Kamal v R

1. [1]

   MITCHELMORE JA: On 8 July 2024, the applicant stood trial on indictment in the District Court, before Judge Harris sitting with a jury, on the following counts:

   1. (1)

      two counts of sexually touching the complainant without her consent, and knowing that she was not consenting, in circumstances of aggravation, namely, that at the time of the offence the complainant was under the authority of the applicant by reason of his being her treating doctor, contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW); and

   2. (2)

      one count of sexual intercourse with the complainant without her consent, and knowing she was not consenting, in circumstances of aggravation, namely, that at the time of the offence the complainant was under the authority of the applicant by reason of his being her treating doctor, contrary to s 61J(1) of the Crimes Act.

2. [2]

   The applicant was an independent general practitioner who practised at the Leichhardt Medical and Dental Centre (the medical practice). Each of the counts on the indictment was alleged to have occurred on 18 October 2022, when the complainant, who was 23 years old at the time, attended the medical practice for a pre-employment medical examination and was seen by the applicant. The Crown alleged that:

   1. (1)

      when purporting to conduct a heart sounds examination, the applicant circled the complainant’s left nipple with a stethoscope, over her clothing (count 1);

   2. (2)

      when purporting to conduct a hernia check, the applicant cupped his left hand over the complainant’s vagina, underneath her trousers but over her bodysuit and underwear, pressing down on her pubic bone (count 2); and

   3. (3)

      when purporting to conduct an “internal” hernia check, the applicant digitally penetrated the complainant’s vagina with his finger (count 3).

3. [3]

   The Crown alleged that the conduct comprising each of the counts was for the applicant’s sexual gratification and was not for a proper medical or hygienic purpose. The Crown further alleged that the complainant participated in these acts either because she was mistaken about whether there was a proper medical purpose for those acts or because she was overborne by the abuse of the relationship of authority between herself and the applicant.

4. [4]

   The applicant gave evidence in the trial. His case on count 1 was that he had performed a proper heart sounds check over the relevant areas of the complainant’s left breast. His case on counts 2 and 3 was that the alleged conduct did not occur.

5. [5]

   On 18 July 2024, the jury returned verdicts of guilty on all three counts. On 29 November 2024, the applicant was sentenced to an aggregate sentence of imprisonment of 7 years and 9 months, to commence on 18 July 2024, with a non-parole period of 4 years and 3 months.

6. [6]

   The applicant seeks leave to appeal against his convictions pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), alleging that the verdict on each count was unreasonable or cannot be supported having regard to the evidence: s 6(1) of the Criminal Appeal Act. In the event that the appeal is allowed but not with respect to all three counts, the applicant sought leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act, contending that the Court should alter the sentence imposed in respect of any remaining count(s) pursuant to s 7(1) of the Criminal Appeal Act.

7. [7]

   For the following reasons, I consider that the appeal against conviction on all grounds should be dismissed, rendering it unnecessary to consider the sentence appeal.

Outline of the cases at trial

1. [8]

   On 18 October 2022, the complainant attended the medical practice for a pre-employment medical assessment, part of which involved being examined by a general practitioner, in this case the applicant. The Crown alleged that in the course of the examination, the applicant sexually touched and digitally penetrated the complainant. It was not in dispute at the trial that the complainant was under the care of the applicant at the time of the alleged conduct. It was an agreed fact in the trial that the pre-employment medical check did not require either a breast examination or a gynaecological examination.

2. [9]

   In summing up, the trial judge provided to the jury a document titled “Elements document – The Crown and the Defence Case” which, consistently with its heading, set out for the jury both the elements of the offences and, for each count, summarised the respective Crown and defence cases (MFI 11).

3. [10]

   The parties on the appeal agreed that the central issues between them on count 1 at trial focused on whether the conduct constituting the count occurred as the complainant described it in her evidence and, if so, whether it had a proper medical purpose. The Crown relied at trial on the complainant’s evidence to establish that the applicant touched her, placing the stethoscope on her left breast over the top of her bra and bodysuit and moving the stethoscope in a circle around where her nipple was for a matter of seconds. The Crown relied on that same evidence, as well as her evidence that the applicant went on to touch her vagina over her clothing and then digitally penetrate her vagina, to establish that the touching was sexual. In support of the element that the applicant did not have a proper medical purpose for the touching, the Crown called expert evidence from Professor Pepperell, a gynaecologist, and Dr Mackey, a general practitioner, about the way a heart sounds check should be conducted and their opinion that the applicant’s examination was inadequate. It was also the Crown case that the accused was motivated to obtain sexual gratification in engaging in this act, rendering the conduct without a proper medical purpose.

4. [11]

   The applicant’s case at trial was that the complainant had reconstructed the applicant’s conduct during what was, on his evidence, a proper heart sounds check. Even if the jury rejected his evidence about how he conducted the check, the applicant contended that on the complainant’s evidence, the applicant had done nothing other than a poorly executed heart sounds check. The evidence of Professor Pepperell and Dr Mackey did not support a finding beyond reasonable doubt that the applicant did not have a proper medical purpose in conducting the check as the complainant described it in her evidence, and there was no evidence capable of demonstrating a purpose of obtaining sexual gratification. The applicant also relied on the absence of complaint evidence about this aspect of the examination on 18 October 2022, submitting that she complained about it later having convinced herself that it had a sinister overtone.

5. [12]

   The issue between the parties on count 2 was whether the conduct about which the complainant gave evidence occurred at all. In summary, the complainant alleged that while she was lying down on the examination bed, following an abdominal examination, the applicant put his hands inside her trousers and, over her body suit, pushed on her pubic bone with the heel of his left hand while cupping his fingers over her vagina. The Crown case was that this touching was sexual given the area touched, relying on the evidence of Professor Pepperell and Dr Mackey that this was not required and thus was not for a proper medical purpose. The Crown also alleged that the applicant placed his fingers on the outside of the complainant’s vagina to obtain sexual gratification. The applicant’s case on this count was that the complainant’s evidence could not be accepted and she had made a false complaint. As the trial judge directed, the applicant was not required to raise any reason for making a false complaint, but in this case the applicant suggested that the complainant may have acted out of embarrassment for making a fuss in front of her work colleagues, when she was really only questioning whether the applicant had acted inappropriately in asking to do an internal examination. She may also have felt pressure from her colleague, Deborah Rich, to escalate and exaggerate what happened in reporting the matter to the police.

6. [13]

   The issue between the parties on count 3 was the same as for count 2, namely, whether the alleged conduct occurred at all. The Crown relied on the complainant’s evidence that during what was said to be a hernia check, the applicant said that he had to do a special internal check and placed his hands inside her trousers, moved her body suit and underpants to one side, and penetrated her vagina with his finger. The Crown case was that the jury would accept the complainant’s evidence, and the evidence of Professor Pepperell and Dr Mackey that this check was not required and was not for a proper medical purpose. The Crown also relied on the applicant’s verbal pressuring of the complainant to participate in the check as demonstrating his knowledge that he had no proper medical purpose and that he knew she was not consenting other than in the mistaken belief that it was for a hernia check. As with count 2, the applicant’s case on count 3 was that the complainant’s evidence could not be accepted and she had made a false complaint.

7. [14]

   The Crown called evidence from the complainant and Joshua Palmer, a health assessor at the medical practice who conducted a pre-assessment health screening with the complainant, before she saw the applicant. The Crown also relied on the evidence of Ms Rich and her employer’s human resources manager, Rebecca Abbatantuono, about complaints that the complainant made to them respectively shortly after the consultation. The Crown led the expert evidence of Professor Pepperell and Dr Mackey to which I have referred on the issue of proper medical purpose, as well as evidence from Dr Summerell about the results of DNA testing on the six gloves that police located in bins in the applicant’s consultation room on the evening of 18 October 2022. For the purposes of the trial, the Crown and the applicant also agreed a number of facts pursuant to s 191 of the Evidence Act 1995 (NSW) (Agreed Facts) (Ex 18). The only evidence that the applicant called in his case was his evidence as a witness at trial.

The conduct the subject of the indictment

1. [15]

   On 15 August 2022, the complainant commenced employment as a field service engineer with a genetics company. It was a condition of her employment that she undergo a pre-employment medical assessment. At that time, her employer contracted Logic Health Pty Ltd (Logic Health), an occupational health company, to arrange those assessments for its employees.

2. [16]

   On 11 October 2022, Logic Health arranged an appointment for the complainant to undergo a “standard” pre-employment medical assessment on 18 October 2022 at the medical practice. Gynaecological, breast and pelvic examinations were not specifically required as part of the standard medical assessment, and neither Logic Health nor her employer advised the complainant that any such examination would be required. The complainant gave evidence that upon reading the material she was sent in advance of the appointment, she did not expect that the assessment would require an internal vaginal examination.

3. [17]

   The applicant was an independent general practitioner registered through the Australian Health Practitioner Regulation Agency (AHPRA) at the time of the offending. He commenced undertaking pre-employment assessments for Logic Health on 4 October 2022 and had completed one such assessment before the appointment with the complainant.

4. [18]

   Logic Health provided medical practices with a standardised pre-employment medical assessment form which was to be jointly completed by the patient and, in the first instance, a health assessor and, then, a doctor. Consistently with that practice, when the complainant attended the medical practice she was first seen by Mr Palmer. The complainant completed a document titled “Logic Health – Terms and Conditions for Undertaking Tests” (Ex 4), and partially completed a “Logic Health Pre-Employment Medical” form (Ex 5) (the medical assessment form). The complainant gave evidence that she and Mr Palmer went through the latter form together and he did the health screening as per the form.

5. [19]

   Mr Palmer gave evidence that he used a pink highlighter to indicate fields on the form that the doctor would have to fill out, including, relevantly for present purposes, “Heart sounds”, “ENT” and “Alimentary system”. The latter field relevantly included a subcategory, “hernial orifices or masses”. Mr Palmer also gave evidence that he wrote the words “menstrual cycle” under “Comments” in the urinalysis section of the form. He detected blood in the urine sample the complainant provided and asked her whether she was in her menstrual cycle, which she confirmed. The complainant gave evidence that she was coming to the end of her period and was not wearing a sanitary product that day.

6. [20]

   According to the evidence of both the complainant and Mr Palmer, he told her that she had to see the doctor and directed her to a chair outside the applicant’s consultation room. Mr Palmer slid the complainant’s forms, which were in a red manilla folder, under the door to that room.

7. [21]

   CCTV footage from the corridor, which was tendered and played in the trial (Ex 15) showed the complainant sitting on a chair before entering the applicant’s consultation room at 11:10.38 am. The complainant gave evidence that she was wearing cargo pants, a black t-shirt-cut bodysuit and a cardigan. She was also wearing underwear, being a bra and G-string underpants.

8. [22]

   The complainant gave evidence that after she entered the consultation room, the applicant closed the door and she sat on a chair just inside the door. The applicant sat at his desk across the room from her and looked at her paperwork before asking her some questions, a number of which she had already gone through with Mr Palmer. The applicant told the complainant he would be checking for eczema or dermatitis, and he rolled his chair over to where she was sitting and examined her forearms. The complainant recalled that the applicant next did an ear, nose and throat (ENT) check, although she could not recall whether her nose was checked, or either of her ears. After that check, the applicant said, “Excuse me” and then left the room for what the complainant described as “a very brief period” before returning.

9. [23]

   The CCTV footage showed the applicant walking out of his consultation room at 11:19.43 am. He walked to a door across the corridor, which was the consultation room for a female doctor, Dr Mutharajah. The applicant can be seen to raise his fingertips to the door and wait approximately four or five seconds. He then tilted his head upwards slightly and glanced in the direction of the CCTV camera. This latter motion was part of his turning back towards his own consultation room, although the CCTV camera was situated at the opposite end of the corridor from the applicant’s consultation room such that his motion involved turning approximately 270 degrees. The applicant can then be seen walking across the corridor and re-entering his consultation room at 11:20.05 am. The Crown submitted at trial that it was open to the jury to infer that the applicant had only pretended to knock on Dr Muthurajah’s door using his fingertips.

10. [24]

    The complainant gave evidence that before the applicant left the room, he did not say where he was going and she did not ask him. In cross-examination, it was suggested to her that he said words to the effect, “I need to check with my colleague, Dr Muthurajah, to see if she can accommodate you”. The complainant responded that the applicant did not say that, saying only, “Excuse me”. She also denied that the applicant said to her that her assessment required a hernia examination and he wanted to see if Dr Muthurajah was free. The complainant accepted that although she described the applicant as having left the room for “literally one second” in her first police statement, the period was not that short. However, she did not accept that she was painting an inaccurate picture to try and make things worse for the applicant, stating, “No, I was trying to explain how brief a period he was out of the room for”.

11. [25]

    The complainant gave evidence that, on his return, the applicant went back to the paperwork and said he was going to have to do a hernia check. He asked her to lie down on the examination bed, and she did so without removing any of her clothing. After she lay down, the applicant said that he had forgotten to do a heart check and would have to do that. The complainant thought that at this stage the applicant had dark blue gloves on, which she confirmed in cross-examination.

12. [26]

    The applicant placed a stethoscope on the complainant’s left breast, over her clothing, where her nipple would have been. The applicant then moved the stethoscope in a circle on the fullest part of her breast, around her nipple. The complainant gave evidence that he did this briefly, subsequently estimating the duration as a matter of seconds. At that point, she was quite fidgety, being unsure if she needed to move something or if her bra was in the way. She asked the applicant if she needed to move anything, and he said, “No. This is fine”. The applicant did not move the stethoscope to any other part of her chest or her sternum and he did not ask her to sit up or turn over at any point. Aside from fidgeting and offering to move her clothing, the complainant said that she was uncomfortable “but it didn’t last for very long” and afterwards the applicant went back to his desk.

13. [27]

    In cross-examination, the complainant denied that the applicant told her that he needed to place the stethoscope in the area of her left breast before he conducted the heart sounds examination. She also denied that the applicant moved the stethoscope to different areas of the left breast and did not focus on the nipple. However, the complainant did accept that at no stage did the applicant’s fingers touch her breast.

14. [28]

    The complainant also accepted that she did not mention any issue with the heart sounds examination in her first police statement, dated 18 October 2022. Her evidence was that, on the day, she did not remember that part of the examination when she was talking to police about “the other stuff”. However, she recalled referring to it in a phone call with the previous officer in charge, Detective Sergeant Sarah Dunn, either the day after or within two days of what happened, although did not comment on it in a statement until 27 October 2022. The complainant agreed that she did not mention this aspect of the examination in any of her written communications with Ms Rich, and she could not recall whether she spoke to Ms Rich about it, either on the day of, or the day after, the examination.

15. [29]

    The Crown called expert evidence from Professor Roger Pepperell, a retired professor of gynaecology and obstetrics, and Dr Kenneth Mackey, a general practitioner. Both experts expressed the opinion that conducting a heart sounds check on a female patient over her clothes was not optimal, and opined that a best-practice heart sounds check is conducted with the stethoscope placed on the patient’s skin. In cross-examination, they also accepted that there was nothing wrong with conducting the examination over the clothing.

16. [30]

    Professor Pepperell gave evidence that the heart sounds check as described by the complainant in her evidence was not a proper medical examination. In his view, that was because: (1) the examination did not cover all of the areas that were needed; and (2) the procedure was so “rapid” as to only go around the nipple, which was not sufficient unless the breasts were small. Dr Mackey also characterised the heart sounds check as inadequate because: (1) lying the patient flat was not the best way to listen to the heart sounds (this technique is acceptable but not optimal); (2) the patient should have been given an explanation about the procedure; and (3) the stethoscope should have been placed on the complainant’s skin.

17. [31]

    Dr Mackey said that placing the stethoscope over the complainant’s nipple was “not unsatisfactory”, given the site to start listening for the heart sounds would be “somewhere about where the nipple may be”, and it would be difficult to tell the exact location of the heart sound check points if the relevant points were covered by clothing. He also gave evidence that it was necessary to move the stethoscope in small increments to find the loudest heart sound. Professor Pepperell agreed that the location of the apex of the heartbeat, which was between the fourth and fifth ribs on the left-hand side approximately three or four centimetres from the midline, might vary slightly depending on the breast size of the person, and finding it might require moving the stethoscope around slightly. He also accepted that if the examination was done with the breast covered it would be difficult to determine the exact location of the nipple.

18. [32]

    The complainant’s evidence was that while she was still lying down, the applicant said that he had to do a hernia check without explaining what that entailed. The applicant pushed on the side of her stomach with his fingertips a couple of times over her clothing, in line with her belly button and just above the waistline of her pants, which were done up at this point.

19. [33]

    The complainant gave evidence that the applicant then moved his hand underneath the waistline of her trousers. Compared to her bodysuit, her cargo pants were loose and the applicant placed his hand over her bodysuit, cupping her vagina with his fingers and pressing down a couple of times on her pubic bone using the heel of his left hand. The applicant’s fingers were against her vagina while he was doing this but she did feel any movement of his fingers. The complainant estimated this occurred for a few seconds, stating, “it felt like a long time, but, I’d say, 15, 20 seconds, maybe”. The applicant then removed his hand and returned to his desk. In cross-examination, it was put to the complainant that this conduct had not occurred, which she did not accept.

20. [34]

    The complainant gave evidence that the applicant next informed the complainant that it was necessary to perform a “very special check” that was an internal check for hernias. She said that she was upset about this and there was some back and forth between her and the applicant. The complainant said that when the applicant first referred to such a check she thought there had been a mistake with the paperwork. She said to the applicant that she should have been told beforehand if an internal check was required, and asked if it was necessary and if he was sure. The applicant said yes and that it was really important to get it done, and if she refused then she would have to come back another time. When asked in chief if the applicant had offered for someone other than himself to conduct the internal check, the complainant gave evidence that the applicant said he was trying to find a female doctor, and the complainant realised that he was talking about when he’d left the room for a period.

21. [35]

    The complainant gave evidence that she agreed to the examination because the applicant said it was important and she would have to come back otherwise. The applicant did not explain what he meant by an internal check and her evidence was, “if anything, I thought it would have been like a rectal exam, but, I didn’t know to be honest, at that point, what was going to happen”. The complainant described the applicant’s tone at this time as seeming a bit agitated and quite dismissive of her concerns.

22. [36]

    The complainant gave evidence that she lay back down and undid the button on her pants, thinking she would have to take them off. The zip came apart, exposing the top of her legs and the bottom of her bodysuit. The applicant put his left hand between her legs underneath her trousers, pushed her bodysuit and underwear to the side with his left hand, and inserted a finger of his right hand into her vagina, up to the knuckle. The complainant said that she was not in pain but was getting “stressed out” with the situation. She asked the applicant to stop a couple of times and then said that she was on her period. When he persisted, she repeated that she was on her period and said that she was sore, at which point “it stopped”. The complainant had finished her period that week but she told the applicant she was on her period because she thought it would make him “stop doing it”. She estimated that his finger was inside her vagina for less than 30 seconds.

23. [37]

    When asked what happened when the applicant removed his finger from her vagina, the complainant replied:

24. [38]

    The complainant confirmed that the applicant went over to the sink area, while she sat up and did up her pants. She then stood up and went back to the chair on which she had previously been sitting. The applicant had the paperwork back in the red folder and said she could go. In her evidence in chief, the complainant said that the applicant had made a comment that she was non-compliant with that part of the examination, and she remembered saying sorry. The complainant took the folder and left the room.

25. [39]

    In cross-examination, the complainant denied that the applicant never referred to her needing a “very special check”. She also disagreed that he had never said the words “an internal check”. When it was put to the complainant that the applicant had a “quite a strong accent”, she said that she did not remember having any difficulty understanding him and did not accept that his accent created any level of confusion on her part. The complainant did not recall telling the applicant that her friend did not have this examination, or that she was on her period and did not have any hernias. At this point, she was asked about the medical assessment form, specifically the part of the form headed “Alimentary System”, where the applicant had written, in the “Comments” section next to “Hernial orifices or masses”, “Patient is having period now. Hernia not checked, but patient said – no hernia”. The applicant accepted that was what was written on the form. However, she did not accept that she told the applicant that she had no hernia, and she did not accept that she said as much (or that she was on her period) in order to avoid the doctor examining her for a hernia.

26. [40]

    When the applicant’s trial counsel put to her that at no stage did the applicant ask her to undo her pants, the complainant replied, “I don’t remember that part. I just knew he needed to access that area, but I don’t know how that conversation took place”. She agreed that her pants remained on at all times, albeit undone, and that the applicant did not move her pants down at any stage. The applicant’s trial counsel put to the complainant that there was no internal examination, that the applicant did not move her body suit and underwear to one side and that he did not place his finger in her vagina. The complainant disagreed with each of those propositions. However, she accepted that her police statements made no reference to using the word “stop”, and that the evidence she had given in chief about having told the applicant to “stop” was inaccurate. The complainant believed she mentioned being on her period multiple times.

27. [41]

    The time between the applicant re-entering the consultation room at 11:20.05 am, and the complainant exiting the consultation room at 11:25.41 am, was 5 minutes and 36 seconds. A couple of seconds after the complainant is seen to exit the room, the applicant can be seen at the doorway looking after her, shifting from one foot to another, and then walking across the hallway and briefly holding his ear up to the door of Dr Muthurajah’s consultation room before returning to his own consultation room. The Crown submitted that it was open to the jury to infer that the applicant appeared in the footage to be panicking or worried.

28. [42]

    As to counts 2 and 3, Professor Pepperell and Dr Mackey both opined that a hernia check would not entail an internal examination of the nature that the complainant alleged. Dr Pepperell considered that, for a patient of the complainant’s age and health, an internal examination involving digital penetration was “not indicated” and “not appropriate”. Dr Mackey gave evidence that an internal examination had “no purpose” where the patient had no signs of gynaecological issues and the examination would “produce no evidence to indicate any hernia, any defect in that sort of way”.

29. [43]

    In terms of the order in which he administered the necessary checks during the consultation with the complainant, the applicant said that he deferred the heart sounds check as he preferred to lie a patient down for this check and he saw that he also had to conduct an abdominal examination, which would involve her lying down. The applicant performed the skin check, and then noticed that he needed to do an ENT check and also a hernial orifice check. The latter surprised him as it involved what he described as an “intimate examination”, because a patient may have to pull down their trousers while in the standing position so that any lump or bump in the groin area could be seen. Underwear might also need to be pulled down to some extent, so as to see the lower part of the inguinal area.

30. [44]

    The applicant gave evidence that he told the complainant that her assessment involved a hernial orifice check and he wanted to check with Dr Muthurajah if she could accommodate her. There was no chaperone available at the practice that morning because a male nurse was working. The applicant said that he excused himself and left the room. He went across the corridor and tapped on Dr Muthurajah’s door, with gentle force. She did not respond and the applicant could hear her talking with a patient. Although the applicant looked in the direction of the CCTV camera as he was returning to his room, his evidence was that he did not know there was a camera there.

31. [45]

    Upon returning to his room, the applicant told the complainant that Dr Muthurajah was not available. He explained to the complainant what a hernia is and where it presents, and asked if she had any symptoms or sign of a hernia. The applicant also said that it might be necessary to examine her to see if there was any bulge or mass in the groin. At that point, the complainant interrupted him and said that her friend did not have this done. The applicant recalled telling the complainant that it was very important for her and her employer because if she had any problem, she would get the opportunity to fix it. Alternatively, her employer could give her some protective measures to work safely. His evidence was that the complainant replied, “I’m on my period and I have no hernia”.

32. [46]

    Perceiving that the complainant was reluctant to be examined, the applicant said to her, “That’s fine, you don’t want to have this examination. I would like to leave this portion but I need to document that”. I have set out above at [39] what the applicant wrote in the comments section of the medical assessment form (Ex 5). The applicant denied telling the complainant that she needed to have a vaginal examination for part of the hernia check, and he denied telling her she needed to have an internal examination.

33. [47]

    The applicant’s evidence was that it was only following this discussion with the complainant that he conducted the ENT examination, for which he put gloves on. He then did the heart sounds check, asking the complainant to get up on the bed. He gave evidence that he explained that he needed to put the stethoscope on her left breast to listen to the heart sound and that she replied that was ok. He said he did not recall placing the stethoscope on the complainant and did not recall being aware of the location of her nipple, but that his everyday practice was to put the diaphragm of the stethoscope in the fifth intercostal space about five centimetres from the sternum and the joining point of the midclavicular line. He might have changed the position in order to get a good or highest sound. He said that he then moved the stethoscope to other locations.

34. [48]

    The applicant recalled that he did not ask the complainant to remove her clothes at all, as she was young and he thought he could hear her heart sound. His evidence was that he listened to the heart sounds for a proper medical purpose and did not know where her nipple was at the time he was using the stethoscope.

35. [49]

    The applicant next told the complainant that he would examine her abdomen, which, according to the form, was required. He did so to see if there was “any abnormal mass or enlarged organ”, which involved palpating her abdomen above the waist line with his right hand, using medium pressure. The applicant’s evidence was that after finishing the abdominal examination he took off the gloves he was wearing and put them in the bin under the sink. He did not place them in the biohazard bin because he did not come into contact with any bodily fluid.

36. [50]

    The applicant said that he did not undertake any examination of the hernial orifices or masses on the complainant when she was lying down, and at no stage did he ask the complainant to move her pants. He also said that at no stage did he place his hand over her vagina in a “cupped fashion”.

37. [51]

    In cross-examination, the applicant denied that he thought the complainant was an attractive young woman and wanted to touch her body in a sexual way. In relation to count 1, his evidence was that the ideal procedure for a heart sounds check was to have the patient lying down. The applicant denied that he intended to get the complainant on the bed so that she was more physically accessible to him. In relation to counts 2 and 3, the applicant maintained his evidence that a hernia check involved examining what was in his view an intimate area. He disagreed that it was not necessary to expose any area at or below the public bone in order to observe adequately the occurrence of an inguinal hernia. He also disagreed that visualising the inguinal region was not an intimate examination.

The grounds of appeal and the applicable principles

1. [52]

   By ground 1 of the applicant’s notice of appeal, which related to his conviction on count 3 (the aggravated sexual intercourse offence), the applicant acknowledged that by its verdict the jury had accepted the complainant’s evidence that the applicant had, in the course of the medical examination, digitally penetrated her vagina (count 3). The jury had also rejected his evidence that this act had not occurred. However, the applicant submitted that the complainant’s evidence did not provide a sufficient basis on which the jury could find the offence proved beyond reasonable doubt having regard to all of the evidence, emphasising the following:

   1. (1)

      inconsistencies in the complaint evidence which could not be sufficiently explained, the complainant having spoken to Ms Rich and Ms Abbatantuono shortly after the consultation;

   2. (2)

      the absence of the complainant’s DNA on any of the gloves located in the applicant’s consultation room in circumstances where, on the expert evidence, that result was “unexpected”; and

   3. (3)

      the footage from the CCTV camera located in the corridor outside the applicant’s consultation room, which the applicant contended was intractably equivocal and could not sustain the Crown’s reliance upon it as evidence of consciousness of guilt on his part.

2. [53]

   Count 1 on the indictment, being the first of the sexual touching counts which the Crown alleged occurred during a heart sounds check, was the subject of ground 2 of the notice of appeal. The applicant submitted that on all of the evidence it was not open to the jury to conclude that the Crown had proved beyond reasonable doubt that the applicant did not have a proper medical purpose for touching the complainant’s nipple over her clothes with the stethoscope. The applicant also emphasised that the conduct constituting this count was not included in the complainant’s first police statement dated 18 October 2022, and that she did not give evidence that she had made a complaint about it specifically.

3. [54]

   Count 2 on the indictment, the second of the sexual touching counts, was the subject of ground 3 of the notice of appeal. The applicant submitted that the Crown case rested on the complainant’s evidence, which he submitted was internally inconsistent, supported only by limited complaint evidence, and directly contradicted by the applicant’s evidence. The applicant also submitted that if the Court concluded that the verdicts on counts 1 and/or 3 were unreasonable, the quashing of the conviction(s) may serve to undermine the complainant’s credibility on count 2.

4. [55]

   The parties were not in dispute as to the principles applicable to an unreasonable verdict ground. In Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 the Court explained the function of a court of criminal appeal in determining an appeal on that ground by reference to the earlier decision of M v The Queen (1994) 181 CLR 487; [1994] HCA 63, stating:

5. [56]

   At [9] of Dansie, the Court extracted what it described as the “carefully crafted” passage in M v The Queen (at 494-495) regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

6. [57]

   The jury’s advantages are not confined to witness testimony and may extend to all of the evidence in the trial, to which they bring their collective wisdom and experience of ordinary affairs: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [9] (“ZT”). In relation to witness testimony, the advantages of the jury may extend to an assessment of matters such as “the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers)”: ZT at [10].

7. [58]

   In summarising the applicable principles in Smith v R [2025] NSWCCA 104, Bell CJ made the following observations concerning witness evidence which are of particular relevance in the present case:

Ground 1: the verdict on count 3 (aggravated sexual intercourse without consent) was unreasonable

1. [59]

   The applicant submitted that the absence of the complainant’s DNA on any of the seized gloves significantly detracted from the strength of the Crown case on this count. The applicant also submitted that the Crown case was not supported, and indeed was positively undermined, by the complaint evidence, while the CCTV footage and medical assessment form, along with the applicant’s good character, were also at least capable of supporting a reasonable hypothesis consistent with innocence: that the complainant’s back and forth protestations with the applicant resulted in the applicant not performing a hernia examination. The applicant submitted that this hypothesis was one that could not be said to have been eliminated by the jury’s benefit in seeing and hearing the evidence.

2. [60]

   I will start the analysis of the ground with the complaint evidence, which was the first matter the applicant addressed orally on this ground, before moving to the DNA and the other matters.

3. [61]

   In support of the complainant’s evidence on count 3, the Crown relied at trial on evidence of complaints that she made shortly after the appointment with the applicant, first to Ms Rich and then to Ms Abbatantuono.

4. [62]

   On appeal, as at trial, it was the applicant’s position that the complainant’s initial complaint to Ms Rich was guided by Ms Rich, rather than being an unprompted disclosure. The applicant submitted that it was pressure from Ms Rich that led to the complainant making a false complaint to police.

5. [63]

   The applicant submitted that the terms in which the complainant made her first complaint to Ms Abbatantuono, and other communications with her on 18 October 2022, were consistent with his case (and his annotation on the medical assessment form) that he did not carry out any hernia check. When the complainant gave a fuller account to Ms Abbatantuono the following day, she again did not make any specific complaint about digital penetration. The appellant submitted that there was neither a basis in the evidence nor an avenue of reasoning by which the exculpatory effect of the inconsistencies in the complaint evidence could be put to one side as not giving rise to any reasonable doubt on count 3.

6. [64]

   It was not in dispute that the complainant did not stop at the reception of the medical practice, deciding instead to go outside, order an Uber and call Ms Rich, who had recently attended a medical examination. While she was waiting for her ride outside the practice, the complainant rang Ms Rich using Microsoft Teams. Phone records established that the complainant made that call at 11:29 am, approximately four and a half minutes after she was seen in the CCTV footage exiting the consultation room. The complainant gave the following evidence about that phone call:

7. [65]

   Ms Rich’s evidence of this initial conversation was consistent with the complainant’s:

8. [66]

   In cross-examination, the applicant’s trial counsel put to the complainant that Ms Rich had jumped to a conclusion that she had been, in her words, “front ended” before the complainant told her anything. The complainant disagreed:

9. [67]

   The applicant submitted on the appeal that the complainant’s initial complaint to Ms Rich involved inquiring of Ms Rich whether she had an internal examination during her medical assessment before agreeing with the leading question that she had been “front ended”. It is the case that Ms Rich’s question was leading. However, the question was directed at the manner of the internal examination rather than the fact of it occurring. The complainant’s evidence in the above exchange was that she had raised with Ms Rich that she had an internal check, disagreed that she had been “back ended” and agreed that she had been “front ended”.

10. [68]

    The complainant said that she did not provide any more information to Ms Rich at this point as her rideshare vehicle arrived and she did not want to talk in front of the driver. However, while in the car the complainant exchanged some text messages on Microsoft Teams with Ms Rich. She agreed in cross-examination that she did not go into greater detail about what occurred in those messages, saying that this was a work messaging service. The messages, which were in evidence (Ex 8), included the following exchange:

11. [69]

    Ms Rich gave evidence that she wrote the first of the above Teams messages that said, “Please call HR now” because “from what our earlier conversation was, which I don’t remember the exact wording, but she [the complainant] wanted to verify that what happened in the health check was definitely not supposed to happen” (emphasis added). Ms Rich also recommended that the complainant call the police and said that ultimately the police would need to be involved because she knew, on the basis of her own health check, that “what had happened in her health check was not supposed to happen”. Ms Rich then pulled back in her advice because she did not want the complainant to feel pressured. The complainant accepted in cross-examination that Ms Rich told her she should inform the police, but pointed out that Ms Rich also said to her that she should talk to Ms Abbatantuono first.

12. [70]

    The complainant gave evidence that, on her return to the office, she and Ms Rich spoke further about what happened. In her evidence in chief, the complainant said she was embarrassed and a bit stressed out at that time. She thought she probably apologised to Ms Rich for calling her “and then, kind of, explained in a bit more detail about what happened than I had over the phone briefly outside”. She could not recall how much detail she went into.

13. [71]

    Ms Rich remembered having a conversation with the complainant when she returned to the office. She did not remember the exact specifics but the complainant definitely spoke to her in more detail about what had transpired although it was not, in her words, “a start-to-finish conversation” and she could not confirm precisely when the complainant said particular things to her. In terms of what she remembered, Ms Rich gave the following evidence:

14. [72]

    In cross-examination, the complainant accepted that she said to Ms Rich in this conversation that after she referred to her period, the doctor kept insisting and saying things like, “It’s really important”. However, she denied the suggestion that she used the words “I’m on my period” when she was still talking to the doctor about what was going to happen in the examination, as opposed to during the examination. Ms Rich’s evidence above was consistent with the complainant’s response in this regard.

15. [73]

    Ms Rich’s evidence of this conversation included the complainant telling her that her pants were open and pulled down a little for the abdominal check, and that the applicant had “just reached in there”. The applicant highlighted on the appeal that this evidence was inconsistent with the complainant’s evidence in chief about this part of the consultation, namely, that her pants were done up above her waistline. This submission ran together two questions and answers from the complainant’s evidence in chief, which I reproduce below with the preceding question for context:

16. [74]

    The location of the applicant’s pants relative to her waistline is not apparent on this evidence. Rather, the complainant’s response to the first question was that the applicant pressed on her stomach just above the waistline of her pants. Nonetheless, it is the case that the complainant’s evidence was that her pants were done up during the abdominal check, whereas on Ms Rich’s evidence she said that her pants were open and pulled down a little for the abdominal check. Ms Rich’s evidence that the complainant told her in this conversation that the applicant had given her the red file at the end of the consultation to take to the front counter on her way out was also, in the applicant’s submission, inconsistent with the complainant’s evidence in cross-examination that she was not sure if she was supposed to take the paperwork but did not remember the applicant saying to her to give it to the front counter. However, neither of these differences significantly undermined the complainant’s interactions with Ms Rich, the first occurring within 4 minutes of the consultation ending, as highly compelling circumstantial evidence that supported both the complainant’s reliability and credibility.

17. [75]

    In so far as the applicant relied on evidence of Ms Rich’s encouragement to the complainant to go to the police, the complainant rejected in cross-examination the suggestion that she had taken that step because of Ms Rich. Her evidence in chief was that she approached the police because she saw the email response from Logic Health that day, which referred to an internal investigation, and she “kind of felt like it wasn’t going to be enough and that it should probably go to the police”. The complainant said, “given the context of what had happened and how I was feeling, as well as advice from my colleague who knew about it, I thought it should go to the police instead”. The colleague was Ms Rich, who went with the complainant to Newtown Police Station that afternoon. It was apparent from that evidence that the complainant was assisted by Ms Rich, who accepted that she had given the complainant some advice. However, as the respondent submitted, the evidence of neither woman rose to the level of Ms Rich exercising pressure that caused the complainant to complain, let alone caused her, in complaining, to lie about what occurred.

18. [76]

    At 11:47 am on 18 October 2022, the complainant sent a message to Ms Abbatantuono, which stated: “Hey Bec. I’m sorry to bother you but when you’re free may I please speak to you regarding my health check I’ve just completed” (Ex 9). At 1:12 pm, a second message was sent from the complainant’s phone, which stated:

19. [77]

    The complainant’s evidence was that Ms Rich drafted this second message, having asked to see the original message she sent to Ms Abbatantuono and telling her that she (Ms Rich) did not think the complainant had made it clear enough, and asked if she could draft something. The complainant was next to Ms Rich when she drafted the message and she had no issue with it being sent, saying that it conveyed the urgency which was the main point.

20. [78]

    Ms Rich’s evidence was that the complainant showed her the initial message she had sent to Ms Abbatantuono, and Ms Rich told her that she needed to let Ms Abbatantuono know that there was something wrong that she needed to pay attention to. She offered to draft something for the complainant to read first and, if she was comfortable, to send it. Ms Rich said that the complainant was not feeling good at the time, was nervous and upset, and kept saying to her, “I just feel stupid” and did not want people being disturbed and upset because of her being stupid. Ms Rich’s evidence in this regard was, again, consistent with the very first text message that the complainant sent Ms Rich in the car, in which she wrote, “and I’m an idiot so I was like I don’t know but I really don’t think that’s how you do that”. Ms Rich wrote the words “very inappropriately touched” in the message to Ms Abbatantuono because of what the complainant had told her.

21. [79]

    Ms Abbatantuono rang the complainant. The complainant’s evidence in chief was that she told Ms Abbatantuono that there had been an incident with her medical assessment involving an internal exam. She said that her main concern at that point was to figure out if that was something that was accidentally included, or what she was supposed to do from there. When asked if she told Ms Abbatantuono at that point what happened in the consultation room, the complainant said: “Not in full detail, just that I was touched inappropriately. But I didn’t go into detail about the internal part of that”. I note in passing that having been touched inappropriately was referenced in the text message that Ms Rich drafted on the complainant’s behalf. When the complainant was asked why she had not gone into more detail, she replied:

22. [80]

    The applicant’s trial counsel returned in cross-examination to the complainant’s evidence that she had not told Ms Abbatantuono over the phone in full detail what happened and that she did not go into detail about the internal part. He put to the complainant that she did not tell Ms Abbatantuono that there had been any internal examination. The complainant disagreed, stating that she mentioned it but did not explain exactly what happened and how it happened at that time, over the phone. She also disagreed with the proposition that when Ms Abbatantuono came back to her, after confirming with Logic Health that an internal examination was not required, the complainant did not tell her that such an examination had occurred. The complainant’s evidence was that her having had an internal examination was the reason Ms Abbatantuono asked Logic Health if one was required or not.

23. [81]

    In cross-examination, the complainant agreed that when she spoke to Ms Abbatantuono she said words to the effect that the doctor was quite persistent and needed to examine her internally, and that the only thing that deterred him was saying that she had her period. Returning to this evidence the next day, the applicant’s trial counsel put to the complainant that she went on to tell Ms Abbatantuono that the doctor said he would need to write this down as a refusal. The complainant’s evidence was that she did not remember the word “refusal”, she thought he had said “non-compliant”.

24. [82]

    The evidence of Ms Abbatantuono was broadly consistent with the complainant’s evidence about the content of the first conversation. Ms Abbatantuono recalled that in the first call, the complainant “wanted to understand if the hernia part of the assessment was meant to be internal or not”. Ms Abbatantuono recalled that she was unsure and told the complainant that she would check with Logic Health. When asked if the complainant gave her any factual detail about what happened during the consultation, Ms Abbatantuono said:

25. [83]

    In cross-examination, Ms Abbatantuono confirmed that in their initial conversation the complainant said that the doctor was quite persistent and he needed to examine her internally and that the only thing that deterred him was her saying that she was on her period. The complainant also said that the doctor told her he would need to write it down as a refusal in the medical assessment form.

26. [84]

    One significant difference between the evidence of the complainant and Ms Abbatantuono was that the complainant denied that she was intending, by what she said to Ms Abbatantuono, to convey to her that there had not been any internal examination. The same issue regarding what the complainant conveyed and what she intended to convey arose in the context of her evidence about the first of a number of Teams messages that she sent to Ms Abbatantuono following the phone call (Ex 9). At around 1:23 pm, the complainant wrote:

27. [85]

    The complainant’s evidence in chief was that this message was about the hernia check that the applicant performed. The complainant said that she was very embarrassed by the whole thing and with how upset Ms Abbatantuono was when she told her what had happened. Consistently with this evidence, when Ms Abbatantuono was asked if the complainant had described how she was feeling in the course of the original call, she recalled that the complainant kept saying how worried she was about how this was going to impact her employment and that she was making a fuss.

28. [86]

    In cross-examination, the complainant gave the following evidence about the Teams message:

29. [87]

    The applicant submitted on the appeal that this evidence did not remove, in the sense of allow to be resolved, the reasonable doubt that must be raised by an initial complaint to Ms Abbatantuono, the human resources manager, which did not include a narration of the offence. I do not accept that submission. As the respondent submitted in relation to this passage, the complainant’s explanation as to what she meant by the word “intervene” was cogent and consistent with her own account as to what had happened during the consultation with the applicant. It was also consistent with her account to Ms Rich, on Ms Rich’s evidence, with the complainant having told her that she said to the applicant that she was on her period “during” the hernia examination.

30. [88]

    The terms of the complainant’s first exchanges with Ms Abbatantuono were also consistent, in my view, with the complainant’s evidence that she was reticent to be explicit and her explanation as to why. The complainant did not know Ms Abbatantuono and she was speaking to her over the phone from the office and then messaging her over a work messaging platform, about a very sensitive matter that had, on her evidence, occurred very recently. She gave evidence that she was embarrassed (describing herself to Ms Rich as an “idiot”) and was concerned about “making a fuss”. The complainant referred to a number of these things when she provided more detail to Ms Abbatantuono the following day, to which I will turn shortly.

31. [89]

    The applicant relied on the discussion that Ms Abbatantuono had that same day with Blake Biffin of Logic Health. Ms Abbatantuono summarised this discussion in an email, which stated (omitting formalities) (Ex 11):

32. [90]

    In relation to the second bullet point, Ms Abbatantuono gave evidence that the complainant had not given her a detailed explanation of what had happened during the consultation about that point, saying that the complainant advised her of the applicant’s insistence but not of any further action that took place. So much may be accepted but it does not relevantly advance the applicant’s position on this issue.

33. [91]

    On 19 October at 9:17 am, the complainant wrote a further Teams message to Ms Abbatantuono, which said:

34. [92]

    The complainant’s evidence in chief was that she sent this message to make Ms Abbatantuono aware that she had reported the matter to the police and also to let her know that she had not told her everything the day before that had happened in detail.

35. [93]

    Ms Abbatantuono confirmed that she received this message from the complainant. The police visited her and after that the complainant came and spoke to her. Ms Abbatantuono gave evidence that the complainant explained “more detail than she had provided the day before”. Ms Abbatantuono said the complainant told her that the doctor had laid her down and had tried to actually physically examine her internally, clarifying that “he physically touched her” and that she was touched “in her vulva, vagina”. Ms Abbatantuono gave evidence that the complainant still seemed a little bit shaken, and was very worried about how this might impact work. When asked whether the complainant had told her why she had not gone into full detail the day before, Ms Abbatantuono said: “Just that she felt very uncomfortable about what had happened and didn’t want to share that. And she didn’t want to make a fuss about everything.”

36. [94]

    The applicant submitted on the appeal that when the whole story as to complaint was put before the jury, it involved the ineradicable fact that even on the complainant’s evidence she had given versions which did not include digital penetration, and it could not be explained why she would “leave out the most important thing”. For the reasons I have outlined above, I do not accept that submission. The recency of the distressing event and its highly personal nature, taken in combination with the fact that the complaint conversations occurred in a workplace setting and, in the case of statements made to Ms Abbatantuono, to a human resources manager with whom the complainant had not previously interacted, makes it wholly explicable that the complainant would not have described in complete detail the most personal and intimate aspects of the allegation.

37. [95]

    On the evening of 18 October 2022, members of the New South Wales Police Force executed a search warrant at the applicant’s consultation room. Relevantly, police seized four gloves from the metal garbage bin located underneath the chute in the sink, and two gloves from the biohazard bin. The officer in charge gave evidence that in accordance with standard forensic procedure, for hygiene reasons and to prevent the transfer of DNA and other contaminants, the searching officer repeatedly changed her gloves during the course of the search.

38. [96]

    Detective Senior Constable Cameron reviewed the CCTV footage from 18 October 2022 between 10:20 am and the time of the police search of the applicant’s consultation room. He determined that no staff member was shown in the footage during this period entering the consultation room or exiting in visible possession of rubbish or clinical waste.

39. [97]

    Dr Alexandra Summerell, a scientist with the Forensic Analytical Science Service who specialises in the analysis of DNA, gave evidence at trial. The evidence was that 24 swabs were taken of the six gloves the police found in the applicant’s consultation room upon executing the search warrant. A table summary of the outcome of Dr Summerell’s testing of those swabs was tendered as Ex 17. Exhibit 17 recorded that two samples were taken from each of the index and middle fingers of the six gloves, one sample from the inside of the finger of the glove and one from the outside, with 24 samples in total. Only four of the swabs yielded positive results that were, in Dr Summerell’s words, “suitable for comparison”. Of those four positive results, only one was referable to the applicant, and none was referable to the complainant.

40. [98]

    For many of the swabs, the result was recorded in Ex 17 as “DNA testing was unsuccessful” with the accompanying “Expert Comment”: “There was either no DNA detected or the amount of DNA detected was below the laboratory threshold for routine further DNA testing”. Dr Summerell explained what this comment meant:

41. [99]

    Dr Summerell was informed that the allegation on count 3 was that the applicant digitally penetrated the complainant’s vagina inside the examination room and was asked if she could “suggest reasons why [the complainant’s] DNA was not located on any of the gloves retrieved”:

42. [100]

    In terms of removal of possible DNA from a surface, Dr Summerell’s evidence was that general washing or wiping, or wiping using a cleaning solution, bleach or alcohol can remove DNA. Alternatively, general touching could lead to transferring DNA to other surfaces, depending on factors including how many touches there has been.

43. [101]

    In closing, the Crown submitted that the absence of the complainant’s DNA on any of the gloves retrieved from the two bins in the consultation room was of little consequence and was neutral evidence because of the entirely acceptable reasons for the absence of the complainant’s DNA. The Crown referred to each of the explanations Dr Summerell had raised in her evidence, and submitted that the jury could use those reasons to assist in understanding why DNA was not found on any of the gloves seized. The applicant’s trial counsel, on the other hand, submitted that the DNA evidence was not neutral but was instead a significant feature that the applicant relied upon as consistent with the truthfulness of his evidence that there was no digital penetration. Counsel returned to the DNA towards the conclusion of his closing submissions, addressing each of the scientific reasons to which Dr Summerell referred and on which the Crown relied, in support of the ultimate submission to the jury that it was highly unlikely that any of them were relevant in the present case. Senior counsel submitted:

44. [102]

    The applicant’s submissions on appeal reflected the submissions put on his behalf at trial. The applicant submitted that in the absence of any evidence supportive of the underlying propositions, the “so called scientific explanations” were speculative. That left, the applicant submitted, the possibility that there could have been no contact between the gloves seized and the complainant’s vagina, which Dr Summerell said would be unexpected in the present case because vaginal fluid was a rich source of DNA. The applicant submitted that this possibility was exculpatory because the only explanation that the jury was entitled to accept was that there was no contact between the gloves seized and the complainant’s body.

45. [103]

    As the respondent properly accepted, the absence of a finding of the complainant’s DNA on the gloves, together with the evidence of Dr Summerell that it would be unexpected that DNA would not be found, was evidence that the jury had to take into account when considering whether there was digital penetration as alleged in count 3: R v Tau [2021] QCA 289 at [21]. However, the evidence in Exhibit 17 indicated the samples tested were taken from two fingers of each glove. The complainant’s evidence was that the applicant inserted a finger of one hand (his right) into her vagina. Whilst she was certain the applicant used his right hand, she could not say with certainty which finger he used. That the middle and index fingers of the gloves were sampled proceeded on an assumption that one or other of those fingers was likely to have been inserted. It did not follow inexorably from the absence of the complainant’s DNA from two fingers of each of the gloves seized, that the only explanation the jury was entitled to accept was that there was no contact between the gloves and the complainant’s body.

46. [104]

    It was necessary for the jury to consider the evidence in the summary together with Dr Summerell’s evidence, and to weigh it against the other evidence in the trial bearing on count 3, including the evidence of the complainant and the complaint witnesses, to which I have referred in detail above. In light of the strength of the latter evidence, the evidence regarding the absence of the complainant’s DNA from the gloves seized during the search was not “so overwhelmingly an exculpatory feature of the evidence that the jury should have been left with a reasonable doubt as to the applicant’s guilt” on count 3: Inia v R [2020] NSWCCA 205 at [79].

47. [105]

    I have referred above to the relevant CCTV footage as well as to the relevant part of the medical assessment form.

48. [106]

    The Crown relied at trial on the CCTV footage at two points, namely, when the applicant left his room during the consultation with the complainant, and just after the complainant left his room at the conclusion of the consultation. The Crown submitted that the appearance and behaviour of the applicant as shown on the CCTV at the first point was evidence of his intention to sexually offend against the complainant and at the second point demonstrated his consciousness of guilt:

    1. (1)

       At the first point, the Crown contended that the applicant’s movements were designed to be recorded on CCTV as part of a ruse intended to conceal his offending, corroborating a false account that he had acted properly in seeking the assistance of a female doctor to conduct an intimate examination for a hernia. In this respect, the Crown submitted that the footage depicted the applicant pretending to tap on the door, and that in looking at the camera when he returned to his room he confirmed his interest in the CCTV recording exculpatory behaviour.

    2. (2)

       At the second point, the Crown contended that he appeared to be in a state of panic and demonstrated his fear that the complainant would report him.

49. [107]

    The trial judge directed the jury, in terms with which the applicant had no complaint on appeal, that in order for the jury to use that evidence in the way contended for by the Crown, it must be satisfied that the only reasonable interpretation of the applicant’s conduct as depicted in the footage was that it demonstrated what the Crown contended it demonstrated. Further, even if the jury were so satisfied, this evidence could not be used to prove guilt on its own, that this evidence was only one piece of evidence in the Crown case and the jury would need to take care not to consider it in isolation or give it undue weight.

50. [108]

    The applicant submitted that, contrary to the inferences the Crown sought to draw from the CCTV footage, the relevant parts of the footage were, at their highest, intractably equivocal. Rather than the sinister inferences the Crown sought to draw from the evidence, the applicant submitted that:

    1. (1)

       at the first point on which the Crown relied, the applicant’s conduct was consistent with his evidence that he attempted to obtain Dr Muthurajah’s assistance, showing him tapping on the door and listening at the door (there being no audio to establish that he had not in fact knocked); and

    2. (2)

       at the second point, his conduct was consistent with his evidence that he wanted to let Dr Muthurajah know that a patient may be coming to see her to complete a hernia check, the complainant having on his evidence refused the examination, which the applicant recorded on the medical assessment form.

51. [109]

    The jury was directed, in unimpeachable terms, as to the constraints on using the evidence of the CCTV footage in the manner for which the Crown contended. As the respondent submitted, consistently with the terms of that direction, the jury may well not have used the CCTV footage as supportive of the Crown case. The footage was otherwise consistent with the applicant’s evidence, but it was also not inconsistent with the complainant’s evidence, which included that the applicant had absented himself from the room for a brief period, later providing an explanation for why he had done so in the course of telling her an internal check for hernias was required. Considered with the other evidence in the case, the CCTV footage was not of a nature that called into question the reliability of the complainant’s account, such that it was not open to the jury, having seen her give evidence, to accept that account beyond reasonable doubt.

52. [110]

    Having undertaken an independent review of the evidence in the trial, I am satisfied that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 3. For the reasons I have given above, the matters on which the applicant relied, considered individually or collectively, did not call for a contrary conclusion. I would dismiss ground 1.

Ground 3: the verdict on count 2 was unreasonable

1. [111]

   Although it was the final ground of appeal, I will address count 2 next as, on the complainant’s evidence, it formed part of the hernia check. The applicant submitted that the evidence in the Crown case on count 2 was the complainant’s evidence together with “vague and imprecise” allegations that she made to Ms Rich and Ms Abbatantuono. The applicant submitted that there was a critical internal inconsistency in the complainant’s evidence, in that she alleged that the applicant was able to reach under her cargo pants to cup her vagina while also giving evidence that during the abdominal check, performed immediately prior to the hernia check, her pants were done up above her waistline.

2. [112]

   The applicant also submitted that the complainant’s evidence that her pants were loose fitting was inaccurate, relying on a photograph of the complainant in the clothing she was wearing on 18 October 2022, which was in evidence (Ex 6). The applicant called attention to tension that could be seen on the top button of her pants, as well as stretch lines visible around the waist and groin areas. The applicant submitted that on the evidence, the possibility could not be discounted that the applicant was not able to gain access with his left hand underneath the complainant’s buttoned up, tight fitting cargo pants that were sitting above her waistline, even making full allowance for the jury having seen and heard her evidence.

3. [113]

   As I noted above at [32] and [74], the complainant’s evidence was that the abdominal check was carried out above the waistline of her pants, not that her pants were above her own waistline. Properly understood, the complainant’s evidence was that her pants were sitting somewhere below her belly button, which she described as “just below” but as to which no further detail was provided or asked for. There is thus a difficulty with the premise of the applicant’s submission that on the Crown case, the applicant needed to gain access to pants that were sitting above the waistline to perform the abdominal check.

4. [114]

   Further, the photograph on which the applicant relies, in which the waistline of the complainant’s pants is obscured for the greater part by a cardigan, does not evidence that the pants were too tight for the conduct alleged to have occurred, particularly when considered in light of the complainant’s evidence. The complainant said that the applicant “pushed” his left hand down her pants, which she described as loose fitting compared to her bodysuit. As the respondent submitted, the complainant’s description of the applicant “pushing” his hand down her pants permitted an inference that the pants provided some resistance against the applicant’s hand. Having regard to the matters on which the applicant relied in the context of the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 2. I would dismiss this ground.

Ground 2: the verdict on count 1 was unreasonable

1. [115]

   Count 1 of the indictment alleged that the applicant had sexually touched the complainant in the course of the heart sounds check. As I set out above, the critical issues on this count were whether the touching was sexual (element (b)) and whether the accused had a proper medical purpose for the touching (element (c)). The applicant emphasised the evidence of Dr Mackey and Professor Pepperell that I set out at [29]-[31] above, to the effect that the applicant would not have been able to feel or locate the complainant’s nipple with his stethoscope under the complainant’s clothing. The applicant relied on this evidence as meaning that it could not be proved that the touching was sexual.

2. [116]

   The applicant also submitted that the evidence demonstrated that the heart sounds check as conducted by the applicant had a proper medical purpose. Although the complainant’s evidence was that the applicant did not attempt to place the stethoscope anywhere other than over her breast, and that the applicant performed the check over the complainant’s shirt and bra, the evidence of Dr Mackey was that this method would not detract from the validity of the (negative) result of the examination given the youth, fitness, and health of the complainant.

3. [117]

   When one also factored in the applicant’s good character and the absence of complaint evidence directed to count 1, in contrast to the complaint evidence in relation to counts 2 and 3, the applicant submitted that the jury must have had a doubt about the credibility and reliability of the complainant’s allegations on this count. The applicant further submitted that even if the jury accepted the complaint evidence, the evidence of Dr Mackey necessitated an acquittal because it evidenced a lawful purpose for the touching. The applicant also submitted that if ground 1 were made out that would undermine the credibility of the complainant’s evidence that the touching the subject of count 1 was sexual.

4. [118]

   The term “sexual touching” is defined in s 61HB(1) of the Crimes Act for the purposes of Division 10 as meaning:

5. [119]

   Section 61HB(2) provides that the matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include: “whether the area of the body touched or doing the touching is the person’s genital area, anal area or breasts”, “whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification”, or “whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual”.

6. [120]

   Section 61HB(3) provides that touching “carried out solely for proper medical or hygienic purposes is not sexual touching for the purposes of this Division” (emphasis added). As the trial judge directed the jury, what the Crown had to prove beyond reasonable doubt was “that the sexual touching was not solely for a proper medical purpose”, which it could do “by proving either that there was no proper medical purpose or that, in addition to any proper medical purpose, the touching was also for another purpose”. Accordingly, the question is not whether the touching was or could have been medically justifiable, but whether a purpose of the touching was the applicant’s sexual gratification. A medical justification may support an inference that touching was undertaken solely for a proper purpose but is not dispositive.

7. [121]

   The Crown case that the touching was sexual rested on the evidence of the complainant, not only as to the particular event the subject of count 1 but also as to the examination as a whole, which included the conduct the subject of the other two counts on the indictment. The inference that the touching was sexual could be drawn, the Crown submitted, because of the series of sexualised acts that occurred one after the other over a period of 5 minutes and 36 seconds.

8. [122]

   It is the case, as the applicant submitted, that the complainant did not make an immediate complaint about the conduct the subject of count 1. The complainant gave evidence in chief that when she first spoke to the police she had forgotten the incident constituting count 1, but she mentioned it to the officer in charge well before her second formal statement on 27 October 2022. In cross-examination, she acknowledged that she did not disclose her concerns about the heart sounds check immediately to Ms Rich, and that it was not in her first police statement. In explaining the latter omission, the complainant said that “at the time I didn’t remember that part of the examination when I was talking about the other stuff with the police”. Having regard to the “other stuff” that was the subject of her first police statement, being the conduct the subject of counts 2 and 3, it was open to the jury, as the respondent submitted, to accept this was consistent with her relaying the more serious allegations first.

9. [123]

   The complainant also maintained in cross-examination that she had told the officer in charge about the stethoscope examination within two days of the consultation. That she did so was consistent with the evidence of complaint to Ms Abbatantuono about the applicant’s use of the stethoscope on her breast on 19 October 2022. Ms Abbatantuono also gave evidence that at that time, the complainant was “trying to process everything that was going on”. As the respondent submitted, the jury was well placed to evaluate these matters.

10. [124]

    The expert evidence to which the applicant called attention on this ground was consistent with the existence of a proper medical purpose for conducting the heart sounds check in the manner that the applicant did, although their view was that a check carried out in that manner was not proper, adequate, or satisfactory. However, their evidence did not foreclose the jury finding beyond reasonable doubt, allowing for the advantages it had, that the touching of her breast was sexual and for a purpose that was not solely for a proper medical purpose, particularly viewing the episode in its entirety which included the conduct constituting counts 2 and 3. That conduct would also likely have diminished the weight given to the applicant’s prior good character. As with the other grounds, having regard to the matters on which the applicant relied in the context of the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 1. Accordingly, I would dismiss ground 2.

Conclusion

1. [125]

   As I would grant leave to appeal against the convictions and dismiss the appeal, it is unnecessary to consider the contingent sentence appeal. Accordingly, I propose the following orders:

2. [126]

   IERACE J: I agree with Mitchelmore JA and the orders that her Honour proposes, based on my independent assessment of the evidence.

3. [127]

   MCNAUGHTON J: I have had the advantage of reading the draft judgment of Mitchelmore JA. I have considered the trial record carefully and have made my own independent assessment of the evidence. For the reasons set out by her Honour, I agree with the orders proposed.