Ground 2
31 In my opinion this ground of appeal is misconceived. Both the doctors gave evidence as to their observations. Dr Brennan who practiced as a Staff Specialist in Forensic Medicine in the Emergency Department of Royal Prince Alfred Hospital and who was the Medical Director of four sexual assault clinics in the South-West Area Health Service has very considerable experience in the examination and assessment of the anatomy of victims of sexual assault. She was well qualified to express opinions in relation to the injuries observed in the perianal and anal areas of the complainant.
32 Dr Sharp was confined to an examination of magnified photographs of the injuries. Although it was open to the jury to accept the opinion of Dr Sharp, this was a matter for the jury. It could, as it must have done, accept the evidence of Dr Brennan that the injuries were consistent with non-consensual penile-anal intercourse and accordingly consistent with the account of the events given by the complainant.
33 This was not a Crown case based solely or even in large part on circumstantial evidence. The Crown case relied upon the evidence of the complainant to establish the essential ingredients of the first count. The evidence of Dr Brennan was called by the Crown to establish that there was expert opinion that the injuries observed on the complainant's perianal and anal structures were consistent with her allegations. However, Dr Brennan's evidence alone could not have established the Crown case which was dependent upon the complainant's evidence.
34 In these circumstances the appellant's submission that "the jury could only convict the appellant of the first count if they were satisfied beyond reasonable doubt [that] there was no other reasonable inference to be drawn from the evidence of Dr Brennan other than the act of intercourse was non-consensual" is not correct. There were a number of possible expert interpretations of the injuries, some, as the evidence of Dr Brennan indicates, being consistent with the appellant's guilt. Dr Sharp was of the opinion that some of the injuries were likely to have been caused by the accidental infliction by either the complainant or the appellant of fingernail scratches to her anal region. Although Dr Brennan said this was possible she believed it was "an unlikely possibility."
35 In these circumstances the jury was required to consider the expert evidence and determine whether it had the consequence of undermining the reliability of the complainant. If, after considering the evidence of the experts, in particular the evidence of Dr Sharp, the jury believed that there was a reasonable alternative explanation for the identified injuries leaving a reasonable doubt that the injuries may have been inflicted as alleged by the complainant, then the Crown would not have established the sexual assault charge.
36 The appellant further submitted that "the jury could only convict the appellant if they were convinced beyond reasonable doubt [that] the complainant's ano-genital injuries were caused by blunt force friction as not only a rational inference but the only rational inference indicative of non-consensual sexual intercourse". The appellant referred to Plomp v The Queen (1963) 110 CLR 234 and R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69 in support of this submission.
37 In my opinion this submission must also be rejected.
38 The Crown case in Plomp was entirely circumstantial and accordingly the inference of guilt was to be drawn from all of the relevant circumstances. In Taouk the Crown case, apart from some disputed elements of no materiality, was also entirely circumstantial.
39 Both cases are quite different to the present. The present case was not circumstantial and a direction necessary in such a case was not required.
40 The directions given by the trial judge included the following:
"The evidence of Dr Sharp serves three purposes in the defence case to the sexual intercourse charge. Firstly it seeks to undermine, indeed overturn the evidence of Dr Brennan and thereby weaken the prosecution case. Secondly the defence argued that the evidence of Dr Sharp provides an explanation for the injuries sustained by the complainant inconsistent with her account thereby undermining her credibility. If you were to find she was dishonest or inaccurate in her account of how this happened, you could not then be satisfied beyond a reasonable doubt as to the guilt of the accused on the sexual assault case.
Finally the evidence of Dr Sharp, says the defence, creates a reasonable possibility that the injuries to the anal and perianal area did not occur in a way that the complainant's evidence can account for and thereby creates a reasonable possibility the injuries she received occurred in consensual sexual activity. So that is the use it seeks to make of Dr Sharp's evidence. I went through that evidence in detail earlier. I do not intend to repeat it. Clearly you would associate it with the defence case."
41 Having earlier directed the jury that the Crown case could not succeed "unless you are prepared to accept evidence coming from the complainant which proves the basic or fundamental elements of the offence beyond reasonable doubt." His Honour later said:
"I do remind you at the outset that although there is no direct evidence which contradicts or competes with the complainant's evidence, bearing in mind that her evidence has been challenged, and seriously challenged, in cross-examination, before you can be satisfied beyond a reasonable doubt the crown has proved either of the two charges, that the accused had sexual intercourse with the complainant without her consent or that the accused assaulted the complainant the following day, you will have to be satisfied beyond reasonable doubt that the complainant's evidence on the essential propositions contained in the indictment is not only honest, but is also accurate."
42 When summarising the directions in relation to the expert evidence the trial judge said:
"The final direction I want to give you on expert evidence is this, when taken in conjunction with all of the other evidence in this case that you have accepted, if you think, having considered Dr Sharp's evidence carefully, that there is a reasonable possibility that the complainant's injuries were sustained as Dr Sharp has said, that is by fingernails, then you should proceed on that basis. In other words, if the expert opinion of Dr Sharp leaves open the reasonable possibility that the complainant was injured by the accused's hands gripping the complainant during sexual connection, you would acquit the accused because the Crown would have failed to prove the guilt of the accused in that the explanation it gives for the injuries does not account for fingernails."
43 In my opinion no other direction was required. This ground of appeal fails.