//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] NSWCCA 163
Court of Criminal Appeal (NSW)
2013-05-30
Hoeben CJ, Fullerton J, McCallum J, Mr P
Original judgment source is linked above.
Judgment 1HOEBEN CJ at CL: Nature of Appeal The appellant appeared for trial before Hock DCJ and a jury on 1 November 2011 in relation to five counts: Count 1: That on or about 17 January 1994 at Sydney in the State of NSW did have sexual intercourse with SB without her consent knowing that she was not consenting (s61I Crimes Act, 1900; max penalty 7 years - no SNPP because of date of commission of the offence). Count 2: That on or about 17 January 1994 at Sydney in the State of NSW did have sexual intercourse with SB without her consent knowing that she was not consenting (s61I Crimes Act, 1900; max penalty 7 years - no SNPP because of date of commission of the offence). Count 3: That between about 1 March 2009 and 30 April 2009 at Sydney in the State of NSW did assault CS and that he, at the time of such assault, did commit an act of indecency on CS (s61L Crimes Act, 1900). Count 4: That between about 1 March 2009 and 30 April 2009 at Sydney in the State of NSW did have sexual intercourse with CS without her consent knowing that she was not consenting (s61I Crimes Act, 1900). Count 5: That on 20 March 2009 at Sydney in the State of NSW did assault HL and that he, at the time of such assault, did commit an act of indecency on HL (s61L Crimes Act, 1900). 2Pre-trial proceedings took place between 1 - 3 November and the trial commenced on 7 November 2011. It concluded on 24 November 2011. The jury found the appellant guilty on counts 1 and 2 and not guilty on counts 3 - 5. 3On 20 April 2012 her Honour sentenced the appellant to imprisonment with a non-parole period of 1 year and 3 months, commencing 24 November 2011 and expiring 23 February 2013, and a balance of term of 1 year and 3 months to expire on 23 May 2014. The appellant was admitted to parole on 23 February 2013. 4The appellant appeals against his conviction for the offences in counts 1 and 2 on the following grounds: Ground 1: Given the course of events at trial, there was a miscarriage of justice occasioned in the failure to order separate trials of counts 1 and 2 from counts 3, 4 and 5. Ground 2: The learned trial judge erred in failing to direct the jury that the Crown was required to prove that penetration was carried out other than for proper medical purposes. Ground 3: The learned trial judge erred in failing to admit evidence of the appellant's qualifications and areas of study. Ground 4: The learned trial judge erred in the manner in which she directed the jury concerning the evidence of the appellant's "good character". Factual Background and Proceedings at Trial 5In relation to counts 1 and 2, the Crown case was that SB attended the appellant in January 1994 because she was suffering from a skin rash. She was dressed in her bra and underpants while the appellant performed acupressure on her. (Acupressure was the application by the appellant of pressure on a client's body and involved close bodily contact and touching.) It was the Crown case that in the course of this procedure, the appellant without warning twice digitally penetrated SB's vagina using one finger, each event occurring within seconds of the other. 6The Crown case in relation to counts 3 and 4 was that CS attended the appellant in March or April 2009 because she needed a medical certificate. She was taken to the appellant's consultation room and was asked to lie down on her stomach on the examination table. The appellant repeatedly squeezed her breast and told her that she had a cyst in her stomach. He then reached under her skirt and underpants and inserted one or two fingers into her vagina. He told her that he had been feeling for a cyst. 7The Crown case in relation to count 5 was that on 20 March 2009, HL attended the appellant for treatment. She took off the top part of her clothing and donned a gown. Following a method known as 'cupping', the appellant placed his right hand under her gown and rubbed her abdomen moving his hands up to her ribs and back down and tapping her on the sternum in various places. The appellant then used a hand to rub her right breast in a circular motion. HL questioned the appellant as to what he was doing and he answered that he was checking for cysts. 8The appellant's case in relation to each count was that the incidents there described did not occur. He said that when treating a patient with a skin irritation, he would wear gloves. He denied ever having issued backdated medical certificates to any patient. In relation to CS and HL, his receptionist, Ms Gao, would have been present during any treatment. 9Before the trial commenced, the Crown served a tendency and coincidence notice seeking to have the evidence of one complainant admissible in support of the Crown case in respect of the other complainants. This was done in order to support a joint trial of all five counts and to forestall any attempt to sever the counts. 10The tendency and coincidence, as particularised and sought to be proved by the Crown, was (Exhibit A - Tendency and Coincidence Notice): "(a) ... To act in a particular way, namely ... to sexually exploit patients under the guise of conducting legitimate Chinese medicine techniques". (The notice then proceeded to state that the Crown relied upon the following to support that tendency): "(i) The fact that the accused was a practitioner of Chinese medicine/ (ii) The complainants were all patients of the accused. (iii) The alleged assaults occurred during a consultation with the accused. (iv) The accused touched sexual organs. (v) None of the complainants presented with complaints relating to the areas that the accused is said to have touched. (b) To prove that the accused had a particular state of mind, namely to obtain sexual gratification from touching the complainants in that manner." 11During argument regarding the admissibility of the evidence on a tendency basis, the Crown conceded: (a) That the only acts of tendency and/or coincidence were the acts on the indictment. (b) That the passage of time between counts 1 and 2 involving SB, which occurred in 1994 and the other counts which occurred in 2009, weakened the Crown's contention that the evidence was admissible as tendency evidence. 12By way of notice of motion and supporting affidavit the appellant sought to sever the counts on the indictment: (a) That the counts as between each of the three complainants be tried separately; and (b) That the Crown not be permitted to adduce evidence of a tendency and coincidence nature in accordance with the tendency and coincidence notice. 13Her Honour delivered judgment on the application for separate trials on 3 November 2011. Her Honour said: "I am satisfied that what is established by the relevant parts of each complainant's statement is a tendency on the part of the accused to "sexually exploit his patients", that is to sexually assault female patients while purporting to treat them as a practitioner of Chinese medicine. I am also satisfied that the evidence establishes that the accused had a particular state of mind, namely to obtain sexual gratification from touching his patients in that way. The accused's counsel stated that the accused would deny any act of sexual assault took place in respect of any complainant. Therefore, the fact in issue in each count is whether the accused did the act which the complainant alleged. The tendency evidence is clearly relevant to whether the accused did conduct himself in this way. Given that each complainant is unknown to the other, the evidence has significant probative value in respect of the question whether each of the individual allegations is to be accepted." 14Her Honour deferred ruling on whether the evidence was admissible on a coincidence basis until after the evidence was complete. In the event the Crown did not renew its application concerning coincidence and that matter was never put to the jury. It is the tendency which forms the basis of the first ground of appeal. 15At trial CS gave evidence first. She said that she went with her friend, Rattiga H, to the appellant seeking backdated medical certificates which she needed to provide to her English language school to enable her to stay enrolled. She said that although she was not ill at the time, she permitted herself to be medically examined by the appellant. 16The effect of her evidence was: (a) The appellant carried out an examination during which he touched both her breasts, but not for very long. (b) At the time she did not think anything of the touching. (c) He was not wearing surgical gloves at the time he touched her breasts. (d) The appellant, as part of the examination, put his finger in her vagina. It was not inserted for very long. (e) She was not told in advance what was happening. (f) After he digitally penetrated her, he told her that she had a cyst in her lower abdomen. (g) The appellant then performed acupuncture on her stomach area. (h) Because she was shocked by the acupuncture, she shouted out to Rattiga H, who was sitting immediately outside the consultation room, "He did acupuncture on me". 17The effect of the evidence in cross-examination was: (i) She agreed that she was at risk of having her visa cancelled and an early departure from Australia if she breached her 70 percent attendance requirement at her college. This was why she needed a medical certificate. (j) She agreed that she did not want to lose her student visa and be deported to Thailand. (k) In relation to how long he digitally penetrated her, she said "He just put it in and then he pulled it out". (l) CS asserted that she did not want to have acupuncture and that she screamed out when the needles began to be inserted "I scream, I scream, I was shock, I scream and call out for my friend". At the time she screamed out, Rattiga H would have been about two metres away. She screamed in Thai. She said that Rattiga H called back to her "It's going to be - just let it happen". (m) It was put to her that she was never digitally penetrated and she stated "He did that before he did acupuncture on me". (n) CS stated that Rattiga H was also examined by the appellant. (o) She denied that the appellant had a female assistant with him when performing the acupuncture treatment. 18Rattiga H gave evidence in the Crown case. She said: (a) She did not leave the area where CS was being examined. (b) She was told by CS that the appellant had "inserted his fingers into her vagina". (c) She did not hear any noise coming from the room occupied by CS at the time she was with the appellant. 19Under cross-examination she said: (d) She was never examined by the appellant. (e) She never heard any shouting coming from the room occupied by CS. (f) After she left the appellant's clinic, CS did not complain to her that she had been examined or touched on either of her breasts. 20HL next gave evidence. The effect of her evidence was: (a) She attended the appellant because she had been referred by her neighbour, Cheryl C. (b) She was expecting to be given acupuncture. (c) She attended the appellant's clinic on two occasions. (d) On the first occasion she received treatment consisting of lying down on the table with her top taken off, where cupping and acupuncture (with needles inserted in her back on either side of her spine) took place. This was coupled with the use of a heat lamp and a procedure where she was required to stand astride a chair where acupressure was applied to her back. (e) She returned to the clinic a couple of weeks later. (f) In the interim she had experienced a fall and hurt her back. She told the appellant that she did not want any chiropractic manipulation. (g) On this occasion, she again took her top off and put on a gown. (h) No-one else was present in the consultation room. (i) The appellant then treated her by cupping and acupuncture. (j) She was treated with a heat lamp and the appellant proceeded to crack her back. She groaned with pain and felt dizzy and sick. (k) The appellant started tapping her on the throat with his fingers and then he put his hand up her gown and squeezed her stomach, going up to her ribs. He then started tapping up and down her sternum and "then he just brushed his hand around my right breast". (l) He was not wearing any surgical gloves at the time and she described the appellant's action as "just a rub" to her right breast. Later she said that the touching of her breast was "just like a wipe". (m) She said to him, "What do you think you're doing?" and he told her that he was "checking for cysts". She told him that she had cysts. (n) When she went home, she complained to her next door neighbour, Cheryl C, that the appellant had "groped me", but she refused to believe it. (o) While she did not immediately make any complaint to her husband, she did so a week later. She said that she did not give the appellant permission to touch her breast. 21Under cross-examination, the following took place: (p) She agreed that in her witness statement to the police, she said that the appellant's action consisted of a "circular motion around my right breast". (q) She was cross-examined about the use of the words "sexual violence" which appeared in statutory declarations by various people and which had been submitted to the court in support of HL. When asked whether she had told these persons that the appellant had subjected her to sexual violence she said: "I don't think I used those words". She agreed that the appellant had never used actual violence when he brushed or wiped her breast. 22In relation to the neighbour, Cheryl C, there was evidence in cross-examination from the police officer in charge that he had approached her for a witness statement, but she refused to provide such a statement. 23HL's husband gave evidence that HL had complained to him about a week after the incident. He said that in a statutory declaration that he swore he had used the words "sexual violence was performed on her" but he denied that those words had been inserted in the statutory declaration at the direction of HL. He agreed that the words used by her when she complained to him were "not touched, he groped me". 24HL made a complaint to another neighbour, Judith F, and this evidence was led by the Crown. In cross-examination, Ms F was asked questions regarding the use of the words "sexual violence by [the appellant]" in a statutory declaration which she had sworn. Ms F denied that HL had told her what to write in the statutory declaration. 25The Crown led evidence from Yang Gao, the appellant's receptionist at the clinic on the days that CS and HL attended. The effect of her evidence, in relation to CS, was: (a) That she was present throughout the whole treatment of CS, the touching of the nerve points and the administration of acupuncture. She did not see the appellant squeeze or fondle CS's breasts or digitally penetrate her, nor did CS ever cry out for help. (b) Rattiga H was not treated by the appellant on the day that CS was present at the clinic. (c) She recalled that when CS was being treated by the appellant, the door to his consultation room was open because her friend Rattiga H was sitting outside the room. (d) She did not hear CS cry out to Rattiga H, nor did she appear distressed or angry. (e) Medical certificates were not backdated. 26In relation to HL, the effect of the evidence of Yang Gao was: (f) She recalled HL attending the clinic and being treated by the appellant. She said that she was present in the treatment room at all times and that HL was never left alone. (g) She denied that the appellant had ever touched HL's breast. (h) She denied that HL had said to the appellant "What do you think you're doing?". 27The effect of the evidence of SB was: (a) SB first attended the appellant in January and February 1992, approximately four - five times to be treated for a skin rash which she had developed in relation to her arms. This was successfully treated with acupressure. (b) She again developed a rash on her arms and also on her lips. She went to the appellant for treatment between December 1993 and January 1994, probably four or five times. On each occasion, she received acupressure. (c) She attended the appellant shortly before leaving Australia to go to Switzerland, which was scheduled for 19 January 1994. She was taken to a room by the appellant with a closed door. She lay down on the table on her back. The appellant gave her acupressure. (d) She was lying down and the appellant stood positioned next to her head and asked her to put her arms behind her and put them on either side of his waist. (e) When the appellant stood close to her head she "thought that he had an erection at the time, but I can't be a hundred percent sure". Later in cross-examination she said "I wasn't a hundred percent certain that he had an erection. I wasn't sure". (f) The appellant continued with acupressure on the top of her torso. At this stage she was in her underwear, i.e. a bra and underpants. (g) While she was in her underwear, the appellant touched her near her breast. He then reached down and touched her near her genital area. The appellant then pushed her underwear aside by pushing it down and pressing on that area. (h) SB described what happened as follows: "After that, I mean, I don't remember how much time there was between that incident and the next. It was, you know, it could have been thirty seconds; it could have been a couple of minutes. But then he walked down to - to the other end of the bed and, like, he was doing acupressure on me then. He was standing sort of facing me and, like, without any sort of warning or anything, he put his finger in my vagina, he sort of moved my underpants out of the way and he put his finger in my vagina. He then withdrew it, he smelt his finger and he said something about, like, I did have a mild case of thrush at the time, and he - I think he said something about that. And he put it back in again, and he withdrew it and he looked at the fluids on his finger, and he said something about, you know, Dr Zhu is very worried about you because it was the last time - he knew it was the last time that I was coming there and so I wasn't continuing treatment. He apparently felt that I needed more treatment and, yeah, he said something about Dr Zhu is very worried about you, then he said something about taking herbs overseas with me, and that was the end of the consultation and he then left the room." (T.316.19, 11.11.11) (i) The appellant was not wearing gloves at the time. (j) The time between the first and second insertion of the appellant's fingers in her vagina, was a "matter of seconds". Later in cross-examination she said "A matter of seconds, like twenty seconds. Less maybe." (k) At no stage did the appellant indicate that he was going to put his fingers into her vagina, or that he intended to perform a vaginal examination. She did not give him permission to perform any such vaginal examination. (l) Under cross-examination she said that she never protested or made a complaint to the appellant about his conduct at the time. She did not tell him that she felt uncomfortable and that she was leaving. (m) She did not complain because she thought he was a doctor and that he penetrated her vagina "under the pretext of testing - you know, testing me to see if I had any sort of infection. I mean the fact that he even sniffed his finger for God's sake, he did it as a doctor". (n) She felt that the vaginal examination "wasn't warranted ... but at that time I felt very confused". 28The next day, SB told her friend PS what had happened at the appellant's clinic. She told her that the "Chinese herbalist that I was seeing stuck his finger up me", as well as having her put her hands on his waist. 29She and PS did not report the matter to the police at the time but did report it to the "Medical Complaints place". In her presence, PS phoned an organisation specialising in medical complaints and said that her friend had a complaint about the appellant. PS left her contact details, rather than SB's. Forms relating to making a formal complaint were sent to SB while she was staying in Switzerland. The forms were received by her about a week to three weeks later. She did not complete the complaint forms, as she found it difficult to put into words. 30When SB was living in Granada, Spain, in 1999, she was contacted by PS in order to make a statement to police regarding the incident because the police were investigating the appellant. SB provided that witness statement on 5 September 1999 and a further witness statement on 5 February 2010. 31PS gave evidence in the proceedings. The effect of that evidence was: (a) That a complaint was made to her by SB regarding her vaginal examination by the appellant. (b) That she contacted the NSW Medical Board on behalf of SB regarding the appellant. That letter sent to the Board was dated 21 January 1994 and was admitted as Exhibit "I". She also provided the Board with the appellant's business card. No details regarding the incident were disclosed in that letter. (c) PS recalled receiving communication from the police regarding SB's complaint about the appellant, but she could not recall whether she sent those documents directly to her overseas or not. 32The evidence in the appellant's case consisted of the testimony of the appellant, evidence of witnesses who were present when CS was at the clinic and evidence as to the appellant's good character. 33Kevin Sutton gave evidence that he was treated by the appellant on 31 March 2009, at the very time that CS was at the Clinic with Rattiga H. He said that he never heard any yelling or screaming when he was there and that the walls of the clinic were such that you could hear people speaking in the adjoining room. The appellant gave uncontradicted evidence that Mr Sutton was at the clinic at the same time as CS and Rattiga H were present. This was confirmed by a diary entry. 34The appellant gave evidence that he did not commit any of the offences in relation to CS. He denied that he provided backdated medical certificates. He denied that he ever examined her friend, Rattiga H. He denied that he ever touched CS's breasts. He denied that he ever digitally penetrated CS. He stated that he did not hear CS scream out. 35In relation to HL, he denied touching her breast and said that all that he did was apply a hot liquid to her sternum. In relation to SB, he denied digitally penetrating her without gloves. 36Character witnesses gave evidence. Dr Milena Maric, who had a five - six year old daughter gave evidence as to how the appellant had successfully treated her daughter and also a nephew with severe disability involving cerebral palsy. She said that the appellant had never held himself out as being a western trained doctor. 37Ms Josephyne Olivieri gave evidence that she had been treated by the appellant from 1993 to 2000, during which time she received acupressure for eczema and other ailments. She gave evidence that throughout her whole period of treatment, she found him to be totally professional and the charges against him were incomprehensible and outrageous, as far as she knew him as an individual. Ground 1: Given the course of events at trial, there was a miscarriage of justice occasioned in the failure to order separate trials of counts 1 and 2 from counts 3, 4 and 5. 38The appellant's original submission did not relate to her Honour's refusal to grant a severance of counts 1 and 2 from the balance of the counts. In that regard, the appellant accepted that the decision of the trial judge was made on a proper basis, i.e., that the evidence of the three complainants had significant probative value (s97 Evidence Act 1995). The appellant argued that subsequent events at trial revealed that the joinder of all counts brought about a situation which constituted a miscarriage of justice. 39After the appellant's written submissions were filed, the Court of Appeal of Victoria delivered its decision in Dupas v The Queen [2012] VSCA 328. That judgment held that the decision of this Court in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 was wrong. On the basis of the Dupas decision, the appellant withdrew his concession that her Honour had properly applied s97 of the Evidence Act and challenged the failure to sever counts 1 and 2 from the balance of the counts on that basis as well. The appellant now argues that her Honour fell into error in failing to properly apply the Evidence Act. 40This Court recently considered both R v Shamouil and Dupas v The Queen in R v XY [2013] NSWCCA 121. In that case (Basten JA, Simpson J and myself, Blanch J not deciding and Price J contra) held that R v Shamouil correctly stated the law in New South Wales and should be followed. The matters raised in Dupas v The Queen were extensively analysed by Basten JA and Simpson J in XY. No useful purpose would be served by repeating that analysis here. This Court should follow the decision in XY. Accordingly, the appellant's modified position of challenging her Honour's refusal to sever counts 1 and 2 from the balance of the counts should be rejected. I accordingly approach this Ground of Appeal on the basis of the appellant's original submissions, i.e. that subsequent events have brought about a situation whereby the failure to sever counts 1 and 2 constituted a miscarriage of justice. 41The appellant relied upon the decision in R v Demirok [1976] VR 244 at 251 where the Full Court said: "Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the Appeal Court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretions miscarried, but simply that because of the course of events which developed during a trial, the nature of the trial constituted such a miscarriage." 42The appellant submitted that in retrospect the evidence in the cases concerning CS and HL was found to be unreliable. Even though the jury entered verdicts of not guilty in relation to counts 3 - 5, it necessarily considered the evidence in those matters which suggested that the appellant had sexually assaulted two other complainants besides SB. The appellant submitted that the jury may well have been satisfied of the appellant's guilt in relation to counts 3 - 5 on the balance of probabilities, but not satisfied beyond reasonable doubt. In those circumstances, there was a real risk of unfair prejudice to the appellant when the jury came to consider the evidence in relation to counts 1 and 2. 43The appellant submitted that because of the verdicts of not guilty in counts 3 - 5, it became clear in retrospect that the criteria by which the tendency evidence had to be tested was not made out. In that regard, the appellant relied upon the observations of Priestley JA in R v Zaidi (1991) 57 A Crim R 189 at 205 where his Honour said: "In a general way, the point was latent in the unsuccessful application for separate trials. Most importantly, however, there seems to me to have been a real likelihood that the jury were influenced in arriving at their three guilty verdicts by evidence that should not have been considered by them in reaching each of those verdicts." 44The appellant submitted that had the evidence in relation to the complaints by CS and HL not been before the jury, it would have considered the case concerning SB on its own as if it were the only incident. That meant that the significant and largely unexplained delay in the prosecution of the SB complaint, would have to have been considered by the jury. This was not a case where a child complainant made a complaint well after the event as an adult and which was explicable on that basis alone. 45The appellant submitted that because in retrospect the evidence of CS and HL should not have been before the jury in the SB matter, the possibility of the jury misusing that evidence could not be satisfactorily dealt with by appropriate directions. The appellant submitted that as a result, a miscarriage of justice had been occasioned warranting the intervention by this Court and a new trial. 46By way of further background, it should be noted that on 24 November 2011 at approximately 11.11am the jury sent a note indicating that it had reached verdicts on counts 1, 2 and 5. With the agreement of counsel, her Honour then took the verdicts (guilty on counts 1 and 2 and not guilty on count 5). Her Honour then administered a "Black" direction. Less than an hour after retiring to consider their verdicts, the jury returned with not guilty verdicts on counts 3 and 4. 47For the reasons stated in XY, and as originally conceded by the appellant, the tendency evidence was properly admitted. In her summing up, her Honour included the usual instruction about determining each count separately and a direction that tendency evidence could only be relied upon in respect of any count if it were established beyond reasonable doubt. 48The relevant part of the summing up was: "Although you do have three separate complainants, and as I have said you do have to consider each count separately and independently, these trials involving the three separate complainants are being held together because the Crown alleges that the accused had a tendency to act in a particular way. That is that he had a tendency to sexually exploit patients under the guise of conducting legitimate Chinese medicine techniques. That is that the accused had a tendency to use the female patients for his own sexual needs. In addition the Crown alleges that the accused had a tendency to have a particular state of mind, namely to obtain sexual gratification in touching the complainants in the manner that they alleged that he did. By proving that the accused had this state of mind and was willing to act on it, the Crown argues that you will find it more likely that he committed the other counts in the indictment. In other words, if you are satisfied of two things which I will take you to in a moment, you can use this tendency evidence across the indictment in respect of all five counts. The evidence of the accused having this tendency, that is to sexually exploit patients in this way, can only be used by you in the way the Crown seeks you to use it if you make two findings beyond reasonable doubt. The first finding is that you must be satisfied beyond reasonable doubt that at least one of the counts has been proved. You must be satisfied beyond reasonable doubt that one or more of these counts on the indictment has been proved. If you do not find any of the counts on the indictment has been proved beyond reasonable doubt you put aside any suggestion by the Crown that the accused had this tendency to sexually exploit patients in this way. That is as a matter of logic. Obviously if you do not find any counts proved beyond reasonable doubt, the accused is not guilty on every count and you would never get to the tendency evidence at all. But if you do find beyond reasonable doubt that one or more of these counts did occur, then you would go on to consider the second finding. You ask yourselves whether from that count or those counts that you have found proved beyond reasonable doubt whether you can also conclude beyond reasonable doubt that the accused had this tendency to sexually exploit patients in this way. If you cannot draw that conclusion beyond reasonable doubt then again you must put aside any suggestion that the accused had such a tendency. But if you find one or more of the counts to have been proved beyond reasonable doubt and if you conclude beyond reasonable doubt that the accused had this tendency to sexually exploit the patients then you can use that in considering whether the accused committed the other offences charged. In other words, if you are satisfied beyond reasonable doubt that the accused had this tendency to sexually exploit the patients, that evidence can be used by you when you are deciding whether the accused committed the other counts in the indictment. You may use the tendency evidence where proved beyond reasonable doubt as a step in the proof of the prosecution case. You are entitled, should you think it appropriate, to use that evidence in support of the other charges on the indictment involving other complainants." (SU 32.5 - 34.1) 49In the course of summing up the defence case, her Honour said: "Mr Lavac argued of course that you will never get to this tendency reasoning because you will not be satisfied beyond reasonable doubt of any count on the indictment. And before you can get to the tendency reasoning as I said to you, you must be satisfied beyond reasonable doubt that one of these counts did take place. As I said for that reason Mr Lavac suggested you never get to that position. In other words, your verdict would be not guilty on each count." (SU 35.2) 50The facts of this case and the findings of the jury are quite different to those in Zaidi. Here the jury clearly considered each complainant separately, as directed by her Honour, hence the initial finding of guilty in respect of counts 1 and 2 and not guilty in respect of count 5. A reasonable inference is that the delay in relation to the receipt of verdicts for counts 3 and 4, occurred because the jury were considering the consequences for counts 3 and 4 of the finding of guilt in respect of counts 1 and 2. Accordingly, to the extent that tendency evidence played any part in this trial, it was in respect of counts 3 and 4. 51The findings of the jury were consistent and in accordance with the evidence. In relation to counts 1 and 2, there was immediate complaint, action taken as a result of the complaint and consistency in the content of the complaint between 1994 and the date of trial. The Crown case in relation to SB was very strong. The delay was not due to any conduct or hesitation on the part of SB. 52By way of contrast, there were discrepancies in the Crown case in relation to HL with a real possibility that the brushing of the breast was due to inadvertence rather than deliberate conduct on the part of the appellant. 53In relation to counts 3 and 4, there were glaring inconsistencies in the evidence of CS. A particular example was her evidence of screaming out when acupuncture was applied, which was not supported by her friend, by Ms Gao, nor by Mr Sutton. Even the finding of guilt in respect of counts 1 and 2 and the availability of tendency evidence arising therefrom was not sufficient to overcome the problems in the Crown case with respect to counts 3 and 4. 54There is no reason to surmise, as the appellant does, that the jury did not follow the directions of her Honour in the summing up. On the contrary, the sequence of events is strongly suggestive that it did. The clear rejection by the jury of the Crown case in respect of counts 3, 4 and 5 and its inherent weakness makes it likely that it had little regard to that evidence when considering counts 1 and 2. 55This ground of appeal has not been made out. Ground 2: Failure to direct the jury on "for proper medical purposes". Ground 3: Failure to admit evidence of the qualifications and area of study relevant to the issue of whether penetration was carried out other than for proper medical purposes. 56The relevant sections of the Crimes Act in 1994 were as follows: "61H(1) For the purposes of this Division, sexual intercourse means: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) Any part of the body of another person, or (ii) Any object manipulated by another person, except where the penetration is carried out for proper medical purposes ..." "61R(2) For the purposes of sections 61I, 61J and 61JA and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated ... (a1) A person who consents to sexual intercourse with another person under mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to consent to sexual intercourse ..." 57By way of further background, after her Honour had completed her summing up, a note was received from one of the jurors. It was marked for identification 55 and was in the following form: "My continuum (revisited): The accused did the alleged deeds with sexual intent and no warning to the client The accused did the alleged deeds with clinical/diagnostic intent and no warning to the client There is reasonable doubt that the accused did the alleged deeds at all Are we to understand that the law views these two scenarios identically. Both are called sexual intercourse and act of indecency and it would be irrelevant for us to make this dichotomy?
The judge did not answer my question directly. She said that she would do so, if I wasn't satisfied that I had received an answer by the close of her 'summing up'. After her summing up, I came away with the impression that the answer to the question, that the law views these two scenarios identically - both are called sexual intercourse and act of indecency and it would be irrelevant for us to make this dichotomy was, 'that's right'. I now want to ask the judge clearly for this direction. If I believe that the accused put his finger into Claimant 1's vagina twice without consent with clinical/diagnostic intent rather than sexual intent, I must still return a guilty verdict. Is that correct Your Honour?" 58Her Honour discussed the matter with both counsel. With their consent she answered the question raised as follows: "Members of the jury I have had a note and I am not sure whether all of you have read the note or not, but I propose to answer the question set out in the note. I apologise if I did not answer it directly during the summing up but I will attempt to do so now. The first scenario on the continuum is that the accused did the alleged deeds with sexual intent and no warning to the client, the middle scenario is that the accused did the alleged deeds with clinical diagnostic intent and no warning to the client, and the third scenario is that there is reasonable doubt that the accused did the alleged deeds at all. I just want to deal firstly with the middle scenario. As a matter of law, if a person inserted his finger into a woman's vagina for proper medical purposes, then that is not sexual intercourse. However, I did not include that in the definition section at the bottom of the page for you, because that issue simply does not arise in the circumstances of this trial. That is, as you are well aware, the Crown case is that the accused did insert his finger or fingers into SB's vagina, the subject of counts 1 and 2 and the accused's case is that he did no such thing. There is absolutely no room for the middle scenario: that the accused did insert his finger or fingers into SB's vagina, but he did so with clinical or diagnostic intent. There is no evidence of that whatsoever. The Crown does not have to prove what the accused's intent was, and I remind you that the Crown does not have to prove that there was even a desire for sexual gratification. If you are satisfied beyond reasonable doubt that the accused did insert his finger or fingers into - his finger in the case of SB - into her vagina, then you would move to the second question in respect of those two counts." (SU 52 - 53) 59The appellant submitted that the jury should have been directed that "sexual intercourse" as an element of an offence under s61I required the Crown to prove that penetration was not carried out "for proper medical purposes". The appellant submitted that her Honour erred when she directed the jury that the "middle scenario", i.e., clinical/diagnostic intent raised by the jury note (MFI 55), did not arise for consideration. 60The appellant submitted that the issue did arise. He based this submission on the evidence of SB at [27(b)] hereof. He submitted that once the jury had rejected the appellant's sworn denial that he digitally penetrated SB, the following evidence had to be considered: (a) SB attended the clinic of the appellant, who was a practitioner in traditional Chinese medicine for treatment regarding a pre-existing skin condition. (b) During his treatment of her by acupressure, without warning he put his finger in her vagina. (c) He withdrew his finger and smelt it and commented that SB had a thrush infection. (d) SB did in fact have a thrush infection. (e) The appellant then inserted his finger in her vagina a second time and withdrew it and looked at the fluid/discharge on his finger. (f) The appellant commented that he was worried about her continued treatment as he was aware she was going overseas and told her that he was worried about her as he knew (because she had told him) that it was the last time that she was visiting him. He wanted her to take herbs with her overseas. (g) The digital penetration was for a few seconds at a time. 61The appellant submitted that by reference to that evidence, there was an overwhelming inference available that the appellant was conducting an examination of the fluids found in SB's vagina and attempting to deduce from sight and smell what the problem was for therapeutic purposes. The appellant submitted that this was a reasonable possibility arising from the evidence adduced in the Crown case, i.e. that such an examination was carried out for proper medical purposes. The appellant submitted that this remained a live question in the proceedings. 62The appellant submitted that the error by her Honour was to relieve the Crown from its onus of proving beyond reasonable doubt that, if the jury had accepted the evidence of SB that she had been digitally penetrated, the appellant did the act otherwise than for proper medical purposes, i.e., the Crown had to negative that proposition. It had failed to do so and therefore had failed to make out its case against him. 63The appellant relied upon the statements of principle in R v Forsti [2010] ACTSC 85 per Gray J when considering an identically worded provision being s92(b) Crimes Act (ACT): "82 However, there is a more fundamental aspect of the charges in counts four and five that the prosecution has failed to make out even if the complainant's evidence as to the event occurring is accepted. The definition of sexual intercourse, as I have earlier noted, contains the exception of penetration carried out for a proper medical purpose. Although expressed as an exception, it remains the fact that the prosecution must prove beyond reasonable doubt that the accused's intention in performing the act of penetration was to do so other than for a proper medical purpose. ... 84 Suspicion or the possibility that the accused had an ulterior motive is, in my view, not sufficient to discharge the onus on the prosecution to prove beyond reasonable doubt that the accused intended an act of penetration other than for a proper medical purpose." 64He also relied upon R v Zaidi where Priestley JA (with whom Allen and Badgery-Parker JJ agreed) said at 209: "The whole of the exception as stated in section 61I(i) is clearly directed to the purpose with which the penetration is carried out by the penetrator; if that purpose is a proper medical one, then the exception applies. It follows that in cases where the question arises, the Crown must prove as one of the ingredients in the charge that the subjective purpose of the penetrator was not a proper medical one. That is an essential ingredient for the Crown to prove, although it need not prove anything more and although proof will sometimes consist of inferences to be drawn from the external actions of the penetrator. Frequently, it will only be from those external actions (including whatever is said) that the subjective purpose will be able to be inferred, one way or the other. I do not see from the materials in the appeal papers that it was ever clearly brought to the jury's attention that for them to find the appellant guilty of the sexual intercourse charges, it was necessary for them to find beyond reasonable doubt that the appellant did not have, subjectively, a proper medical purpose in penetrating the patients in his examinations of them. It may well be that had the necessary direction been given to the jury they could have been directed, as they were in regard to consent, that in approaching the factual questions they had to consider in dealing with this ingredient of the charge, there would be little difficulty, in light of the way the case was conducted, in finding the ingredient proved. ..." 65In support of this submission, the appellant further relied upon Pemble v R [1971] HCA 20; 124 CLR 107 where at 117 - 118 Barwick CJ said: "... Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part." The appellant relied upon the observations of Menzies J at 132-133 and Owen J at 141 in that case. 66The appellant submitted that there was no evidence in the Crown case regarding the scope and nature of traditional Chinese medicine, nor was the appellant cross-examined as to his purpose for digitally penetrating SB. The appellant submitted that in the circumstances of this case, her Honour had failed to direct the jury on an essential element of the offence under s61I, namely that "sexual intercourse" fell within the chapeau of s61H(1)(a) and that it must be satisfied beyond reasonable doubt that penetration was carried out otherwise than for proper medical purposes. 67By reference to Pemble, the appellant submitted that her Honour was not relieved of the obligation to give that direction by the stance of the Crown Prosecutor and/or trial counsel for the appellant. The appellant submitted that the fact that the appellant denied that the digital penetration took place did not of and by itself, relieve her Honour of the obligation to direct the jury on a matter of basic importance. The appellant submitted that the note from the juror (MFI 55) highlighted that there was some discussion of this subject in the jury room and of itself, warranted a direction. The appellant submitted that even leaving aside MFI 55, Zaidi required that such a direction be given as a matter of law. 68The appellant submitted that even though the point was not taken at trial, because an important issue of law was involved, leave should be given pursuant to rule 4. 69With respect to Ground 3, both as a separate ground of appeal and in support of Ground 2, the appellant submitted that her Honour erred in rejecting the evidence tendered on behalf of the appellant regarding his qualifications from China on the basis that such evidence was irrelevant. The appellant submitted that such evidence went to an issue for determination by the jury, i.e., whether the penetration was for a proper medical purpose. 70The appellant submitted that the erroneous rejection of this evidence deprived the jury of relevant and probative evidence on an issue which was subsequently canvassed by the question from one of the jurors (MFI 55). 71It is convenient to deal with Ground 3 first. The issue of documentation regarding the appellant's Chinese qualifications first arose in the course of the tender of MFI 31 (which subsequently became Exhibit 8). After argument, the tender of that document was allowed. Exhibit 8 comprised a list of courses said to have been undertaken by the appellant at the Sun Yat-Sen University during the period 1975 - 1978. 72The documents which were rejected, and to which Ground of Appeal 3 relates, were MFI's 33 and 34. MFI 33 comprised one page of Chinese script and one page of an English translation. It purported to relate to a course the appellant did in 1972 and 1974 in acupuncture. In relation to that document, the following exchange took place between counsel for the appellant and her Honour: "HER HONOUR: How does MFI 33 which purports to be translated to read that he did a course between 72 and 74 in acupuncture, explain to the jury why he has the letters MBBS on a card. LAVAC: Well he's also done a course in China in acupuncture your Honour. HER HONOUR: So what? LAVAC: Well why then would my friend object to that document? HER HONOUR: Well there are a number of bases to the objection, the first is that the Crown isn't in any position to make a concession as to the accuracy of the translation because he hasn't seen it before today and he hasn't had any expert look at it. That's the first basis. How are you going to deal with that? LAVAC: I can't call any expert beyond what we've got in this document your Honour. HER HONOUR: Then I reject the tender of MFI 33. It doesn't seem to me to be relevant in any way to the issues in the trial ..." 73MFI 34 comprised an A3 document (in Chinese) and an English translation, dated 2 April 1990, which set out a list of "subjects" and "final assessments" in respect of the Zhong Shan Medical School. It turned out (at T.527) that the "Zhong Shan Medical School" had subsequently been renamed the Sun Yat-Sen University. Many of the subjects listed on MFI 34 were included in Exhibit 8. 74Accordingly, there was before the jury a list of subjects which the appellant had completed to University level in China. It was never made clear to what extent, if at all, the contents of MFI 33 and 34 would have added to that information. Moreover, in re-examination the appellant gave evidence without objection to the following effect: He had studied for two years in China to qualify for "that diploma" in Chinese medicine and acupuncture. He had studied for 10 months in "the Chinese Medicine Hospital". He had studied for another 3.5 years in the Zhong San Medical Institute. He had studied for another 3 years for "a Masters Degree" in acupuncture (T.661). 75Because the defence were not in a position to properly prove the contents of MFI 33 and 34, and did not subsequently attempt to rectify that deficiency, the documents were properly rejected by her Honour. As her Honour also pointed out, their relevance was problematic. To the extent that the defence required some evidence as to the qualifications of the appellant, and his capacity to administer Chinese medical techniques to patients, that evidence was available from Exhibit 8 and from his oral evidence. 76In any event, her Honour did not finally reject the tender of MFIs 33 and 34 but deferred making a ruling. Accordingly, it was not incumbent upon her Honour to return to the documents (Madden v R [2011] NSWCCA 254 at [28] - [29]). If the appellant's counsel wished to press their tender then it was up to him to do so, not the trial judge. Even if MFIs 33 and 34 had been admitted, it is difficult to see how they were relevant to the issue raised in Ground 2. 77Ground of Appeal 3 has not been made out. 78The need for her Honour to give the sort of direction sought by the appellant with respect to "proper medical purpose" would only arise if the issue was before the jury, i.e., if the issue were raised by the evidence. This was recognised by Priestley JA in Zaidi in the passage relied on by the appellant when he said: "It follows that in cases where the question arises, the Crown must prove as one of the ingredients in the charge that the subjective purpose of the penetrator was not a proper medical one." (Emphasis added) In this case this issue was not raised, either by the Crown or the appellant. On the contrary, on a number of occasions counsel for the appellant disclaimed any reliance upon it. 79It was not for the Crown to adduce evidence concerning the scope and nature of the practice of traditional Chinese medicine, nor to cross-examine the appellant as to his "purpose" for inserting his finger into SB's vagina. Not only was there no evidence to this effect, but there was no suggestion at any time in the trial that conduct of this kind formed part of traditional Chinese medicine. 80This is to be contrasted with the facts in Zaidi, where the issue was fairly and squarely raised because one of the complainants attended the medical practitioner because of a vaginal discharge. As a result, in that case, there was a live issue as to whether the vaginal penetration by the medical practitioner was or was not for a "proper medical purpose". 81In this case, SB attended the appellant complaining of a rash on her arms and lips. The appellant inserted his ungloved finger into her vagina without warning, or obtaining consent, not once but twice, firstly smelling his finger and then examining the discharge on it. The fact that SB commented "Yes I have some thrush" gave no support to a submission that the examination was done by way of "proper medical purpose". SB was not there for that reason. She had never asked the appellant to investigate anything to do with her vagina. There was no evidence that acupressure for a skin rash involved vaginal penetration. There was no evidence of any medical connection between treatment for a skin rash and the appellant digitally penetrating her vagina. 82The fact that one of the jurors asked a question relating to this issue is interesting, but does not of itself establish that the question of "proper medical purpose" arose as a genuine issue in the proceedings. This is to be assessed by an objective analysis of the evidence. As the appellant conceded, the only evidence on the issue came from SB when she described the incident ([27(h)] hereof). In the absence of other evidence, that description could not be found to give rise to the issue. 83Pemble does not assist the appellant's submission. As was stated by the Court in Carney v R; Cambey v R [2011] NSWCCA 223 (Whealy JA, James and Hoeben JJ): "25 The expression "a viable case of manslaughter to be left to the jury" (as stated by Gleeson CJ and Callinan J) is a useful shorthand expression expressing the correct approach to be taken. Similarly, the question is often asked "was manslaughter open to be left". That too is a useful shorthand manner of approaching the issue. While we consider that the correct position is more akin to that urged by the Crown on the present appeal, namely whether a verdict of manslaughter was "reasonably open" on the evidence, we would prefer to state the proper approach (based on Hayne J's statement) in the following terms: "A viable case of manslaughter means that it was open on the evidence led at trial for the jury to conclude that the appellant was not guilty of murder but was guilty of the alternative charge of manslaughter."" (The quotations are from Gillard v R [2003] HCA 64; 219 CLR 1.) 84The facts in Pemble provide a good illustration of the principle. There the defence had eschewed any reliance on manslaughter. The proposition put to the jury was murder or nothing. However, the case put by the Crown to establish murder, clearly allowed a finding of manslaughter as an alternative so that it was necessary in the interests of justice for that to be explained to the jury. Such is not the case here. In the words of Carney & Cambey a viable case giving rise to a "proper medical purpose" was not open on the evidence led at trial. 85If I am incorrect in that conclusion, after carrying out my own independent assessment of the evidence and making due allowance for the natural limitations that exist in an appellate jurisdiction, I am satisfied that the appellant has been proved beyond reasonable doubt to have committed the offences upon which he was convicted (Weiss v The Queen [2005] HCA 81; 224 CLR 300). Accordingly, if necessary, I would apply the proviso under s6(1) of the Criminal Appeal Act 1912. 86The question whether no substantial miscarriage of justice has actually occurred is to be answered having regard to all the circumstances of the trial, including the strength of the prosecution case and the relative merits of the defence case. In my opinion, the Crown case in relation to SB was more than cogent, it was compelling. In particular, there was immediate complaint, corroboration and action taken pursuant to that complaint. Over the years there was consistency in her reporting of what occurred. 87It follows that Ground of Appeal 2 has not been made out. If I am incorrect in that assessment, I would still reject Ground 2 in reliance upon the proviso. Ground 4: The learned trial judge erred in the manner in which she directed the jury concerning the evidence of the appellant's "good character". 88Her Honour said the following concerning the appellant's good character: "The accused has also called evidence to establish that he is a person of good character. You will recall that there is evidence that he has no prior criminal conviction and witnesses such as Dr Maric, Ms Olivieri and other people have spoken highly of him, both in terms of his treatment of them and also more generally. Essentially that evidence has not been challenged by the Crown. In the light of that evidence, it is open to you, it is clearly open to you, to find that the accused is a person of good character. The law provides that the accused is entitled to have you take that evidence into account in his favour in the following way. The fact that the accused is a person of good character entitles you to consider the improbability of his having committed the offences alleged. In other words, you are entitled to take his good character into account on the question of his guilt. Secondly, the accused has given evidence in the trial. The fact - if you find it to be a fact - that he is a person of good character supports his credibility. It is a factor which he is entitled to have you take into account therefore when deciding whether you accept his evidence." (S/U 10 - 11) No application for a redirection was made by defence counsel. 89The appellant submitted that her Honour inadequately directed the jury regarding his good character and that her direction to the jury was inappropriately curtailed, or limited, in scope. The appellant submitted that the direction should have clearly stated that the appellant's good character meant that it was less likely that he would lie or give false evidence. The appellant submitted that her Honour should have expressed the direction in more emphatic terms, i.e. that his good character should be taken into account. 90The appellant also submitted that her Honour should have given a direction in terms of the suggested Bench Book direction, i.e. "You may reason that a person of good character is less likely to lie or give a false account .... in giving evidence before you ...". 91The failure to give a direction in terms of that recommended in the Criminal Bench Book goes nowhere. In Ith v R [2012] NSWCCA 70 McClellan CJ at CL (Adams and Hoeben JJ agreeing) said: "47 The applicant complained that the trial judge failed to include an additional sentence from the model direction in the bench book in relation to identification evidence. That sentence read as follows: "You must give consideration to each of these matters. Any one of those circumstances may possibly lead to error." To my mind, the submission is without merit. This Court has previously commented on the fact that the Bench Book, although prepared with great care, should not be relied upon as a complete and authoritative statement of the law. The fact that a trial judge does not direct in the precise terms provided by the Bench Book is not indicative of legal error. It is necessary to consider the directions which were actually given at trial and determine, in the context of that trial, whether or not they were appropriate: Hong v R [2009] NSWCCA 242." 92The point taken by the appellant goes no further than to raise a matter of semantics. In substance, her Honour did exactly what was required. She pointed out that the evidence was all one way as to the appellant's good character and that being so, it supported the credibility of his evidence in the trial. There was no miscarriage of justice arising from the manner in which her Honour directed the jury on the issue of the appellant's good character. 93This ground of appeal has not been made out. 94The orders which I propose are as follows: (1) I would dismiss Grounds of Appeal 1 and 2. (2) I would refuse leave to rely upon Grounds of Appeal 3 and 4. 95FULLERTON J: I agree with Hoeben CJ at CL that the applicant should be refused leave to rely upon appeal Grounds 3 and 4, and with his Honour's reasons for so holding. I also agree with his Honour that neither Ground 1 nor Ground 2 has been made out and, accordingly, the appeal against conviction should be dismissed. 96In so far as Ground 2 is concerned, and after considering the views of McCallum J, I wish to add my own reasons for concluding that, in the particular circumstances of this case, and in accordance with the principled approach most recently considered by this Court in Carney and Cambey, the trial judge was not obliged to direct the jury in the terms advanced by the appellant. 97As I understand the appellant's submission, the trial judge's obligation to direct the jury that it was necessary for them to be satisfied beyond reasonable doubt that the penetration of SB's vagina was not for a proper medical purpose arose as a result of the confluence of two factors. The first related to the way the Crown ran its case at trial. Counsel submitted that it was the Crown case that the appellant inserted his fingers into SB's vagina (and sexually or indecently assaulted the complainants the subject of counts 3, 4 and 5) under the guise of (or on the pretext of) providing treatment as a practitioner of traditional Chinese medicine when, in fact, his intention, or purpose, was sexual gratification. Counsel accepted that although the Crown is not obliged to prove sexual intent as a constituent element of an offence under s 61I of the Crimes Act, because it sought to prove the appellant's guilt on the basis that he used his practice in traditional Chinese medicine, and his relationship with SB as a client of his practice, to penetrate her vagina under the guise of proper medical treatment, the trial judge was obliged to direct the jury that they must be satisfied that if he did insert his fingers on repeated occasions there was no reasonable possibility that was a legitimate feature of that treatment. 98Were there some evidence that the penetration of SB's vagina (presumably to detect whether she had thrush) either was, or might reasonably be open to be seen as, an incident of the treatment of her skin rash by a practitioner of Chinese medicine (irrespective of whether the rash was on the lips and arms as SB described in her evidence, or around her eyes and mouth as appears in the treatment records maintained by the appellant), the appellant's submission would carry some force. However, aside from the fact that the appellant was conducting a practice in traditional Chinese medicine and that he had some qualifications in that field, counsel was unable to point to any direct evidence of that kind or any basis in the evidence for drawing any reasonable inference to that effect. In addition, as counsel conceded in argument, the effect of the appellant's evidence at trial was that although he had no actual memory of treating SB he would not have digitally penetrated her vagina (or, it would seem, any client who presented at his clinic) since his treatment as a practitioner of traditional Chinese medicine was restricted to acupuncture or acupressure, preceded by the application of creams under massage performed by his female assistant, and the provision of herbal remedies where indicated. I note that by reference to his clinical records the appellant gave evidence that he provided SB with Chinese herbs and what he described as "formulated pills" to apply to her skin rash to address any residual itching after treating her with massage and acupuncture. 99In my view, the mere fact that the appellant was a practitioner in Chinese medicine and that the penetrative acts occurred in his treatment rooms was not sufficient to raise a viable case that the penetration of SB's vagina was, or might have been, for a proper medical purpose in the absence of some evidence of a clinical connection (or possible clinical connection) between a skin rash and a vaginal infection for diagnostic or treatment purposes. In both Forsti and Zaidi, cases relied upon by the appellant as authority for the obligation of a trial judge to direct a jury as to the need for the Crown to negative that the penetrative act relied upon as constituting sexual intercourse was for a proper medical purpose, the particulars relied upon by the Crown for proof of that charge included circumstances where the possibility of the treatment being a proper medical purpose was squarely raised. 100The second factor relied upon as warranting a direction from the trial judge was SB's evidence set out in paragraph 27(h) of Hoeben CJ at CL's judgment. In my view, on a proper interpretation of her evidence, it was simply a matter of coincidence that after inserting his finger into her vagina the appellant saw some evidence of the mild case of thrush she was aware she had at the time she sought treatment for her skin condition. I am unable to see how it could be otherwise than coincidental since she did not complain of thrush and certainly did not seek any treatment from the appellant for it; the appellant did not raise it with her as a possible dimension to her skin complaint and it was her evidence that the appellant inserted his finger without warning and without her consent, conduct which is wholly inconsistent with a legitimate medical motive. 101The Crown's submission on the appeal that the evidence called by the appellant from Ms Maric that because the appellant was not medically trained in the conventional sense he always recommended to her and her family members that their medical condition should be followed up by a specialist or general practitioner of Western medicine, and that no recommendation of that kind was given to SB, also served to discount the viability of the penetration of SB's vagina being for the diagnosis of a vaginal infection. 102Despite the obvious import of the jury question (set out in at paragraph 57 of Hoeben CJ at CL's judgment) and the issue of "clinical or diagnostic intent" inherent in that question, again in the absence of evidence properly raising the issue, the trial judge's direction to the jury that it did not arise for their consideration was appropriate. 103McCALLUM J: I agree with Hoeben CJ at CL, for the reasons his Honour has stated. As to ground 2, I agree with his Honour that this was not a case in which the question of proper medical purpose arose. Indeed in my view the notion of there being a proper medical purpose for inserting a finger in SB's vagina when she presented for treatment of skin irritation around the eye and mouth (T582.35) is frankly ridiculous. There was absolutely no evidence to warrant leaving a case to the jury on that basis. The appellant gave a detailed account of the treatment he would have offered for the skin condition. He did not suggest that per vaginal examination formed part of that treatment or assessment and he specifically denied inserting his finger in her vagina (T582-590). In cross-examination he said that he did not remember much about SB but he maintained his denial that he had inserted his finger in her vagina (T655). I agree with the orders proposed by Hoeben CJ at CL.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2013
ZHU
R