Solicitors:
Younes and Espiner Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2014/131948
Decision under appeal Court or tribunal: District Court of New South Wales, Sydney
Jurisdiction: Criminal
Date of Decision: 14 September 2016
Before: Huggett DCJ
File Number(s): 2014/131948
[2]
ex tempore Judgment
HOEBEN CJ AT CL: I agree with the reasons and orders proposed by Walton J.
WALTON J: The appellant seeks leave to appeal against his convictions for four counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW).
The appellant initially stood trial in the District Court of New South Wales sitting in Sydney before her Honour Judge Huggett and a jury of twelve. The appellant was charged on 12 counts in an indictment with respect to charges ranging over a period from 1 May 2012 to 1 May 2014.
Counts 1-6, 8-10 and 12 concerned charges of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act. Counts 7 and 11 concerned aggravated indecent assault, contrary to s 61M(1) of the Crimes Act. Each count concerned acts committed during the course of procedures undertaken by the appellant in a medical practice, namely, under his authority as a medical practitioner.
At the first trial, the jury returned a verdict of guilty with respect to counts 8-11 ("the four convictions"). Counts 8-10 concerned charges that, on 29 April 2014, the appellant had sexual intercourse with RG without her consent and knowing she was not consenting in circumstances of aggravation. Count 11 concerned a charge of assault with an act of indecency with respect to RG on that same day. The appellant was sentenced to 6 years' imprisonment with a non-parole period of 4 years. The non-parole period expires on 31 January 2021. The jury could not reach a verdict with respect to counts 1-7 and 12.
The appellant faced a second trial in the District Court, tried by judge alone. This trial concerned the "hung" counts from the first trial. Judge Berman SC found the elements of each of the charges for each hung count to have been demonstrated except for one count, count 8 of the re-numbered counts, with respect to which his Honour found the Crown had not proven the complainant did not consent to being touched in the manner charged. The appellant was found not guilty of the remaining counts by reason of mental illness, namely, bipolar affective disorder which his Honour found was in the manic phase at the time of the counts (it may be noted that although Berman DCJ found the mental illness operative at the time of all counts). His Honour found that, as a result of his mental illness, the appellant was not able to reason with a moderate degree of composure at the time of the offending conduct: R v El-Kheir [2018] NSWDC 245.
In coming to that view, Berman DCJ took into account the report evidence of Dr O'Dea (there being no other expert medical evidence called) and the behaviour of the appellant at the relevant time (such as erratic behaviour at home which included, inter alia, wandering from room to room carrying a soft toy and dragging himself along the carpet in a seated position) and the fact the allegations were made against the appellant after many years as a medical practitioner without a complaint being made against him.
The appellant brings the appeal against the four convictions at the first trial. He does so upon the basis of new or fresh evidence, being the psychiatric evidence adduced at the second trial, namely, the report and evidence of Dr O'Dea.
The Crown consented to the receipt of the new or fresh evidence, the four convictions being quashed and special verdicts of not guilty on the grounds of mental illness being entered. The Crown also sought orders under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Section 5 of the Criminal Appeal Act 1912 (NSW) relevantly provides that a person may, with leave, appeal "against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal".
Section 6 of the Criminal Appeal Act further provides that the court on any appeal under s 5(1) shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that "there was a miscarriage of justice".
Section 7(4) of the Criminal Appeal Act provides:
(4) If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as the court considers appropriate.
As was discussed in Carter v R [2019] NSWCCA 11 ("Carter") at [14], s 7(4) involves an appeal based on the evidence in the court below, subject to the power of this Court to permit further evidence.
The appellant sought to adduce in this appeal the report and evidence of Dr O'Dea. That evidence was not tendered in the first trial. It may be doubted that, in the absence of some explanation as to the appellant's approach to a mental illness defence at the first trial, the psychiatric evidence in question is fresh evidence. Nothing turns upon that issue, however, as in my view the evidence is of such cogency that it gives rise to reasonable doubt as to guilt; it should be admitted in the interests of justice: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63].
Similar factors weigh in favour of the grant of an extension of time.
On the evidence before the Court, there is little to distinguish the counts from the first trial to those in the second trial. They occurred over the same period of time and involved similar conduct. Dr O'Dea took into account the specific circumstances on 29 April 2014 regarding RG and the appellant's condition at the time as part of the overall opinion in his report. He also took into account the appellant's history and the accounts of the six complainants with respect to which the charges at the first trial related.
Whilst there were some features of the evidence which were suggestive of an understanding by the appellant that what he had done was morally wrong, senior counsel for the appellant was correct to submit that the evidence of Dr O'Dea, whilst accompanied by some qualifications, was cogent.
In the absence of contrary psychiatric evidence, a conclusion must be reached with respect to the charges now under consideration, that, at the time of the offences, the appellant was in a manic phase of his bipolar affective disorder and that, in the result, he was not able to reason with a moderate degree of composure at that time. As stated by Button J in Carter (at [300]), "the defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts".
In the circumstances, the appropriate orders are, in my view, those proposed by the Crown and consented to by the appellant as follows:
1. Time is extended to bring the appeal out of time.
2. Leave to appeal against conviction granted.
3. Appeal against conviction allowed.
4. The four convictions entered on 14 September 2016, concerning three counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, are quashed.
5. On each count, a special verdict of not guilty on the grounds of mental illness is entered.
6. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the appellant is to be detained in such place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by the due process of law.
7. The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.
8. The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide those bodies with the following documentation:
1. A copy of the judgment of this Court and its orders;
2. A transcript of these proceedings;
3. A transcript of the trial; and
4. A copy of the exhibits tendered at trial.
WILSON J: I also agree.
[3]
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Decision last updated: 03 July 2019