condition was directly causative or linked to the particular offences for which he was convicted. 265There is evidence that the respondent did suffer from a depressive condition over a period of years commencing in 1996 and subsequently in the period between April 2002 to July 2004 and for which he was being medically treated in the period of the offences. His medical condition was a circumstance that the sentencing judge was entitled to regard as one of the relevant subjective circumstances. The evidence would support the conclusion that the respondent was affected by personal traits and depression that could have reduced the competent discharge of his professional duties. The medical evidence, however, did not address the issue as to whether the respondent's mental condition had caused his offending behaviour. The other evidence, including the evidence as to the matters that led to the decision of the PSC of the NSW Medical Board and the evidence given by the respondent's wife, did not provide sufficient support for the mental illness finding that was made by the sentencing judge extracted in [261] above. 266I have concluded that the sentencing judge gave excessive weight to the respondent's chronic depressive condition, in particular, in relation to the issue of his culpability in respect of the offence of obtain benefit by deception (s 178BA of the Crimes Act 1900) and the offence of maliciously inflict grievous bodily harm with intent (s 33 Crimes Act 1900).

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His Honour erred by failing to adequately accumulate the sentences, leading to a manifestly inadequate total sentence and manifestly inadequate total non-parole period. 267The Crown submitted that the sentence structure applied by the sentencing judge resulted in an aggregate sentence which failed to reflect the totality of the respondent's criminal activity: Crown Written Submissions at [100]. 268Reference was made to the well known observations of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] to the following effect: "... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality." 269Howie J also observed in that case: "Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other." 270It was submitted that the total sentence imposed and the non-parole period simply could not be said to reflect the total criminality of the respondent's four offences. 271The Crown's submission was, in effect, that the sentencing judge erred in a number of respects including the following:

Error in relying upon the fact that all offences occurred in one locale. To treat that fact as a common factor, it was contended, was contrary to authority: Cahyadi, supra,
The fact that the sentence in respect of the s 33 offence was wholly subsumed by the sentences imposed on unrelated offences (the effect being that the respondent was to serve no non-parole period solely referrable to the s 33 offence). Crown Written Submissions at [102]. 272The Crown submitted that the absorption of the non-parole period of the sentence relating to the offence of maliciously inflicting grievous bodily harm into the sentences imposed with respect to the other offences, amounted to a failure to acknowledge the harm that was done to each complainant as a separate victim: R v Wilson [2005] NSWCCA 219 at [38].

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Re-sentencing 277I have earlier stated that the respondent should be re-sentenced on the basis of a finding of special circumstances, in particular, by reason of the need to appropriately accumulate the sentences to be imposed: at [187]. I note that there exist two other bases for such a finding which were expressly relied upon by the sentencing judge, namely (i) that the sentences of imprisonment under the sentence to be imposed on the respondent represented his first term of imprisonment, and (ii) the prospect that he would serve his term of imprisonment in isolation, which would represent a special hardship to him: The special circumstances finding will be reflected only in the last of the sentences to be imposed as there is no utility in making an adjustment to the earlier sentences (aside from the need for some rounding to achieve a practical result). 278To correct the error in relation to the sentence for the aggravated indecent assault offence identified under ground 2, I propose that the total term of imprisonment of 18 months be maintained but that a non-parole period within that term be set. This is not a case in which the fixed term was imposed with the intention that it represents what would otherwise have been the non-parole period of a sentence: see the discussion of this issue in Collier v R [2012] NSWCCA 213 at [52]-[62] per R A Hulme J. 279In determining the sentence for the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent is entitled to a discount for his guilty plea in accordance with well-established sentencing principles. As the plea was not entered until 8 February 2011 the discount to be allowed should be at the lower end of the accepted range as is appropriate for a late plea, namely, as stated earlier a ten per cent discount on sentence. 280The sentence for the obtain benefit by deception offence will be one of 1 year 9 months after a reduction of 3 months on account of the respondent's plea of guilty. 281The total effective sentence will be one of 5 years 6 months with a non-parole period of 3 years 6 months.

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Orders 282I propose the following orders: (1) Appeal allowed. (2) The sentences imposed by the District Court on 1 July 2011 be set aside. (3) The respondent be re-sentenced as follows: (i) In respect of the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013. (ii) In respect of the offence of aggravated indecent assault of CA under s 61M(1) Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013. (iii) In respect of the offence of maliciously inflict grievous bodily harm with intent under s 33 Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years to expire on 30 November 2016. 283Accordingly, the first date upon which the respondent will be eligible for release on parole will be 30 November 2014. 284R A HULME J: In relation to the applicant's conviction for the offence of maliciously inflicting grievous bodily harm with intent, I agree with the judgment of the Chief Justice. 285I record that upon my own assessment of the evidence, whilst I have a doubt as to whether the applicant did not honestly believe that the surgery was proper surgery for the complainant's benefit, I am satisfied beyond reasonable doubt that he did not honestly believe that she consented to an operation of the magnitude of that which was performed. 286I also agree with the judgment of Hall J in relation to the Crown appeal against sentence. My judgment that follows concerns the application for leave to appeal against conviction for the offences of aggravated indecent assault.

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Count 3 - CA 293CA was the complainant and only eye witness in relation to count 3. She gave evidence that she was first referred to the applicant by her general practitioner, Dr Patty Salisbury, for a pap smear. She had asked Dr Salisbury about the possibility of having a hysterectomy, but was informed that she was too young and should consider a tubal ligation instead (T86). Dr Salisbury gave evidence that she had in fact referred CA for a tubal ligation and this was confirmed by the doctor's referral letter (Exh K) (T160). 294CA attended the applicant's consultation rooms on 21 February 2003. She had partially undressed and ascended the examination table when the applicant noticed a scar on her stomach from an ectopic pregnancy in 1994. She gave evidence that, "he was just having a look, like a grin, smirk on his face. I think it was then that I mentioned that I didn't want to have any more kids so I'm looking into getting my tubes tied." CA said that during the examination there was no sheet on the table, just a towel the applicant had placed on her left leg (T 87-88). 295The applicant informed her that he could use the existing scar to undertake a tubal ligation. CA said the applicant then "placed a left hand on the top of my vagina... Just over the top of the pubic hair." She did not think there was any need to do that; she was shocked (T 88-89). 296The applicant told CA that she needed to relax. She then felt probably two or three of the applicant's fingers inserted into her vagina. She stated that the fingers just sat there for "four or five seconds", before "I felt something cold inside my vagina, and then as I was lying there I felt something that stated rubbing over my clitoris." At first she thought that it was "a new device or machine... like dildos with the little clitoris-rubbing thing that it's got on them" (T89). 297CA then gave the following evidence about her examination. Q. Sorry, how long did you feel something in contact with your clitoris? How many seconds or minutes? A. I wasn't really timing. From the time that I felt the cold to the time that he said it was all done. Q. What happened over that time? A. He just kept rubbing my clitoris, and he didn't stop. Q. Did it feel like a light touch, a heavy touch or something in between? A No, it was a - like a rubbing from side to side. If anything I thought I was being masturbated. After that had finished I felt a scrape and he said that it was all done. ... Q. When you think back on it now, if you can try to reconstruct, how long was it - even though you say you weren't timing it at the time - how long do you say it was that something was rubbing your clitoris from side to side? A. I'd say at least a minute in - in terms of - of - minutes. It just seemed to be forever. Q. Do you know what it was that was in contact with your clitoris? A. If felt like a finger or thumb. (T 90) 298CA then was asked whether the applicant was wearing a glove or gloves at the time of the examination. A. At first I wasn't sure, and it wasn't until 16 December 2008 when I got interviewed by one of the detectives and she'd asked me the same thing... there was no gloves on his hand at all. ... Q. So in relation to the question about gloves, were you able to remember in 2008 whether or not he had a glove or gloves on or not? A. Well, when I felt the scrape and my eyes sort of come back in focus, he had no gloves then, and it would have been - been to quick [sic] for him to put some on. When my clitoris was getting rubbed there was no feeling of rubber or anything like that. I have been stimulated before and I know how it feels (T 90-91). 299In cross-examination, CA repeated that she had felt something rubbing against her clitoris for what "would have been around a minute". She denied that it could have been for a matter of seconds (T105). She also maintained that the applicant had conducted the vaginal examination using his ungloved left hand and denied that what had occurred was an internal ultrasound (T99-103). 300After leaving the consultation room, CA told her husband SA that the examination was "different", but said she had left it at that. She thought her mind was playing tricks on her but in reality she knew that it was not (T91). SA gave evidence that his wife had been referred to the applicant for the purposes of having her "tubes tied". He said that following the examination "she seemed a little agitated. I really don't know the reason why" (T120). 301On the 20 March 2003, CA attended the Pambula Hospital where the applicant performed the tubal ligation on her. She gave evidence that she only knew he would be the operating doctor when she was filling out the admission forms at the hospital. Her evidence was: Q. Did you know he was going to be the doctor to [do] it? A. Only when I filled out the admission form at the hospital. I'd asked who the doctor was going to be and they said it was him. Q. Did you consider proceeding with it or not proceeding with it or what? A. I considered not proceeding with it and the only way I sort of logically got over that was if I had another kid I couldn't go through an abortion. At that time we weren't ready for another child so I couldn't put myself - and the main thing there, there'd be other people in the room as well, so it just wouldn't be me and him. So if anything I would've felt a little bit safer (T92). 302Following the operation she determined not to see the applicant to have her stiches from the surgery removed, and instead returned to Dr Salisbury for that procedure (T92). 303In February 2008, CA came across online reports of other allegations that had been made against the applicant. On that day, she showed the reports to her husband and told him what had occurred in the examination. SA said, "that was the first instance I heard about the allegations of inappropriate touching. My wife was very emotional, she broke down very hard" (T120-121). 304She then contacted Bega Police to make a complaint, before making a detailed statement on 16 December 2008. CA also contacted a law firm in relation to pursuing a civil claim against the accused for injuries resulting from the tubal ligation (T93-94). She received compensation in the sum of $36,000, which she described as "not enough" (T116).

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Nature of the touching 308The applicant showed RF the ultrasound probe to be inserted. She said: A. And then after he showed me that he put his hand on my fanny...(T169) ... Q. So the right hand he has the instrument that is inserted. What do you say that [he] did with his left hand during the course of this. You said he put it on your fanny. What do you mean by that exactly? A. Well, I was lying with my, you know, feet right up to my bum with my legs spread open as far as I could, and the - say that's my pubic hair bone, the pressure was like right on there and I could feel his fingers on like on either side like on me clitoris, so yeah. Q. So part of his hand was over the top of the area of pubic hair? A. Yeah, it was like - I don't know whether he was doing that just to try and open me up, I don't - I don't know, but it felt pretty uncomfortable. Q. Where were the fingers in relation to your clitoris? A. At first when - the first time he put his hand on me it was like right - if that was my clitoris it was like I could feel it going like that on my fanny. HIS HONOUR: The witness indicates one hand over the top of the other. Q. And indicating some movement? A. Yeah, yeah, just like - I wouldn't say hard, and it wasn't just light, it was like a medium pressure there, and then he wriggled the machine around, and then he moved his hand to do whatever he had to do, then he put his hand back there again, but this time it felt like it was more - if that was my opening it was like that, his hand felt like it was like right on that part where my clitoris is. Am I making any sense? (T170) (Emphasis added) 309There was then some discussion about what it was that the witness was trying to demonstrate which was not clearly explained for the benefit of a reader of the transcript. The evidence continued: Q. Did you feel anything connect with your clitoris itself? A. Yes. I don't know if it was his finger or his thumb I don't know but something like I said not heavy, not light rubbed you know across my clitoris. I don't know, it was just quickly like it didn't go on for my whole internal ultrasound or anything like that. It was the two times that when he first put his hand on my fanny to put the instrument in then you know like he's wiggled it around and his hand is there, then he's done whatever he's done to the computer or to the machine. Then he put his hand up there again and wiggled the machine around and then that's when he's turned the TV screen around for me to have a look at the fibroids. Q. On the second occasion that you just indicated when he puts his hand back there, was there any connection made with your clitoris then? A. The same as the first time. Like I don't know if he was meant to do that to make it go in, I don't know. (T172) (Emphasis added) 310At the end of her evidence in chief the prosecutor took RF back to the nature of the touching: Q. When you described the first touching of the clitoris there was some movement to you --? A. Yes, both times there was. Not like that, just like - Q. Not - you're saying moving your finger vigorously in the first instance and saying not vigorous, is that right? A. Like he wasn't going like that on it, I could just feel his hand going like that across it, not like that or anything just his fingers was going like that across it, not - HIS HONOUR: The witness indicates in the first instance a fast motion and the second instance a slow motion. WITNESS: Yes so it wasn't fast. It wasn't like that, it was like that over it. CROWN PROSECUTOR Q. Rubbing it - A. Yeah like he was just like rubbing it. He wasn't flicking it or. (T177) 311In cross-examination, RF gave the following evidence about the nature of the touching: Q. You told us that there was contact, you believe, between you and the accused - well, you felt something touch your clitoris on two occasions, correct? A. Mm-hmm, my whole fanny. Q. I'm sorry, I need you to answer yes or no? Is this your evidence, that you felt something touch your clitoris on two occasions? A. Yes. Q. On each occasion, was that around the time that the accused had put his left hand in your pubic area in the way you've indicated, with the thumb and the forefinger, as it were, on either side of your labia, is that right? A. Well, that's - I don't know if it was exact fingers. I had my hand like this - I could just feel it. Q. You weren't watching? A. No. HIS HONOUR: The witness indicates that she wasn't actually watching her crotch area. [COUNSEL FOR THE APPLICANT] Q. In relation to each of those contacts - correct me if I'm wrong - you said that the accused put his hand in that area? A. Yes. Q. And then moved away to the machine and then moved back - A. He didn't move away from me. He still had the instrument inside me with his hand like that, moved his hand away, done whatever he done, because I could hear it, then - HIS HONOUR Q. You mean moved his left hand? A. Yes. And then the hand - I felt the pressure back there again. He'd done whatever he'd had to do with the instrument, I'm assuming, to find the fibroids. Then his hand moved again and then that's when he turned the screen around for me to have a look at what the fibroids were. [COUNSEL FOR THE APPLICANT] Q. Each of the times you say you felt contact with your clitoris - A. Yes Q. - that was shortly after he'd put his hand back in position? A. Yes. Q. Is that correct? A. Yes. Q. Can you help me with this if you can? Was the position that he had his hand consistent with his trying to separate the - A. His - Q. - separate your genital area, on either side? A. Yes. (T182 - 183) (Emphasis added) 312RF was asked whether when she felt contact with her clitoris she said anything to the accused. She said that she did not; she "just tensed up"; she did not ask him to stop. The evidence continued: Q. Was that because you were unable to say either way whether or not that was just a part of the procedure? A. Like I said to [the prosecutor] that - I don't know if that's how it was meant to have his hand and do what he was doing to get things in, I don't know I just felt really uncomfortable and embarrassed with it. Q. In relation to contact didn't you tell us that you felt something rub across your clitoris quickly? A. Well like I said it wasn't quick like this, just when the hand was there I felt it go whatever, whether it be the knuckle, his finger, his thumb, I don't know, but something rubbed across my clitoris. (T184). 313In re-examination, RF was asked about her agreement with the proposition that the applicant's actions were consistent with trying to separate her genital area. An objection to the question was overruled and the evidence continued: Q. What part of the actions were consistent with separating the genital area? A. Just the way that he had his hand like that, I'm just assuming that's how he was opening it up, but I can't - I don't know. Q. When you answered that in relation to consistent with trying to separate the genital area, were you talking about the first time or the second time or both? A. Both times how he had his hand like - I could feel the pressure of his - like the warmth of his hand on top of me and then it was over and I could feel it like on either side of my flap. Q. Use whichever terms you are comfortable with? A. So it felt like it was on like either side of that and a movement on top of my clitoris, but like I said, I could feel it moving but it wasn't like a fast motion, I could just feel it like going across. So I don't know if he was meant to do that. Q. Between the first time and the second time, was the probe removed or did it stay in? A. No it was still inside me (T193).

[51]

Evidence of subsequent events 316Following the examination, RF agreed to have a vaginal hysterectomy and the applicant made arrangements for him to conduct the surgery on 8 May 2003 at Pambula Hospital. Under cross-examination, RF stated that she agreed to the applicant conducting the operation because "I trusted him. Why wouldn't I?" Q. So it's the case that at that stage, although you thought that there may have been something wrong that had happened in the examination you were still happy for him to operate on you? A. I felt very uncomfortable with what happened in his surgery but like I said to you, I didn't know if he was meant to touch me like that or not so - yeah. (T185-186) 317RF denied that she seen the applicant more than once prior to the surgery. However, a second visit was supported by contemporaneous notes made by the applicant (Exhibits 21 and 32). 318At the surgery, RF received a spinal block anaesthetic from Dr Thomas, the attending anaesthetist. She was told to sit still before the needle was administered to her spine. She gave evidence that, with her legs hanging off the operating table, the applicant moved to a position between her legs and told her to "hold onto him and held me so I wouldn't move and I wrapped my arms and legs around [the applicant]" (T174). 319In this position, while the spinal block was being administered, RF said "I actually felt his penis or - flex against like the inside of my leg and the side of my fanny... right up near my - where your knickers go in your groin there, in that area." At the time she was only wearing a hospital nightgown. She described the contact occurring for "[a] few minutes, a couple of seconds. Say a few minutes" (T174-175). 320It was RF's evidence that what had occurred in the operating theatre changed her mind about the applicant. She saw the applicant twice while recovering in hospital. But she said that she had determined not to see him again after leaving hospital and sarcastically commented to the nurse about the applicant's "lovely bedside manner" as she left. 321Other than RF and the applicant, there were six people present at the surgery on 8 May 2003. Dr Thomas made a statement that he could not recall the procedure, but that having a patient wrap her arms and legs around a person, as described by RF, would have struck him, as it would inhibit the administration of the spinal block (Exhibit 26). It was an agreed fact that none of the other five people present could recall the surgery either and did not have any record of anything unusual occurring (Exhibit 27). 322When it was put to her in cross-examination, RF disputed that she had subsequently attended the applicant's rooms 12 days after the surgery on 20 May 2003. This was contradicted by the applicant's notes, attendance records and correspondence concerning outstanding fees (Exhibits 17,18 and 21). 323RF said that she did not complain about what occurred with the applicant due to embarrassment and the desire to avoid attention after her husband had died. She also said, "I didn't know [the applicant] had to put his hand where he did for me to have my internal ultrasound" (T175). She said she finally decided to raise the complaint after hearing another former patient of the applicant on radio discussing her experience: Q. What happened that finally made you come forward about these matters? A. [First name of complainant in the first trial], I don't know her surname - it got to me when it was said on the radio that she'd lost her husband eight or nine months prior to her operation and things went wrong for her. And then I felt like, well maybe it wasn't my imagination because I'd just lost [name of former partner] 16 months beforehand and the same thing happened to me (T176) (Emphasis added). 324She attended a meeting at Bega RSL organised by the Medical Errors Action Group for former patients in March 2008. She subsequently received compensation of $42,000 in relation a civil matter concerning the hysterectomy performed by the applicant.

[52]

Expert evidence 325The Crown called two expert witnesses to give evidence, relevant to both counts 3 and 5, as to the proper procedures for conducting vaginal and internal examinations. Dr Andrew Pesce, a specialist gynaecologist and obstetrician, described any contact with the clitoris that would occur when performing a pap smear or internal ultrasound "would be incidental if not accidental... if there is any contact it would be transient" (T195). 326The doctor stated that when separating the labia for a pap smear or insertion of an ultrasound probe, the crucial application of the fingers is "in the middle... there would probably be some incidental contact with the upper part of the lower vagina, heading towards the clitoris as well" (T196). 327Dr Pesce agreed that gynaecologists were trained to position their left hand above or slightly over the pubic hair area when conducting a vaginal examination to counterpressure the internal hand pushing from below (T210). He agreed that the internal hand would then be gloved, but it was common practice for a gynaecologist to only use one glove (T196). 328Dr Pesce said that if a professional doctor's hand were resting on the mons pubis, he would go to every length possible to minimise contact with the clitoris. As to whether there was any acceptable reason for the clitoral area to be rubbed from side to side during these examinations, Dr Pesce responded: A. I can imagine because everything is so close together there might be some accidental very brief contact that would be consistent with what you describe but it should be very brief and not last more than a couple of seconds at most (T198). ... Q. Is there any acceptable reason for the clitoris to be manipulated with the finger during any of these routine gynaecological examinations? A. Not intentionally no (T199). 329In cross-examination the doctor agreed with the propositions that a gynaecologist is vulnerable to a patient misinterpreting their actions in and around a sensitive and private area, and that there may be incidental touching of the clitoris in the performance of gynaecological procedures (T218). 330Dr Andrew Korda, a professor of obstetrics and gynaecology, also gave evidence that a major effort is made to avoid the clitoris when inserting a speculum for a pap smear or an ultrasound probe, though it could occur inadvertently (T238-240).

[53]

The applicant 331The applicant gave evidence, relying predominantly on his clinical notes regarding the complainants. There were also a number of documents tendered during his evidence. He said that he had no particular recollection of any of the complainants or the consultations that gave rise to the counts on the indictment. Between 1983 and 2004 (when he ceased to practice as a gynaecologist) he had seen 9,000 or 10,000 patients. He denied ever touching a patient's clitoris for purposes of sexual gratification; he had never touched the clitoris of a patient other than for a proper medical purpose (T298-299). 332The applicant stated that he always used a glove on his right hand when conducting an internal examination. He also stated that he provided gowns and modesty sheets at all times for his patients' privacy (T298). He also described his procedure for using the ultrasound probe and the speculum during a pap smear (T305-306). 333Relying on his notes, the applicant contradicted CA on the reason she gave for her referral to him. He indicated that she was referred to him in relation to a tubal ligation but he had also undertaken a routine pap smear (T397). He denied using any dildo and stated that he had used an ultrasound probe. 334The applicant again relied on his clinical notes in relation to RF. Contrary to her denials, he stated that he had conducted a breast examination on her first visit to his rooms on 2 May 2003 and prescribed her with Danazole, a restricted medication (T348). The applicant denied that he deliberately made contact with RF's clitoris, but accepted that inadvertent contact was possible with the manipulation of the opening of the labia during an examination (T351). As noted above, it was his evidence that on 6 May 2003, RF again attended his rooms and arrangements were made for her to be placed on the surgery list for two days later, following a cancellation (T351). 335In relation to her surgery, he agreed with Dr Pesce that the positioning RF described would be counter productive to administering the spinal block, as having the patient wrap her legs and arms around someone in front of them would move them away from the anaesthetist (T352). In cross-examination, he said he had suffered complications from a catheter following prostate surgery in 1997 and since then was unable to achieve an erection, making it impossible for his penis to have flexed against RF (T422). This evidence was supported by notes of the applicant's psychiatrist (Exh 40). The applicant also gave evidence about RF visiting him at his consultation rooms on a third occasion on 20 May 2003 (T353).

[54]

Ground 1 - The verdicts are unreasonable and unable to be supported having regard to the evidence. 336The applicant asks this Court to quash the verdicts of the trial judge on the ground that they are unreasonable and unable to be supported having regard to the evidence: s 6(1), Criminal Appeal Act 1912. This ground of appeal requires the Court to make an independent assessment as to the sufficiency and quality of the evidence: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. The principles that inform this assessment were succinctly set out in the joint judgment of McClellan CJ at CL, Fullerton and Garling JJ in Gilham v R [2012] NSWCCA 131: [465] Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. As the High Court recently confirmed in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [14], when considering whether or not the verdict of a jury was unreasonable the appellate court is to make its own independent assessment of the evidence both as to sufficiency and quality. The question that an appeal court is required to determine is whether, notwithstanding that there is evidence upon which a jury might convict, "nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand": M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493. Only in circumstances where a doubt experienced by a court of criminal appeal can be resolved by the jury's advantage in seeing and hearing the evidence can the court conclude that no miscarriage of justice has occurred: M at 494 quoted with approval in SKA at [13]. 337The central task of an appeal court considering this ground of appeal is to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v The Queen at 493. This was confirmed in SKA v The Queen (at [11]) where it was held (at [24]) that this Court had erred by undertaking that task without any weighing of the competing evidence. 338The Crown case at trial, in relation to both counts 3 and 5, relied on the evidence of the respective complainant, and the applicant's submissions in this Court were essentially directed at the reliability of that evidence. Mr Hamill SC for the applicant said that the crux of the applicant's case was that the complainants were mistaken about the touching that formed the basis of the two convictions, and that mistake involved an exaggeration (though not necessarily a deliberate one) of its nature and duration (13.8.12 T26). The Crown Prosecutor agreed that the duration and circumstances of the touching are pivotal to determining this ground of the appeal (13.8.12 T29). 339Mr Hamill submitted that there was a reasonable possibility that the complainants were mistaken about what occurred because of the delay in making the complaints and the media publicity that by then had surrounded the applicant. The submissions for the applicant addressed a variety of other matters as well in support of the overall contention that there was a reasonable doubt about his guilt in respect of both complainants. 340The Crown submitted that the trial judge had the significant advantage of observing the witnesses give evidence, particularly because the Crown case relied solely upon the evidence of the complainants (CWS 27). The matters raised concerning the reliability of the complainants were the subject of cross-examination at trial and considered by the trial judge. It was submitted that any doubt experienced by this Court would be one capable of being resolved by the tribunal of fact when seeing and hearing the evidence: M v The Queen at 494. However, Mr Hamill submitted that where the issue was not whether a witness is truthful, but whether the witness is honest yet mistaken, the trial judge's advantage in seeing and hearing the witnesses would be somewhat diminished (AWS 35). 341With reference to these issues raised in the submissions, I now propose to assess the evidence in relation to each count to determine whether it was open to the trial judge to be satisfied beyond a reasonable doubt that the applicant was guilty.

[55]

Count 3 - CA 342It is appropriate to commence with reference to a number of matters that were uncontroversial. 343There was nothing raised by the evidence that would cause doubt about the trial judge's finding that CA was under the authority of the applicant at the relevant time. She was in a vulnerable position, semi-naked and the subject of an intimate examination, and had entrusted her care to the applicant, a medical professional. Similarly, there was no suggestion that CA had consented to being touched indecently. 344The contested point, in considering whether it was open to the trial judge to be satisfied of the applicant's guilt, was whether the applicant touched CA's clitoris during the examination in a way that was of such a duration and nature as to constitute indecent assault. 345If CA's evidence of the nature and length of time that the applicant touched her clitoris is accepted as accurate, that touching could not be characterised as having been "incidental" to or a "misinterpretation" of an innocent act. CA described the touching as a deliberate "rubbing side to side" that continued for "about a minute". This description goes well beyond inadvertent touching that may be possible during a proper medical examination. If her account is accepted as accurate, it would constitute deliberate touching for personal sexual gratification on the part of the applicant. 346The applicant's case was a clear denial of the incident. He had no recollection of CA, but said he would never touch the clitoris of a patient for sexual purposes (T299). It was submitted that there was a reasonable possibility that CA's account of the examination misrepresented the duration and nature of any touching, and that what touching, if any, did occur would have been incidental to a proper medical procedure. 347It was submitted there were a number of evidentiary matters that, if accepted, would lead this Court to reach the conclusion that the applicant's case represented a reasonably possible version of events. The applicant relied upon these matters both individually and for their cumulative effect. Some, however, may be dismissed as having no individual force and thereby contributing nothing to the cumulative effect.

[56]

The complainant's evidence was erroneous in relation to important details, the error being established by the applicant's notes or by independent evidence 348In support of this contention there was reference to a number of matters: CA's evidence as to why she was referred to the applicant, her evidence denying that he had conducted an examination of her breasts, her evidence concerning the nature of the gynaecological examinations the applicant performed and her denial that she was not aware that the applicant would be the doctor to perform the tubal ligation until she attended the hospital for that procedure. 349It was submitted that CA was contradicted by objective evidence as to the reason for her being referred by Dr Salisbury to the applicant. It was put that she "maintained that she had been referred to the applicant, and had gone to see him, solely for a pap smear" and that "[s]he denied that she had been referred for the purpose of having a tubal ligation" (AWS [10] (vi)). 350I am doubtful that this accurately summarises the effect of the evidence given by CA, but in any event do not regard the issue as being of any significance. 351The applicant's notes (Exhibits 30 and 32) and Dr Salisbury's referral letter (Exhibit K) reflect that CA was referred for the purpose of tubal ligation. 352CA's evidence was that she had three children and had decided with her husband that they did not want to have any more. She wanted to have a hysterectomy and consulted Dr Salisbury. She gave the following evidence about that consultation: Q. What did you see her about? A. Just inquiring about a hysterectomy. The reply was that I was too young. The other option I had was to have my tubes tied. ... Q. Did Dr Salisbury mention something about referring you to another doctor? A. Yeah. Q. To who was she talking about referring you to? A. Oh just somewhere in Pambula, they do things like that up there. Q. What sort of doctor was she going to send you to? A. She didn't really say just that they don't - well she doesn't do things like that there so the place that they do tubes and things is at the hospital. Q. All right was a particular doctor's name mentioned to you? A. No. Q. Did you get an appointment to see [the applicant]? A. Yes. (T86) 353CA saw the applicant on 21 February 2003. On that occasion he performed a Pap smear. There was a discussion about having the tubal ligation surgery in the future. She gave the following evidence about this consultation: Q. Did you know that he was going to do any particular examination on you? A. I was just there for a Pap smear. Q. I see. A. Yeah just, that was it. (T87) 354The effect of this evidence is that for the purpose of having the tubal ligation carried out CA was referred by Dr Salisbury to the applicant and that at the first meeting with him she knew that he would examine her there and then by way of performing a Pap smear. It does not amount to evidence that "she had been referred to the applicant, and had gone to see him, solely for a pap smear". 355Towards the end of her cross-examination CA gave the following evidence: Q. Ma'am, when you went to see the accused, as far as you were concerned, what were you going to see him for? A. On which particular event? Q. On the first occasion you saw him on 21 February? A. I went there to get a Pap smear done. Q. Are you sure about that, ma'am, that that was why you went to see him? A. Yes. I didn't go there for no sexual pleasure. If I had I wouldn't have gone to him. I'm sorry. Q. Did you go to see the accused to have your tubes tied? A. No, he was just the doctor that performed it. Q. Hadn't you been referred to the accused by Dr Salisbury for the operation of a tubal ligation, in other words, to have your tubes tied? A. I don't know whether I got referred to him or not. Would you like to see it, you're talking - I'm sorry, your Honour. Would you like to see what happened over my stomach. I'm here because he touched me sexually in my Pap smear, not my stomach (T113 - 114). 356At that point CA became emotional and, after a short break, the cross-examination continued on other subjects. 357CA said in her evidence in chief (T88) and in cross-examination (T95) that very early in the consultation on 21 February 2003 she told the applicant of her desire to have a tubal ligation. There was no reason for her to tell him that unless that was a reason for her to see him. 358In my view, it is not at all clear that CA was maintaining that the sole purpose of her referral to the applicant was for a Pap smear, or that she denied that she had been referred for the purpose of having a tubal ligation. 359The second point was that CA denied that the applicant had conducted a breast examination whereas the applicant's contemporaneous notes recorded that he did (AWS 10). In cross-examination when asked if she had any memory of the applicant doing an examination of her breasts she said, "[h]e didn't touch my breasts"; and she was "[a] hundred per cent positive" of that (T105). The applicant's clinical notes record, and it was his evidence based on those notes, that on examination "breasts normal" (Exhibit 32; T329). Assuming that the examination involved touching, this is too peripheral a detail to expect a woman to remember in relation to a medical consultation that occurred eight years previously. 360CA denied that she had been given "a brochure about the procedure of having your tubes tied" by the applicant at the consultation on 21 February 2003 (T106), whereas his contemporaneous notes record, and he confirmed in his evidence relying upon those notes, that he did (Exhibit 30; T329). This is of no significance. Expecting a person to remember being handed a brochure eight years previously is unrealistic. 361Reference was made (AWS [21] and [44]) to CA's evidence was that she was unaware that the applicant would be the doctor who would perform the tubal ligation procedure until she arrived at the hospital. It was pointed out in the written submissions for the applicant (AWS [21]) that his letter to Dr Salisbury dated the day of the consultation on 21 February included that "the admission papers" had been provided to CA that day (Exhibit 30; AB 821). 362Exhibit 8 is a consent form signed by both the applicant and CA and dated 21 February 2003. A line of type which reads "I have not been told that the procedure/treatment will be done by a particular doctor" has been crossed out. The applicant said that by crossing that out he was "indicating that it was me that was going to do the surgery". He also said "I would have told her that I was going to do the procedure" (T331). 363The fact that he had no actual recollection at all of the consultation, or of CA, does not inspire confidence that he did in fact tell her. In any event, her explanation that she proceeded to undergo the surgery, notwithstanding his conduct on 21 February 2003 is a reasonable one. It is understandable that she would think that nothing untoward could occur in the presence of other medical professionals. When she was required to return in a week to have her stitches removed, which would have required seeing the applicant alone, she chose instead to see Dr Salisbury for their removal (T92). 364I am not persuaded that there is anything significant in terms of adversely affecting the reliability of CA's evidence in relation to any of these asserted contradictions by the applicant's notes or independent evidence.

[57]

Other matters giving rise to a reasonable doubt 365There were a number of other features of the evidence that were said to support the proposition that there was a reasonable doubt as to the applicant's guilt. 366It was submitted that the touching upon which the allegation by CA was based took place in the course of a gynaecological examination where incidental (innocent) touching of the clitoris was possible. There was expert evidence by Dr Pesce as to this. He said that "any contact with the clitoris would be incidental if not accidental ... [and] would be relatively transient" (T195). In cross-examination, he agreed with the proposition that "a gynaecologist is vulnerable to [a] patient misinterpreting their actions in and around an area which is necessarily sensitive and private" (T218). 367This does not advance the case for the applicant. What CA described was far from "incidental" or "transient". At one point she said "He just kept rubbing my clitoris, and he didn't stop" and "I thought I was being masturbated" (T90). She maintained in cross-examination that this occurred for "around a minute" and denied a suggestion that it was "a matter of seconds" (T105). 368There was a general criticism of CA's evidence because it "showed a tendency to adopt sexualized language when describing what had occurred and the medical procedures conducted upon her" (AWS 10; [109]). At one point she referred to the applicant "fondling with something that was in the trolley next to the bed" (T88.16). There seems to be cause to either doubt the accuracy of the transcript or to consider that CA may have misspoken. The trial judge immediately indicated that he had not heard the answer and asked CA to speak up. When she repeated the evidence a short time later, the transcript records her has having said "fumbling around with whatever was on the shelf" (T88.46). 369CA said that at one point during the examination she felt something cold inside her vagina. When asked if she knew what it was she said: "A. I thought it was a new device or a machine. I don't use them, but I've seen like dildos with the little clitoris-rubbing thing that it's got on them. I had an impression that it might have been something like that" Q. Did you look down to see what it might have been in that area? A. No, because when I realised that he wasn't going to stop and that was no device, I just shut my eyes, I wriggled ..." (T89 - 90). 370Reference was also made to CA's evidence of being "pleasured" and saying "I've been stimulated before and I know how it feels". These need to be seen in context. The first appeared in answer to a question concerning her reason for not saying anything to the applicant at the time of the incident; she responded: "I thought the shock of it. I wasn't there to be pleasured in any sort of way. I was there for a Pap smear and a Pap smear only and the things that I was feeling I knew wasn't right" (T90). 371The context of the other response was that CA was being asked about whether the applicant used a glove, or gloves. She said: "Well, when I felt the scrape and my eyes sort of come back in focus, he had no gloves then, and it would have been - been to quick for him to put some on. When my clitoris was getting rubbed there was no feeling of rubber or anything like that. I've been stimulated before and I know how it feels" (T91). 372In each of these responses it would seem that CA was doing her best to convey to the court her perceptions of what she saw and felt. I do not see any reason to take an adverse view about her credibility on this account. 373It was submitted that CA had "a bone to pick" with the applicant (AWS [110]). She demonstrated anger towards him whilst she was giving evidence, apparently as a result of the lasting ill-effects of the tubal ligation surgery. It was not suggested that this motivated her to give dishonest evidence and, beyond speculation, it is not apparent how it bore upon the reliability of her evidence. 374Reliance was placed upon the applicant's notes generally as providing a "contemporaneous and reliable record of events as they took place" (AWS [111]). Where there is conflict between the oral evidence and the notes, clearly the notes should be preferred. The notes are, of course, silent on the question whether the applicant did, or did not, indecently assault CA. 375A number of submissions were made concerning the fact that CA did not raise her complaint about the applicant's conduct until 2008 when others had done so. 376It was contended that it seemed "that the complainant, at the time of the examination, did not know or believe that the touching was other than in the course of the gynaecological examination" (AWS 10). There is no evidence to support that proposition; indeed, the evidence is to the contrary. CA said that when the applicant put his hand on the top of her vagina she thought "there was no need to do that" (T89.4). She said that, when the applicant was rubbing her clitoris, "I thought I was being masturbated" (T90.15). She did not say anything to the applicant about what he was doing because of "the shock of it" (T90.25). She also said, "it was a feeling of disbelief that - that this wasn't happening, because there's - it wasn't right" (T91.5). 377It is true, as the submissions for the applicant observe (AWS 10), that when CA did raise her complaint in 2008 it was in the context of a substantial amount of publicity concerning the applicant. 378CA's evidence about being prompted to complain after seeing an article on the internet concerning the applicant has been referred to earlier. After she disclosed to her husband what the applicant had done she contacted a detective at Bega. She completed what she described as a "declaration form of what happened" which was sent to Bega police (CA was living interstate at the time). Subsequently an officer suggested that she should engage a solicitor. Ultimately she was referred to a firm of solicitors who she instructed to act for her in a medical negligence action concerning the tubal ligation surgery the applicant had performed (T94). 379CA was asked if she had spoken to any of the applicant's patients. She said she had not, and added "[t]he only one I've seen which has been on the computer or something would be [the complainant in the first trial], I wouldn't know any others" (T94). 380The reasons given by CA for not saying anything to the applicant about his conduct have been noted earlier. Her reasons for not complaining immediately to her husband or the police bears noting: Q. Did you say anything to him about what happened? A. Not just what happened no. He just asked me how things went and I just said, all that was different and I'd left it as that. In my mind I thought it was just me playing tricks, that - but in reality I knew that it wasn't. Q. Did you consider making any formal complaint about him at that time? A. As much as I could've, I knew no-one would've believed me. If someone come up and said, oh I've just been to the doctor and he's just rubbed my clitoris, no-one's going to believe you. At that time I wasn't doing real flash with the police down there [later revealed to have something to do with a custody dispute with her former husband], so I knew that they wouldn't have believed me. There was a few things happening down that way. Q. Yes? A. So I just kept it to myself (T91-92). 381It is well recognised in the criminal law that victims of sexual assaults may not complain immediately or even within a short period of time about what has occurred to them. There is statutory recognition of this in s 294 of the Criminal Procedure Act 1986 which, inter alia, requires trial judges to inform juries that "there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault": s 294(2)(b). 382The trial judge concluded as follows on the question of delayed complaint: What has occurred here, as I see it, is that [CA], like many victims of sexual assault, have, for good reasons as understood by them at the time, restrained themselves from immediate complaint. Sometimes, common sense tells us, this occurs because the event is shocking and concerns intimate matters the public discussion of which is difficult, and the very thought of which causes apprehension. I believe this occurred in relation to [CA]. My view is that the publicity about the accused, which erupted in 2008, psychologically allowed [CA] to unburden herself of matters about which she had privately been concerned over the years (AB 1384). 383A reading of the transcript of the entirety of CA's evidence indicates that this was a finding which was well open; the trial judge, of course, had the additional advantage of having seen her give evidence. 384The delay in complaint by CA had a number of ramifications. These included that the applicant was disadvantaged in defending himself, a matter dealt with under ground 4. They also included that CA's memory of matters of detail was imperfect. Whether her memory of the nature and duration of the touching by the applicant of her clitoris was imperfect is the critical issue. Her memory of peripheral detail may have a bearing upon that, but need not be determinative.

[58]

Conclusion in relation to the complainant CA 385I have had regard to CA's evidence as a whole, and have taken into account the evidence of the applicant and other independent evidence as it bore upon the accuracy of CA's account, and the evidence concerning the applicant's character. In the end I am not persuaded that it was not open to find beyond reasonable doubt that the applicant indecently assaulted CA in the manner alleged. 386Where there was conflict between her account and other evidence which may be accepted as reliable (for example, correspondence between Dr Salisbury and the applicant and the applicant's contemporaneous clinical notes), it concerned matters which were, in context, insignificant. CA's choice of language to describe her perceptions of what she saw and felt does not justify criticism of her and does not adversely affect her reliability. The delay in complaint was the subject of a perfectly acceptable explanation. There is no evidence of CA being influenced by the publicity that prompted her complaint to say anything in her evidence that she had not actually experienced. There is no suggestion of collaboration with other complainants or contamination by having heard the detail of their complaints. 387One thing that does emerge from a reading of the transcript is that CA stridently maintained an accurate recollection of something that one would expect a woman never to forget, that she was indecently assaulted in a more than momentary, transient or incidental way by her gynaecologist whilst alone with him in his consulting room. There is no merit in the suggestion that what might have been a momentary touching had, in the mind of the complainant between 2003 and 2008 become mistakenly, albeit innocently, a touching for a significantly longer period. It was not just a touching that she described; she felt rubbing which prompted her to think she was being masturbated. 388It was well open to the trial judge to be satisfied of the guilt of the accused in relation to the indecent assault of CA. I am satisfied to that standard myself.

[59]

Count 5 - RF 389As with count 3, the evidence plainly supports a finding that RF was under the authority of the applicant at the time that the indecent assault was alleged to have occurred. 390At trial, the Crown Prosecutor asked RF whether she ever gave consent to the applicant to touch her "in the area of the clitoris or on the clitoris?" She replied I don't know what to answer there because he said that I needed to have an ultrasound, so I agreed to having an internal ultrasound. So am I agreeing to him touching me like that or not, I don't know? I didn't like the way he touched me but like I said, I don't know if he was meant to have his hand and touching me the way that he did to get the instrument in... (T177) 391RF's uncertainty in her response does not demonstrate that she consented to deliberate touching for sexual gratification. Her consent was limited to the applicant performing a gynaecological examination and it is of no import when considering the element of non-consent that RF was unsure of what that entailed. 392The critical issue in relation to count 5 is again whether the touching that occurred went beyond what was involved in, and incidental to, the examination to which she had consented and was of such a nature and duration as to constitute an indecent assault. 393The evidence RF gave as to the nature and duration of the contact the applicant made with her clitoris has been set out earlier. At one point she said that he was "rubbing it" for what "felt like a long time". Again, the evidence of Drs Pesce and Korda supports a conclusion that, if that was an accurate account of the touching, what occurred could not have been contact incidental to the gynaecological examination. 394The applicant's case in relation to RF was that he had no memory of her consultations but that he denied having deliberately touched her clitoris; any touching that occurred would have been inadvertent with the manipulation of opening the labia (T351). It was submitted that, even if RF was honest in her belief of what occurred, that belief was mistaken and had been formed later, when she made her complaint and was aware of other allegations against the applicant (AWS [117]). It was submitted that she remained equivocal about whether the contact had been indecent, and that her account exaggerated the nature and duration of any touching. 395The Crown argued that the surrounding circumstances of the examination pointed towards the touching being indecent (CWS [93] - [96]). They included RF's evidence that the applicant had told her to "rip your knickers off", that he had helped her to remove her pants, and that she was not provided with a towel or sheet to cover herself so that she just used the clothes she had removed instead (T168 - 169). The applicant did not remember what he said but his usual practice had been to say something like "Well time to get your trousers off now" as he was getting the ultrasound machine and that a towel or sheet would be put across the patient's thighs or pubic hair (T351). 396If RF's recollection of such matters was correct it indicates a poor bedside manner of the applicant that would clearly have made her uncomfortable. But it does not advance the Crown's case that the applicant deliberately touched her clitoris for his own sexual gratification. 397RF's evidence that the applicant was "rubbing" her clitoris for what "felt like a long time" represents the Crown case taken at its highest. 398As to the nature of the touching, she also said she did not know "whether he was doing that just to try and open me up" (T170) and that she did not know "if he was meant to do that to make it [the ultrasound probe] go in" (T172). 399In cross-examination she agreed that the position of his hand was consistent with him "trying to separate your genital area, on either side" (T183). She also said "I don't know if that's how it was meant to have his hand and do what he was doing to get things in" (T184). She did not know if it was a knuckle, his finger or his thumb but "something rubbed across my clitoris" (T184) and in re-examination she said "I could just feel it like going across" (T193). Such responses raise the possibility of the touching having been incidental and inadvertent rather than deliberate. 400It is understandable that RF could not be precise about the duration of the touching, given that she was giving evidence about it eight years after the event. In addition to saying it "felt like a long time" she also said "it was just quickly like it didn't go on for my whole internal ultrasound or anything like that" and "it felt like a long time but I don't know" (T172) and "I don't know if it was for a minute, two minutes, three minutes. It wasn't like 20 minutes" (T183). Such imprecision in her recollection does not assist a confident finding that it was other than incidental touching. 401A matter of particular concern is RF's subsequent interactions with the applicant. It leaves open the impression that, whilst she may well have felt uncomfortable about what occurred during the examination, she did not feel a sense of violation of her sexual integrity. 402RF said that it was only after she perceived a sexual reaction from the applicant when he held her during the administration of the spinal block, prior to her hysterectomy surgery, that she decided that she never wanted to see him again. Another factor bearing upon that decision was "the way he looked in my pants in the bed [when she was still in hospital in the days following the operation] to see what the bleeding was like on my pad. And yeah I felt really uncomfortable with that too" (T187). 403RF was adamant that she did not see the applicant again for those reasons (T187). However, the objective evidence (the applicant's contemporaneous notes) indicates that the initial consultation and examination was on 2 May 2003; she returned to his rooms on 6 May; and she was admitted to hospital for the surgery on 8 May. They also indicate that she returned to his rooms on 20 May. 404In considering this issue I have taken into account that the applicant was, apparently, the only gynaecologist on the South Coast between Nowra and the Victorian border. Patients in that area who required gynaecological services were faced with the choice of seeing the applicant or travelling significant distances to see someone else. It is understandable then why a woman who felt uncomfortable about the conduct of the applicant nevertheless continued to consult him. However there is a notable difference in the response of CA, who was only prepared to see the applicant again because other medical professionals would be present, and RF who returned twice to see him alone in his rooms. 405RF's response to the question as to what prompted her to come forward with her complaint in 2008, five years after the event, is another matter that does not inspire confidence in her account. I have earlier referred to the experience of the criminal law of victims of sexual assault not feeling able to disclose their experience until a considerable period of time has elapsed. That is again acknowledged. Troubling, however, was RF's statement that it was only after hearing of another complainant coming forward that she felt "well maybe it wasn't my imagination" (T176). 406Having considered the totality of the evidence of RF and all of the evidence in the trial relating to it, I am left with a sense of unease. Whilst I have no hesitation in accepting that her evidence was truthfully given, it lacks the degree of detail and certainty that would support a finding beyond reasonable doubt that the accused was guilty of indecent assault. The evidence is insufficient to exclude as a reasonable possibility that what she perceived was a touching of her clitoris that was transient and incidental to the gynaecological procedure the applicant was performing. 407The Crown placed much emphasis upon the fact that the trial judge had the advantage of seeing and hearing the witnesses give their evidence whilst this Court is limited to reading the words on the pages of the transcript. The doubt that I have is concerned with the sufficiency of evidence. The advantage of the trial judge is incapable of resolving a doubt of that nature. 408The conviction and sentence for this offence should be quashed and a verdict of acquittal entered.

[61]

Ground 3 - The trial judge erred by placing too much reliance on the complainants' assessment years after the events as to how long they were touched on the clitoris in determining whether the contact with the clitoris could have been "inadvertent". 409These grounds were dealt with together in the applicant's written submissions and closely resemble the thrust of the applicant's argument in favour of ground 1. Under ground 2, it was submitted that the trial judge erred by failing to distinguish between the honesty of the complainants giving evidence and the accuracy of that evidence, given years after the events occurred. The applicant suggested that while his Honour had given consideration to, and ultimately dismissed, the influence of the 'bandwagon effect' on CA and RF, he had not specifically rejected the possibility that they had been influenced by suggestion from other allegations against the accused (AWS [124]). There is no merit in this submission. 410When delivering his verdict on count 3, his Honour said: It is difficult judgment to be made in cases such as this whether, due to publicity, the complainant [CA] is ventilating a genuine concern, or whether there is a reasonable possibility that the complainant is merely following a noisy bandwagon, or being influenced by the suggestion arising from allegations of other alleged misbehaviour... Conscious as I am of the 'bandwagon effect' argument, I am satisfied beyond reasonable doubt that it is not the explanation for this allegation. (Verdict and reasons 14-15) (Emphasis added) 411The same observation was repeated in relation count 5 concerning RF (Verdict and reasons 41). 412In his directions on law, the trial judge made particular reference to the "possibility that distortion in human recollection through delay affects the reliability of what the complainants now claim to recall." While his Honour specifically considered the honesty of both CA and RF, there is nothing to suggest that he conflated this with their reliability and accuracy. 413As to ground 3, nothing specific in the reasons for verdict were identified which would support the contention that the judge placed "too much reliance" upon the matter identified in the statement of the ground and I can detect nothing myself. 414Both these grounds fail.

[62]

Ground 4 - The trial judge erred in his approach to the delay in complaint and forensic disadvantage suffered by the applicant 415The final ground of appeal is that the trial judge erred when approaching the issue of delay in the complaints of CA and RF. In both cases, the incidents occurred in the first half of 2003, while the complaints to police were not made until 2008 and the two women did not give evidence at trial until March 2011. 416In relation to CA, the trial judge said in his reasons for verdict "I carefully bear in mind that the delay in complaint in this case has led to a situation where the accused cannot recall the women in question, so that he suffers the disadvantage of his lack of distinct recollection of matters which might possibly assist his defence. However, I expect that in any event his case would have been substantially the same: a denial that the conduct occurred" (VR17) (Emphasis added). 417His Honour adopted these comments when considering the count concerning RF (Verdict and reasons 39). The applicant submitted that this approach was incorrect at law. 418The Crown accepted that s 165B of the Evidence Act 1995 does not apply in a trial without a jury and so the common law principles apply: s 165B(1). Where there is a delay in complaint, the judge is to warn a jury that an accused may suffer a very real forensic disadvantage as a result: Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. A judge sitting alone must similarly heed the same warning: s 133, Criminal Procedure Act; Fleming v R [1998] HCA 68; (1998) 197 CLR 250 at [31]-[33] considering an earlier version of the Criminal Procedure Act. 419In support of this ground of appeal, the applicant relies on the statement of Gaudron, Gummow and Callinan JJ in Crampton v The Queen at [45]. Referring to the warning in Longman, their Honours said that simply because an accused's defence is an outright denial of the allegations against him, that will not be a reason for dismissing the relevance of the forensic disadvantage that may result from a delay in complaint. 420Counsel identified a number ways in which the applicant may have been disadvantaged by the significant delay between the alleged incidents and complaints. They included that he may have been able to recall the patients or the examinations, he may have remembered details that would explain the complainant's misapprehension, and he may have not had to rely on his notes. 421It was submitted that the trial judge erred by qualifying the impact of the delay in complaint on the basis that the defence case would have been substantially the same, regardless of the delay. But the submission cannot be accepted. In raising this ground, the applicant fails to note the extensive directions the trial judge gave himself in relation to delay the day before delivering his verdict. His Honour warned, in part, I must bear in mind the full effects of this delay on the ability of the [applicant] to defend himself by testing prosecution evidence or bringing forward evidence in his own case to establish reasonable doubt about guilt... 422After noting the specific forensic difficulties the delay would have caused the applicant, his Honour continued These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either testing the prosecution evidence or in bringing forward evidence to establish a reasonable doubt about his guilt or both of these things... Because the accused has been put into this situation of significant disadvantage, he has been prejudiced in the conduct of his defence. These directions identify the forensic difficulties faced by the accused and the warning is in accordance with the requirements of Longman. 423Furthermore, the statement of the trial judge in his reasons for verdict specifically adverts to this disadvantage that the applicant had suffered due to the delay in complaint and it exposes, albeit briefly, his reasoning. Read together with the directions on law they demonstrate that his Honour was alive to the disadvantage faced by the accused and took his own warning into account. 424This ground is without merit and must fail.

[63]

Conclusion with respect to conviction for aggravated indecent assault 425I propose the following orders:

Leave to appeal granted.
Appeal dismissed in respect of conviction for aggravated indecent assault of CA.
Appeal allowed in respect of conviction for aggravated indecent assault of RF. Conviction quashed and verdict of acquittal entered. 426THE COURT: The orders of the Court are as follows: 1.Application for leave to appeal against conviction for maliciously inflicting grievous bodily harm with intent (s 33 of the Crimes Act) granted. 2.Appeal against conviction for maliciously inflicting grievous bodily harm with intent dismissed. 3.Application for leave to appeal against conviction for two counts of aggravated indecent assault (s 61M(1) of the Crimes Act) granted. 4.Appeal against conviction for aggravated indecent assault (complainant CA) dismissed. 5.Appeal against conviction for aggravated indecent assault (complainant RF) allowed; conviction quashed; and verdict of acquittal entered. 6.Crown appeal against sentence allowed. 7.Sentences imposed in the District Court on 1 July 2011 set aside. 8.The respondent be re-sentenced as follows: (i) In respect of the offence of dishonestly obtain benefit by deception under s 178BA Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 1 year 3 months commencing on 1 June 2011 and to expire on 31 August 2012 with a parole period of 6 months to expire on 28 February 2013. (ii) In respect of the offence of aggravated indecent assault of CA under s 61M(1) Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole of 1 year 2 months commencing on 1 June 2012 and to expire on 31 July 2013 and a parole period of 4 months to expire on 30 November 2013. (iii) In respect of the offence of maliciously inflict grievous bodily harm with intent under s 33 Crimes Act 1900, the respondent be sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing on 1 December 2012 and expiring on 30 November 2014 with a parole period of 2 years to expire on 30 November 2016.
Specify that the first date upon which the respondent will be eligible for release on parole will be 30 November 2014.

Cases Cited (54)

[2012] HCA 14; (2012) 86 ALJR 549 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Chatterton v Gerson [1981] 1 QB 432 Cheung v The Queen (2001) 209 CLR 1 Collier v R [2012] NSWCCA 213 Cooper v The Queen [2012] HCA 50 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Darwiche v R [2011] NSWCCA 62 Dinsdale v The Queen [2000] 202 CLR 321 Eagle v Prosser [1999] NSWCA 166 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Fleming v R [1998] HCA 68; (1998) 197 CLR 250 Freeman v Home Office [1984] 1 QB 524 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 Gilham v R [2012] NSWCCA 131 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McDonald v Ludwig [2007] QSC 28 Mulloy v Hop Sang [1935] 1 WWR 714 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Oudomvilay v R [2006] NSWCCA 275 R v Balakrishnan Arvind, (NCSCCA, 8 March 1996, unreported) R v Benetiz [2006] NSWCCA 21; (2006) 160 A Crim R 166 R v Champion (1992) 64 A Crim R 244 R v Hammoud (2000) 118 A Crim R 66 R v Hemsley [2004] NSWCCA 228 R v Isaacs (1997) 41 NSWLR 374 R v Israil [2002] NSWCCA 255 R v Myers [2002] NSWCCA 162 R v Wilson [2005] NSWCCA 219 R v Wright (1997) 93 A Crim R 48 Reibl v Hughes [1980] 2 SCR 880 Richards v Rahilly [2005] NSWSC 352 Rogers v Whitaker (1992) 175 CLR 479 Savvas v The Queen (1995) 183 CLR 1 Sidaway [1984] 1 QB 493 Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 TC v R [2009] NSWCCA 296 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365 Wilmot v R [2007] NSWCCA 278 Winn v Alexander [1940] O.W.N 238 Texts Cited: Gillies, Criminal Law, 4th ed (1997), Thomson Reuters Somerville "Structuring the Issues in Informed Consent" (1981) 26 McGill LJ 740 Waller & Williams, Criminal Law Text and Cases, 11th ed (2009) LexisNexis Category: Principal judgment Parties: Regina Graeme Stephen Reeves Representation: Counsel: Mr P Hamill SC with Ms S Beckett (Applicant/Respondent) Mr P G Ingram SC with Ms H Wilson (Respondent/Applicant) Solicitors: Legal Aid Commission Solicitor for Public Prosecutions File Number(s): 2008/77882 Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-07-01 00:00:00 Before: Woods QC DCJ File Number(s): 2008/77882

[2008] HCA 52

[2007] HCA 59

[2008] HCA 18

[2007] QSC 28

(2008) 232 CLR 438

(2012) 86 ALJR 549

(2008) 236 CLR 358

(2001) 209 CLR 1

(2000) 206 CLR 161

(2006) 227 CLR 373

(2007) 235 CLR 521

(1998) 197 CLR 250