Denton v R

1. [1]

   SIMPSON AJA: In June and July 2018 the applicant stood trial in the District Court on an indictment that contained 16 counts (6 of which were alternatives to principal counts), each of which alleged a sexual offence committed against the complainant at a time when she was under the age of 16. It is unnecessary to be more specific about the charges, with the exception of the first, which was a charge that, between 1 June 2014 and 31 August 2014, the applicant committed an act of indecency towards the complainant. That was a charge brought under s 61N(1) (now repealed) of the Crimes Act 1900 (NSW) and carried a potential maximum penalty of imprisonment for 2 years. On 9 July 2018, after a trial before Madgwick ADCJ and a jury, the jury returned a verdict of guilty on that count, and verdicts of not guilty on four counts (and the alternatives to three of them). The jury was unable to reach unanimous or majority verdicts on the remaining counts and was discharged.

2. [2]

   On count 1, of which the applicant was convicted, a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), requiring the applicant to be of good behaviour for a period of 12 months, was imposed.

3. [3]

   The applicant now seeks leave to appeal against the conviction. Leave is required because the grounds on which he seeks to rely involve questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). The applicant needs and seeks an extension of time in which to appeal. There being no opposition to an extension of time, it should be granted.

Background circumstances

1. [4]

   The background facts and circumstances are highly unusual and will need to be explained in some detail.

2. [5]

   The complainant was 14 years of age at the time relevant to the charges on the indictment. The applicant was born in 1993 and was 20 at those times. He is a relative of the complainant.

3. [6]

   In or about September 2016 the complainant attended Redfern Police Station and made a report of sexual offences by the applicant against her. The detail of that report does not emerge from the evidence. Because of the nature of the complainant’s allegations and her age the matter was transferred to a section of NSW Police called the “Child Abuse Squad” and an investigation by the Joint Investigation Response Team (“JIRT”, a joint initiative of the Departments of Family and Community Services and Health and NSW Police) followed.

4. [7]

   The complainant was interviewed and made two statements, dated 3 July 2017 and 23 January 2018. These statements are not before this Court. In the course of the interviews the complainant made two drawings, to which reference will be made below. Those drawings were in evidence and are before this Court. The investigations led to the charges on the indictment.

5. [8]

   On 23 and 24 January 2018, pursuant to Part 29 of Schedule 2 of the Criminal Procedure Act 1986 (NSW), the complainant’s evidence in chief and in cross-examination was taken and recorded. The jury trial began on 28 June 2018. The complainant’s pre-recorded evidence was played to the jury.

6. [9]

   The following account of the complainant’s evidence will be confined to so much of that evidence as is necessary to understand the issues that arise on the appeal.

7. [10]

   The complainant said that, as children, she and the applicant spent time together at a farm owned by her grandparents. She said that on one occasion in the winter of 2014 the applicant drove her to the farm. On the way they purchased food and a bottle of Jagermeister and Coca Cola. (Jagermeister is, apparently, a high alcohol content spirit or liqueur). After having dinner with her grandparents, she and the applicant went to a shed where they were to sleep. They drank the Jagermeister. The complainant had previously consumed alcohol on only one occasion. She became “quite intoxicated”. She said that the applicant:

8. [11]

   and that he wanted to show her so that she could tell him if it was abnormal or not.

9. [12]

   The complainant said:

10. [13]

    She was then shown the second, more detailed, drawing (Exhibit 3), which she said was:

11. [14]

    As put to the jury by the Crown Prosecutor in final address, it was the allegation that the applicant exposed his penis to the complainant that gave rise to count 1 on the indictment.

12. [15]

    The complainant had given a similar account in her interviews with police. During the course of those interviews she had made the two drawings referred to in [7] above, each representing the applicant’s penis. On one, the drawing is very difficult to follow, but is marked “abnormal spot on penis.” On the second, a clearer picture of what is identifiable as a penis is labelled “abnormal skin flap” with a line pointing to an area of the penis near the head. These drawings became, respectively, Exhibits 2 and 3 in the trial.

13. [16]

    Thereafter (in her evidence in the trial) the complainant gave an account of various other incidents of what she alleged were sexual offences against her by the applicant and that gave rise to the other charges on the indictment. Since none has resulted in conviction it is unnecessary to explore the detail of those allegations.

14. [17]

    Because of what the complainant had said in her interviews, and the drawings that became Exhibits 2 and 3, the Crown arranged for the applicant to be medically examined by a general practitioner, Dr Charles Lee. It was considered that, if any abnormality of the applicant’s penis were observable, that circumstance would afford significant support for the prosecution case.

15. [18]

    Dr Lee’s examination took place on 17 August 2017. He was specifically asked to examine the applicant’s penis. The precise instruction given to him never emerged with clarity. He said that he understood that the examination was to be conducted by reason of a “final order for a forensic procedure” (which I take to be an order made under the Crimes (Forensic Procedures) Act 2000 (NSW) although there is no indication of the nature of the order) and that it was indicated to him that his examination was concerned “in broad terms [with] something about an abnormality on [the applicant’s] penis”.

16. [19]

    During the course of the examination a police officer took photographs of the applicant’s penis. One of the photographs became Exhibit 18 in the trial. No objection was taken to the tender of the photograph.

17. [20]

    Dr Lee provided a report, which is not before this Court. He gave oral evidence in the trial which was treated as opinion evidence as authorised by s 79 of the Evidence Act 1995 (NSW). No objection was taken to Dr Lee’s evidence.

18. [21]

    Dr Lee concluded his report by disclosing that he had no special training in anatomy or urology. He reported that:

19. [22]

    Dr Lee paid particular attention to the part of the penis that is called the “frenulum” (also “fraenulum”). He explained in his evidence that the frenulum is an elastic piece of skin on the underside of the penis, connecting the foreskin to the head of the penis. He had found no literature that identified the “normal” size of the frenulum and said that, like any part of the body, variations occur (without abnormality). He said that:

20. [23]

    In cross-examination, Dr Lee said that he then asked himself:

21. [24]

    In his evidence in chief Dr Lee was asked to read the observations he had recorded in his report. His answer is recorded in the transcript as follows:

22. [25]

    In his report Dr Lee expressed the opinion that:

23. [26]

    During the course of his examination in chief Dr Lee was shown the two drawings (Exhibits 2 and 3) made by the complainant in the JIRT interview. He said that the drawing that had the notation “abnormal skin flap” (Ex 3) depicted the location of the frenulum. He was also shown the photograph (Exhibit 18). Dr Lee used the photograph to mark the area of the frenulum that he considered to be wider and thicker than he believed to be usual. That appears to be roughly consistent with the location identified by the complainant on the drawings as the location of “abnormal spot” or “abnormal skin flap”.

24. [27]

    The evidence of Dr Lee, taken as a whole, may best be summarised as follows. He was asked to examine the applicant’s penis, for the purpose of determining whether there was any “abnormality”. He had no specialist training or experience to make this assessment. On initial examination he detected no “major abnormality”. He then redirected his enquiry to whether there was anything about the applicant’s penis that could have given rise to a perception that there was an abnormality. It was in the course of this enquiry that he directed his attention to the dimensions of the applicant’s frenulum. He was unable to locate any medical or scientific literature that discussed the “normal” or “expected” parameters or dimensions of the frenulum, and reached the conclusion that “the shape and size of [the applicant’s] penile frenulum was moderately unusual being shorter and broader than is usually seen”. This assessment was made on the basis only of his own experience of examining patients during the course of his practice as a general practitioner. He had no specialist qualifications that would assist him in identifying abnormality – it may be added, beyond any abnormality that would be apparent to a reasonably informed observer without specialist qualifications.

25. [28]

    In his final address, the Crown Prosecutor invited the jury to examine the photograph (Exhibit 18 as marked by Dr Lee) and compare it with the drawings (Exhibits 2 and 3) made by the complainant. He suggested to the jury that they depicted exactly the same location, and that the only way that the complainant could have known about any unusual feature of the applicant’s penis was if she had in fact seen it, in other than some “momentary, incidental” or casual exposure.

26. [29]

    The applicant gave evidence in the trial. He denied all allegations.

27. [30]

    Neither the Crown Prosecutor in his final address, nor the trial judge in his summing up, made any reference of substance to Dr Lee’s evidence (other than the invitation by the Crown Prosecutor to the jury to compare the marked photograph with the drawings). Counsel for the applicant drew attention to the absence of any relevant qualifications of Dr Lee, and to his initial finding of no major abnormality. Nevertheless, shortly after they retired, the jury asked:

28. [31]

    The trial judge answered the question as follows:

29. [32]

    After further deliberation, the jury returned the verdicts set out at [1] above, and the bond was imposed.

A second trial

1. [33]

   In April 2019 the applicant was arraigned in the District Court before Sweeney DCJ on an indictment containing the counts on which the jury had failed to reach a verdict. He again entered pleas of not guilty to all counts and a second trial proceeded.

2. [34]

   The Crown again proposed to rely on the evidence of Dr Lee. Counsel objected and, after having heard argument, Sweeney DCJ excluded the evidence: R v Thomas Denton, (District Court (NSW), 3 April 2019 unrep). Her Honour considered that Dr Lee’s training and experience as a general practitioner did not qualify him, as required by s 79 of the Evidence Act, to express the opinions that he did, and that he did not have the necessary “specialised knowledge about the subject on which he expressed the opinion.” The Crown did not challenge that ruling.

3. [35]

   It may be recalled that in the first trial Dr Lee had been shown the drawings made by the complainant, and had stated the view that the second drawing depicted the frenulum, that is, the part of the penis that he considered to be “moderately unusual” by reason of its width, length and thickness, although he did not consider that to be an abnormality.

4. [36]

   On the fourth day of the second trial the Crown Prosecutor tendered two photographs of the applicant’s penis. It is not clear, but these are likely to have been photographs taken by the police officer during Dr Lee’s examination of the applicant, one of which was probably Exhibit 18 from the first trial. It is not clear whether what was tendered was Exhibit 18 as marked by Dr Lee, or an unmarked version. If it were the marked version, the marking would have been meaningless to the jury without evidence as to what the marking was intended to do. If it were an unmarked version, it is difficult to see how its admission could have advanced the Crown case.

5. [37]

   Sweeney DCJ rejected the tender of the photographs. She considered that, in the absence of expert evidence (of which there was none, Dr Lee’s evidence having been rejected), to ask the jury to draw inferences from a comparison of the drawings and the photographs would amount to inviting speculation.

6. [38]

   Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Crown appealed to this Court against that ruling. The appeal was dismissed: R v Denton [2019] NSWCCA 81. The three members of the Court agreed that the evidence was inadmissible, but expressed differing views for that conclusion. Hoeben CJ at CL considered that the photographs were not relevant, and that, in any event, their probative value was so low as to warrant their rejection under s 137 of the Evidence Act.

7. [39]

   Hamill J accepted that the evidence was, within s 55 of the Evidence Act, relevant, but considered that, in the absence of evidence of any abnormality or distinguishing feature of the applicant’s penis, the probative value of the photographs was limited. He also considered that there was a danger that the evidence might be unfairly prejudicial, such as to warrant its exclusion under s 137 of the Evidence Act. R A Hulme J considered that either a conclusion that the evidence lacked relevance, or that its probative value was outweighed by the danger of unfair prejudice, was open and that the ruling excluding the evidence was correct.

8. [40]

   The second trial proceeded. On behalf of the applicant a consultant urologist, Dr Robert Wines, was called. His expertise, and therefore his capacity to provide opinion evidence, was not challenged.

9. [41]

   Dr Wines said that the applicant’s genitalia were normal and the “fraenum” (which appears to be an alternative word for “frenulum”) was “just within the normal variation of the fraenum in an uncircumcised penis”. Dr Wines was also shown the two drawings made by the complainant. He considered that the second (Exhibit 3 in the first trial) represented a circumcised penis. (The applicant’s penis was uncircumcised.) Dr Wines thought that the drawing did not resemble the applicant’s penis and that the fraenum as depicted was “grossly enlarged in size, it’s a lot thicker” than that of the applicant. He said that, while all uncircumcised men have fraenums, the fraenum is usually removed in circumcision.

10. [42]

    The applicant again gave evidence and denied all allegations. The jury returned verdicts of not guilty on all counts.

The appeal

1. [43]

   With that rather extensive and elaborate background, it is now possible to turn to the proposed grounds of appeal, bearing in mind that the appeal is against the conviction in the first trial.

2. [44]

   Three grounds of appeal are pleaded, as follows:

3. [45]

   Section 6(1) of the Criminal Appeal Act provides as follows:

4. [46]

   Rule 4 of the Criminal Appeal Rules provides:

5. [47]

   Since the grounds of appeal are based on:

6. [48]

   The grounds the applicant seeks to advance are that, as Sweeney DCJ held in the second trial, the evidence of Dr Lee was inadmissible and its admission in the first trial therefore gave rise to a miscarriage of justice; and that the invitation extended to the jury to compare the photograph (Exhibit 18) with the complainant’s drawings (Exhibits 2 and 3) also gave rise to a miscarriage of justice.

7. [49]

   No objection to Dr Lee’s evidence having been taken at trial, the applicant requires leave under Rule 4 to advance Ground 1. The Crown has submitted that Rule 4 also applies to Ground 2, since the invitation extended to the jury to make the comparison was based on evidence that was admitted without objection. So much is correct, but it is difficult to see how a ground of appeal that complains of a submission made by the Crown Prosecutor in final address fits within the language of Rule 4. True it is that a request could have been made for a direction that the jury disregard the invitation, but the ground is not as to an omission to direct. I am not persuaded that Rule 4 applies to Ground 2, such that leave is required to permit the applicant to advance that ground.

8. [50]

   Ground 3, the tender of new or fresh evidence, raises different issues, to which I will briefly return.

Ground 1

1. [51]

   Dr Lee’s evidence was opinion evidence. It was admitted for the purpose of proving that there was some abnormality of the applicant’s penis and therefore to provide support for the complainant’s assertion that the sexual encounters she alleged had begun with the applicant’s exposure of his penis to her and his request to her to inspect it for abnormality.

2. [52]

   By s 76 of the Evidence Act 1995 (NSW) opinion evidence is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. An exception to that prohibition is provided by s 79(1), which is in the following terms:

3. [53]

   There are two preconditions to the admissibility of opinion evidence as provided by s 79:

4. [54]

   It is obvious that the training, study or experience, and the knowledge based thereon, must relate to the subject matter on which the evidence of the opinion is sought to be admitted. That calls for identification of the fact the existence of which is sought to be proved by the evidence.

5. [55]

   In this case, that fact was the existence or otherwise of an “abnormality” on the applicant’s penis. A physical abnormality may mean many things. “Abnormality” is defined in the Macquarie Dictionary to mean:

6. [56]

   A dictionary definition is not to be accorded the status of a legislative provision. It is not to be assumed that, in referring to an abnormality on his penis the applicant had in mind dictionary definition. The dictionary definition provides a useful starting point in the consideration of how the investigation of an abnormality in or on the applicant’s penis is to be approached. “Deviation from the standard”, I think, adequately captures what Dr Lee was called upon to assess, and, probably, what the applicant had in mind.

7. [57]

   That immediately directs attention to what, with respect to the subject matter, is the standard from which there is (or may be) a deviation. In this case the “standard” in question is that appertaining to the characteristics of a penis without abnormality. Dr Lee expressly disavowed any “special knowledge” with respect to anatomy or urology, which may be taken to be the relevant medical areas of speciality. As Sweeney DCJ held, his qualifications as a general practitioner did not meet the criteria that would permit admission of his opinion evidence under s 79 with respect to the standard dimensions or characteristics of normal penises or deviation therefrom. Dr Lee therefore lacked the necessary specialised knowledge based on training, study or experience that would have qualified him to give that evidence. His evidence was not admissible.

8. [58]

   This conclusion is in accord with the decision of the High Court in Honeysett. In that case opinion evidence of a professor of anatomy, Professor Henneberg, was admitted to aid in the proof of the identity of an alleged offender. This was sought to be done by having Professor Henneberg examine video footage of the actual (known) offender at the scene of the crime, and video footage of the person accused of that crime in a prison cell, and conducting an anatomical comparison of the two. In fact, although he had been asked to conduct an anatomical comparison, and did so, Professor Henneberg did not give evidence of identification based on that comparison. What he did was to describe certain discernible features of the bodily characteristics of the two individuals depicted in the two videos, pointing out that he found no observable difference between the two. The inference sought to be conveyed was clear.

9. [59]

   The High Court held that the opinions expressed were not based on the Professor’s anatomical expertise, but were based on his subjective impression of what he saw when he examined the images on the video footages (at [43]). In effect, this was an exercise that could have been undertaken by the jury. Professor Henneberg’s evidence was not based wholly or substantially on specialised knowledge based on his training, study or experience.

10. [60]

    The consequence of having this evidence given through a purported expert witness was that it “gave the unwarranted appearance of science to the prosecution case” that the offender and the person accused shared a number of physical characteristics (at [45]).

11. [61]

    Any possibility that Dr Lee’s evidence was based wholly or substantially on his specialised knowledge (as a general practitioner) was put to rest by his own acknowledgment, in his report, that he had no specialist qualifications in anatomy or urology. His observations of the applicant’s penis were, like Professor Henneberg’s observations of the physical characteristics of the men depicted in the two videos, based on his subjective impression of what he saw, and his recollections of the penises of men he had examined in the course of his general practice of medicine. There was nothing scientific about his evidence, but, as in Honeysett, it gave the unwarranted appearance of science to the prosecution case. Dr Lee’s evidence did not amount to an opinion based on specialised knowledge based on his training, study or experience.

12. [62]

    Accordingly, the evidence was not admissible under s 79 of the Evidence Act.

13. [63]

    It should not be assumed that, in speaking of “something abnormal” on his penis, the applicant necessarily had in mind a condition or feature that might, on the application of recognised medical standards, be categorised as an abnormality. It is far more likely that he had in mind something that he considered deviated from the average, or usual. That is how Dr Lee, after his reconsideration, approached the task committed to him. The difficulty with that approach is that it did not involve the application of his expertise – that is, his specialised knowledge based on his training, study or experience. It involved only subjective observation.

14. [64]

    As I have suggested, this was not a case that hinged on whether there was, in medical terms, an abnormality of the applicant’s penis. If that were the issue, it is something that would clearly call for an opinion based on appropriate expertise. The real question, as properly identified by Dr Lee, was whether there was any feature of the applicant’s penis that could reasonably have given rise to an apprehension in him of abnormality. That is not something to be determined on the basis of the training, study or experience of a general practitioner, and Dr Lee made no bones about disclosing his lack of expertise to express an opinion on that subject.

15. [65]

    It is not always easy – it may be impossible – to separate observations that may be made by a reasonably astute and informed observer from those based on specialised training, study and experience: Velevski v The Queen [2002] HCA 4 at [158]; (2002) 76 ALJR 402 at 427.

16. [66]

    Here, Dr Lee was asked, because of what was perceived to be his expertise, to express an opinion that was beyond his expertise. But it also was not a question that (as was the case in Honeysett) could realistically have been left to the jury’s own observations. It could scarcely be contemplated that the jury be asked to undertake that exercise.

17. [67]

    In Velevski, Gummow and Callinan JJ accepted that, in some cases, the observations of an expert will go beyond that expert’s expertise and incorporate observations of “everyday affairs and events, and departures from them” (at [158]). Their Honours said:

18. [68]

    In the circumstances, it would have been entirely reasonable for an expert qualified, as was Dr Wines, to point to features of the applicant’s penis to which the jury’s attention might be drawn. Dr Lee was not that expert. Dr Lee’s evidence should not have been admitted.

19. [69]

    Two questions remain:

20. [70]

    It is apparent that, notwithstanding that neither the Crown Prosecutor nor the trial judge placed any emphasis on Dr Lee’s evidence, the jury saw it as of some significance, prompting the note asking what Dr Lee’s instructions were. It cannot be thought that Dr Lee’s evidence did not play a significant part in their decision to convict the applicant on count 1. That conclusion is reinforced when it is remembered that this was the only count that resulted in conviction. It is inescapable, in my opinion, that the admission of Dr Lee’s evidence did result in a miscarriage of justice. That also answers the second question. Leave under r 4 should be granted.

21. [71]

    That conclusion means that I can deal quickly with the remaining two grounds.

Ground 2

1. [72]

   By ground 2 the applicant complained of the admission of the photograph Exhibit 18, and the invitation to the jury to compare it with the drawings made by the complainant and conclude that they depict the same locations.

2. [73]

   The first thing to observe is that Exhibit 18 is all but meaningless except for the mark placed upon it by Dr Lee, indicating the location of the frenulum. The point of the postulated comparison was that Dr Lee’s mark locating the frenulum coincided with the complainant’s marks indicating the “abnormal spot” or “abnormal skin flap”. When, in accordance with the conclusion expressed above about the admissibility of Dr Lee’s evidence, his marking is disregarded, there is nothing on Exhibit 18 to compare with the complainant’s two drawings. That would be sufficient to justify upholding this ground of appeal.

3. [74]

   An equally strong reason is the decision of this Court on the appeal, pursuant to s 5F(3A) of the Criminal Appeal Act, against the rejection of the photograph by Sweeney DCJ. The conclusion of the Court was that the photograph was inadmissible. This Court should not depart from that ruling. Ground 2 should be upheld. The invitation to the jury to compare the photograph with the complainant’s drawings caused a miscarriage of justice.

Ground 3: Admission of Dr Wines’ evidence.

1. [75]

   The applicant seeks to rely on evidence given by Dr Wines in the second trial as indicative that, had that evidence been available, he would not have been convicted. That may or may not be so, but the applicant has not established that the evidence of Dr Wines was not reasonably available at trial.

2. [76]

   I do not find it necessary to determine this ground of appeal. My conclusions in relation to grounds 1 and ground 2 are sufficient to warrant allowing the appeal.

3. [77]

   In my opinion leave to appeal should be granted, the appeal allowed, and the conviction set aside.

4. [78]

   The orders I propose are:

5. [79]

   BELLEW J: I agree with Simpson AJA.

6. [80]

   WILSON J: I agree with Simpson AJA.