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  • Unreported Judgment

R v Agnew

 

[2020] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Agnew [2020] QDC 157

PARTIES:

THE QUEEN

v

PETER JAMES AGNEW

(Defendant)

FILE NO:

1106/2020

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 June -24 June 2020

JUDGES:

Richards DCJ

ORDER:

The defendant is guilty of both counts on the indictment

COUNSEL:

S Cupina for the Crown

J Hunter QC for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Gilshenan and Luton for the Defendant

  1. [1]
    The defendant is a retired orthodontist. He started his career as a dentist in sole practice in a dental surgery on Stafford Rd at Stafford in 1976. The complainant came to work for him as a junior dental nurse sometime around May 1980 for a period of 6 months. She was 19 turning 20. The practice, which was situated on the first floor of a building was manned by the defendant, the complainant and a receptionist. Due to the passage of time since the events the subject of the charges, the identity of the receptionist is unknown. The charges in this trial arise during this period of employment of the complainant by the defendant.
  2. [2]
    There are two separate charges in this case to which the defendant has pleaded  not guilty. I have considered each charge separately although it is conceded by the defence, and I accept, that if I find the defendant guilty of one of the charges, in particular the indecent assault, it may be relevant in my consideration of the relationship that existed between the parties when considering the more serious charge of rape.  However, I also accept that if I have a reasonable doubt about the truthfulness or reliability of the complainant’s evidence in relation to one of the charges, then that is to be taken into account when assessing her truthfulness and reliability generally.
  3. [3]
    The crown having brought these charges, it is for the crown to discharge its burden of proving the guilt of the defendant beyond a reasonable doubt. He is presumed to be innocent. The burden rests on the prosecution to prove the defendant’s guilt and there is no obligation on him to prove his innocence.  In considering the facts I am entitled to accept or reject the evidence of any witness or I may accept their evidence whole or in part.  In this case however, because the complainant’s evidence is the only evidence of the rape, her evidence remains crucial to my consideration of the charges and if I do not accept her evidence in relation to that charge beyond reasonable doubt, then the defendant is entitled to be acquitted.
  4. [4]
    The defendant has given and called evidence in this case, that he has done so does not mean he has assumed the responsibility of proving his innocence.  His evidence and the evidence of the character witnesses called on his behalf is evidence that is simply added to that of the prosecution to determine whether the prosecution has proved its case beyond a reasonable doubt.
  5. [5]
    The evidence in this case falls into five categories.  Firstly, the evidence of the complainant.  Secondly, the evidence of Susan Tonks and the expert Professor Brown.  Thirdly, the evidence of preliminary complaint.  Fourthly, the evidence of the defendant that is encapsulated in the covert recording, the record of interview and his evidence and trial.  Fifthly, the character evidence.

The complainant’s evidence

  1. [6]
    The complainant’s evidence must be considered in light of the fact that there has been a long delay in reporting the incidents.  The incidents are said to have occurred 40 years ago and the accused was not advised of the allegations until the conversation between the two of them in 2016.  That delay has had an important consequence.  Her evidence cannot be adequately tested or met after the passage of so many years.  There is no doubt that there has been some potential evidence lost by reason of the delay.   Examples of this are the obvious general matters such as the lost opportunity to establish an alibi if one existed and the ability to have the complainant medically examined. Specific to this case is the inability to ascertain the identity of the receptionist who was working at Stafford at the time, the inability to take photographs of the setup of the surgery that may have differed from the complainant’s memory of events, the inability to get a photograph of the nitrous oxide delivery system that was in use at the time, the inability to check employment records and any documentation about the end of her employment, the inability to recall why he visited her home and generally an inability to recall events in detail around that time.  The fairness of the trial has necessarily been impacted by this delay and as a result I should not convict upon the complainant’s testimony alone unless after scrutinising it with great care and considering the circumstances relevant to its evaluation, I am satisfied beyond reasonable doubt of its truth and accuracy.
  2. [7]
    With that caution in mind, it is necessary to look at the evidence of the complainant.  The complainant gave evidence that she was young and naïve when she started working for the defendant.  She was the junior person in the office and the receptionist was older and not particularly friendly.  Things were formal in the office - she called the defendant Dr Agnew.  Her job as a junior dental nurse was to assist in the examination room, to clean the instruments and the surgery and to make small talk with the patient prior to the dentist coming in. She described her uniform as being one that she’d purchased at a department store. It was white with short sleeves, a collar and with a zipper down the front and pockets. 
  3. [8]
    She described the layout of the surgery with reasonable accuracy, although there was some slight difference in detail between herself and the defendant in relation to the layout of the back room.  She said that the back area (or tech lab) had a door to the back car park, tech work was done on the benches and there was a table just inside the back door which was like a small desk with a chair beside it.  She said the practise for lunch was that everybody did their own thing.  The defendant said that there was a door into the reception opposite the back door and that the table and chair/s were in a different position. He said that everyone ate lunch together generally.
  4. [9]
    The complainant said that she initially ate lunch in the tech lab until one day the defendant came in with a briefcase, put it on the table in front of her, opened it and pulled out a pornographic magazine.  He was sitting there flipping through it and showing her pictures from the magazine.  She excused herself after a short time saying she’d finished her lunch and she didn’t eat lunch in the back room again.
  5. [10]
    She described that after being shown the pornographic magazine, the defendant started to touch her when he came into the surgery when she was scrubbing the used instruments and putting them in the autoclave.  She said he would come into the room, close the door and put his hand up her uniform and momentarily grab her on the bottom.  She said he didn’t do it every time he came into the room.  This went on for a couple of weeks until she changed her routine so that she wasn’t at the autoclave at the time he was coming into the room.  She was unable to say anything to him at the time because there was always a patient in the room. 
  6. [11]
    She said after she changed her routine, nothing else occurred until she asked him to look at her tooth.  She said this occurred about a month or so later.  She had lost a filling and asked him if he would look at it for her.  He said he would, but it would have to be after work.  She said she was already wary of him so when he suggested staying back after work she rang her friend Susan Tonks, to ask her to come to the surgery to be there. 
  7. [12]
    On this particular day the surgery was closed, the receptionist was gone and the defendant was in the tech lab when her friend Susan came into the waiting room and sat down.  He came out of the tech lab, saw her sitting in the waiting room and came into the examination room, shut the door and said “what the hell is she doing there?”  The complainant said that she and Susan were going to a party afterwards.  She said he was annoyed that she was there.  (There is some inconsistency between her statement and her evidence on this point in that in her statement his query about Ms Tonks presence took place in front of Ms Tonks and not in the surgery. Ms Tonks remembers it as being told before she got to the surgery by the complainant that the defendant would not be happy about her being there.)
  8. [13]
    She said that once in the surgery she hopped into the dentist’s chair, he was on a stool behind her and to the side, he looked at her tooth and said that will need to be filled. He put the nitrous oxide mask on to administer gas.  She said she couldn’t work out what was going on, but she became really dizzy and disorientated.  She tipped her head to the left and saw that typically the ration should have been two or three to one nitrous oxide to oxygen, but when she tipped her head back she said “I thought that it said 16, that’s what I saw was 16 to one”.  She said at that time was when he put his hands over the top of her from behind and started undoing the zipper of the uniform.  She said she was holding on to his forearms trying to stop him, but he was too strong.  He was getting her uniform undone and at that stage Susan burst into the room and said “What’s going on?”  He rolled his chair back, she got out of the chair zipping up her uniform and they left.  She said he did not get a chance to touch her body but he undid her zipper to just above her waist.  She said she felt really dizzy, light-headed and disorientated.  She said it was hard to get out of the chair because of the horizontal position. She and Ms Tonks left in separate cars. This episode is the first count on the indictment.
  9. [14]
    She also gave evidence that during her time working for him he told her about his wife Leonie and how she used to greet him before their child was born at the door naked but since she was born, she was always neck to knee when she greeted him.  He said he married Leonie because she came from a wealthy family and that her best friend was Deborah Hutton.  He also showed her where he kept the gold from people’s teeth and a second set of books for the tax man.  She also said that he told her if she told anyone about anything that went on in the surgery he would make sure she was blacklisted.
  10. [15]
    She said he came to her flat one Saturday night.  It was Stradbroke Cup Day.  She did not realize he knew where she lived but he knocked on the door around 7.30 or 8pm.  He was dressed in a brown roll-neck jumper and a leather jacket.  He came to the house and stayed for about 10 minutes.  He did not give her keys; he did not give her anything work-related. 
  11. [16]
    The last act alleged is the charge of rape.  She says she was closing down the office one day.  She was the last one there.  As she did her usual daily routine of cleaning the surgery after the last patient, doing the instruments and the autoclave and wiping down the drill pieces. She left the exam room and walked out to the door of the surgery, looked across and saw the business across the way was dark, so she went down the internal stairs and shut the door leading to the street.  She then went back up the stairs and shut the landing door and turned off the lights in the reception room.  She said as she turned the lights off the accused came in through the lab tech door.  He walked over to her, pushed her to the floor, pulled down her underwear and raped her.  She said kept saying “no” over and over, she was kicking the door with her left foot and crying.  She said she did not know whether it was because he did not know if the office across the way was closed or if she was crying but he let her up.  She said his penis was erect and it was very sudden so penetration was difficult. He was not wearing a condom and he did not ejaculate. She went out to the tech lab where she had left her handbag on the bench, picked it up and left and the next morning she called him and resigned. 
  12. [17]
    It was submitted by defence counsel that she was repeatedly deploying loss of memory in cross-examination in order to avoid answering questions that she thought might pose difficulties.  It is fair to say that she did say she could not recall matters on a  large number of occasions, however that was chiefly in relation to conversations she had had with the police, how her statement was taken or the conversation she had had with her partner, Mr Flint, when she first complained of the assault.  She also had difficulty recalling the make and type of gas gauge on the nitrous oxide.  There was however little inconsistency in her account of what happened in relation to the conduct between herself and the defendant.
  13. [18]
    The defendant’s counsel has also urged caution in assessing the complainant by reference to her demeanour, citing Pell v The Queen [2020] 376 ALR 478 and The Queen v BCB [2011] QCA 314.  Those cases have underlined the need to exercise extreme caution in using demeanour to address questions of consistency, reliability or truthfulness. I accept that caution should be exercised in the use of demeanour to bolster a complainant’s evidence. It is a factor to consider in this case and no more than that. 
  14. [19]
    Generally in relation to her credit, aside from the fact that the allegations are very old and that brings the attendant difficulties already discussed, the defence suggest that her deflection in cross-examination about the matters that were more recent shows a determination not to answer questions that were inconvenient.  Particularly, the defendant points to the conversation with the police officer, Shaw, in 2015. The complainant had difficulty remembering signing her notes, the detail of the conversation with her and whether she told her she had pushed the defendant off her to get away.   Her inability to recall the detail of a conversation that she had five years ago is unsurprising, and the differences she was asked about were not contained in the notes she signed but in a QPRIME report that she had not seen.  It is assumed in that submission that the police officer accurately entered the details in QPRIME of a conversation that she did not otherwise record.
  15. [20]
    She also had difficulty remembering the physical location of the gas gauge, the detail of her conversation with her former partner Flint and some small differences in her statement.

Evidence of Susan Tonks and Professor Brown

  1. [21]
    Susan Tonks was called to give evidence in relation to Count 1 on the indictment.  At the time of the offences she was a friend of the complainant.  They had been friends in primary school and high school. The complainant regarded her as her best friend. 
  2. [22]
    She said attended the clinic one night in the early evening around six. ( The defence submit that she was wrong about the time and I accept that this is likely but in my view that is not a significant inconsistency)  She came in via the rear stairs. When she walked in the complainant was in the reception area, they spoke briefly and then the complainant went into the treatment room.  She said the defendant was in the treatment room at the time.  She said she thought she was briefly introduced to him but she did not have any real conversation with him.  She sat in the waiting room and the treatment door was closed. 
  3. [23]
    She said after a short while she heard noise from the treatment room and some conversation.  After about 15 to 20 minutes she heard the complainant saying “no” and some laughter and something falling to the floor like a tray.  She said the complainant sounded a bit slurred as though she was a little bit intoxicated.  She said she got up and walked into the treatment room. 
  4. [24]
    When she walked in she saw the complainant was in disarray.  She was laughing but she was also trying to get out of the dental chair.  The dentist had her uniform partly unzipped at the front and he had the aspirator around where her uniform was opened.  He was off to the side but kind of behind her.  She said the complainant was trying to get up out of the chair but she was struggling to do so.   The zip of her uniform was down below her bra line.  She said the dentist was trying to place the aspirator around her breast area and he was laughing a little.  She said, “Come on we need to go now’ and she got up out of the chair and I helped her up.”
  5. [25]
    In cross-examination she said she had been asked to come along because the complainant felt uncomfortable.  She said afterwards they had discussed briefly what had occurred. She said they left separately.  She said she did ask her what happened in the room.  She agreed that the defendant knew that she was there, that she could hear fairly clearly what was going on in the treatment room and that she didn’t burst into the room.
  6. [26]
    The two women had fallen out of contact over the years that followed. She said that the complainant had contacted her by a mutual contact through a school reunion Facebook page and told her the police would be in contact. She indicated that she remembered the incident but there was no details discussed. When it was suggested that this incident didn’t happen she said she remembered it because it was such a weird circumstance”.[1]
  7. [27]
    Crown called Professor Lindsay Brown, an expert in pharmacology who gave evidence of the use of nitrous oxide. He said the purpose of its use in dental practice was sedation and possibly anaesthesia. He said the effect of the administration of the gas on a person could cause a person to feel high during inhalation. He was asked whether one of the effects could be laughing, he said “it is and that’s what it was first known for and if that occurs in a patient it would indicate that the gas has been given too quickly.” He was asked “but if a patient is exhibiting laughing is that a sign of the concentration of nitrous oxide? -  “that would be a sign that it had been given – it had been increased – the concentration had been increased too rapidly”. He said normally when administering nitrous oxide it starts with 20 to 30 percent nitrous oxide and is increased by five percent until it reaches the patients tolerance level for sedation.
  8. [28]
    He could not say, because of the passage of time, what the instruments looked like in 1980. He gave evidence that when the oxygen level goes below that of  normal air which is 19 percent the person will lose oxygen from their body and that can lead to dizziness, possibly a heart attack, shortness of breath, blueish fingers or toes or lips and changes in blood pressure. Those effects only occur while the person breathes the nitrous oxide. They recover very rapidly.
  9. [29]
    He said it would be very unusual for any higher ratio than 70:30 to be administered and in fact the machines these days are limited to a ratio of 70:30. He said nitrous oxide has the effect of impairing a memory, it has a retrograde amnesic effect but it is hard to find any literature on how long that effect lasts. It may only last while the gas is actually there namely two or three minutes. He further said it is a drug that incapacitates the person because they are anaesthetised but as soon as the mask is taken off that the anaesthesia wears off within a very short period of time namely two to three minutes.

Preliminary complaint

  1. [30]
    There was evidence of preliminary complaint from two witnesses. The complainant’s partner at the time, Andrew Flint, and the police officer who first spoke to her, Olivia Shaw.
  2. [31]
    Mr Flint gave evidence that in October of 2015, he and the complainant were in the lounge room looking at electronic devices he’d seen something on workplace harassment and bullying and he showed it to her. She took 15 to 20 minutes to read it and then went quiet. He asked what was wrong and they went out to the front patio. She said I’ve got something to say, I’ve never told anybody this before but I was raped when I was younger and that article you sent me has bought up some memories of that. It was when I was working for a prior employer I was raped. She said the employer was Dr Peter Agnew and she was approximately 18 or 19 years old. He said he prompted her for a bit more information and she went on to describe a couple of instances. The first was when she was getting some after-hours dental work with this doctor who was her employer and she was getting under some nitrous oxide and she felt at the time when she was going under that something wrong. She said she was semiconscious at the time when she became aware of that. She said she basically sat straight upwards. He said I can’t recall if she asked him to stop but she then indicated that a friend of hers came in to pick her up (Susan) and either interrupted was what happening or she basically interrupted the situation of sexual assault.
  3. [32]
    The second occasion was a time afterwards where she was locking up of an evening as she occasionally did. She then indicated that Doctor Agnew came back after hours and proceeded to commit a rape on her right then and there I believe on the floor. They then discussed how terrible it was and things like that.
  4. [33]
    In relation to the sexual assault she said ‘words to the effect’ of his attempting to assault her and he said in what way and she said he was touching me inappropriately. In relation to the rape she said basically it occurred on the floor, he came in and then she pretty much she just laid there and let it happen. She indicated because she felt it was the only option she had rather than fight it and that from that point forward she left the premises quickly. The conversation took place over about 45 minutes. (The complainant in her evidence said that she didn’t tell Flint any detail other than she was raped and it was a short conversation because he didn’t want to hear any details. The defence point to this as a significant inconsistency)
  5. [34]
    The complainant spoke to Olivia Shaw on 13 December 2015. She said at about 1.50pm that day she came in and said she wanted to report a historically sexual assault complaint. She recorded the matter in her notes which were Exhibit 1 in the trial. She said “ It was about 5pm when the dental surgery closed. I was working for Peter Agnew Dental Surgery as a dental nurse and Peter was the only dentist in the surgery. I knew that Peter had left for the day and I was to lock up the surgery and make sure everything was ready for the next day.
  6. [35]
    I was heading out the lab tech room and towards the back door to leave the surgery. Peter walked in the back door and we met in the waiting room. He forced me down onto the floor. He was on top of me. I was fully clothed in my dental nurse uniform. He pulled down my underwear and forced his penis into my vagina. I was telling him no, no, no over and over. I was trying to kick the door so someone might hear. He penetrated my vagina and forced himself against me for what felt like 5 to 10 minutes. I don’t remember how I got out from under him I just remember standing up, pulling my undies up and running out the back door. I never went back to work after that and have never been in contact since. I would describe Peter then as (and a description was given.)”
  7. [36]
    In cross-examination, there were further entries made in the QPRIME system that the officer hadn’t put in her notes namely that “the victim managed to push the suspect off and decamp via the back door on foot” and “nil condom was worn” and “unknown if suspect ejaculated”. The officer said she must have been given that information by the complainant or she wouldn’t have put it in the report although it seems curious that she would be given two different versions of events in such a short period of time about how the episode ended. That evidence has to be treated with some caution in my view.

The defendant’s evidence

  1. [37]
    The defendant first became aware of these allegations when the complainant came to his surgery on 23 May 2016 to speak to him and she recorded the conversation.  The defendant responded in an unusual manner to the allegations.
  2. [38]
    When asked about showing her the pornographic magazines he commented “God that’s a bit out of order.  Why would I do that?  I have no idea why I would do that.”  In relation to whether he put his hand up her uniform he commented “No I didn’t.  I would never do that.”  In relation to whether he had ever visited her flat he commented “I’ve never been to your flat.”  In relation to any conversation about his wife coming to the door naked.  He said “I have no recollection.  Why would I tell you that?”  In relation to Count 1 he said “I don’t remember any of this.  I have no recollection.”  And in relation to Count 2 he said “Oh sorry, just in shock.  No recollection what you’re talking about.  Just not the sort of thing I do.  I’m first to admit I have done stupid things but I’ve never raped staff.”  The conversation is littered with him saying “sorry” and “I have no recollection of this.”  The Crown seeks to rely on that conversation as admissions made by the defendant by conduct.
  3. [39]
    It is fair to say that the defendant was somewhat selective in his comments to the complainant not denying the pornography, denying the touching of hand under the uniform and not recollecting the rape.  It is also true to say that his reaction to the accusations is somewhat unusual.  However, it is also apparent that he did not initially even know who the complainant was and even after she identified herself, he was having difficulty placing her face. 
  4. [40]
    The allegations as put to him after 35 years would have been a shock.  Even if he had committed the offences it would have been a surprise that they were suddenly emerging after all this time.  It is also apparent that he was not the only person on the premises and his explanation that he was trying to calm her must be seen in light of the fact that he may have been trying to ensure that she did not start screaming or yelling. 
  5. [41]
    It is fair to say that most people would have reacted differently.  At least they might have stopped the conversation or asked for another person to be there to witness it.  However, it does not in my view amount to admissions by conduct.  It is clear that when one looks at all that was said by the defendant that he is not admitting the conduct and his denials should not be seen in that way. Human reaction is not always consistent or predictable and this is one of those occasions.  In all the circumstances it seems to me given the fact that the defendant was confronted unexpectedly after 35 years with these allegations it would be unfair to assume that his reaction was that of a person deliberately acting out of a consciousness of guilt and I do not regard it in that way.
  6. [42]
    When interviewed by police he indicated that in relation to that initial conversation he initially thought that she was trying to blackmail him and that he didn’t want to upset her because she seemed anxious and frail and he didn’t want to call her a liar because he didn’t know how she would react.  (There was nothing in her voice that I could hear that portrayed she was anxious and frail although the recording is only audio so her appearance may have been different). 
  7. [43]
    His next reaction in his conversation with the police was that his ex-wife had put the complainant up to this.  There is no evidence that the complainant knew his wife. 
  8. [44]
    In relation to the pornographic magazines he indicated that he did have magazines at home.  He denied showing pornography to her but said he might have had some in his briefcase.[2]  
  9. [45]
    In relation to visiting the flat he said he vaguely had recollections of that.[3]  It would have been delivering wages or dropping off uniforms but he had no real idea why he would have gone around there. 
  10. [46]
    In relation to the indecent assault he said he had no recollection but he wouldn’t have performed dental work on her after hours.  He had no memory of Susan Tonks and to perform dental work he needed an assistant.  He could not remember at that stage about the nitrous oxide and how it was used as it had been too long since he had used it.  He remembered it being a ball bearing structure with gradients from 1-10 blue for nitrous oxide and another for green.  He said her description of events was ridiculous. 
  11. [47]
    Similarly in relation to the rape allegation he denied the rape and said it was ridiculous.  That he was not a violent person, not physical.  He said[4]:

“I don’t know where she’s coming from with that.  That’s just look I’m not that sort of person.  In fact I’m the opposite, you know, if, if I don’t have a compliant partner, I, I just don’t perform, I mean that’s the bottom story.  I, I’m just not violent, I’m not physical, I just don’t force myself on people.  I’m, I’m actually the opposite, so.  That’s, I completely deny all of that.  That’s ridiculous.”

  1. [48]
    The defendant’s evidence consisted of further denials.  He said he had found an old nitrous oxide gas regulator on eBay that was very similar to the one used at Stafford[5] and that was marked as Exhibit 5. It shows a scale of 1-10 not 16.  He said in his evidence it would be impossible to give a patient 16:1 or 16:3.  He also said it would be impossible to replace a filling when he was the only person working with the patient. This evidence was supported by one of his character witnesses who is also a dentist. (The complainant said that it had happened before in her previous employment.) 
  2. [49]
    Asked if he could remember the complainant he said:[6] “I don’t recollect her as an employee or as this – barely – vaguely recollect her at all, to be honest.”  He could not recall the circumstances in which she stopped working for him.
  3. [50]
    He denied showing her the pornographic magazine and denied doing any dental work on her.  He also denied groping her backside and putting his hand up her dress.  He denied unzipping her top when she was in the treatment room. 
  4. [51]
    When asked about the visit to the flat he said he had a vague recollection of that[7] but he thinks he dropped something off. 
  5. [52]
    He talked about the positional requirements of her job although he didn’t really remember her.  There were general responsibilities which he described.  He denied having a second set of books for tax purposes and denied threatening her with being blacklisted.
  6. [53]
    In cross-examination he agreed that he was a person who valued his reputation highly.  He agreed that he was the boss of his dental nurses.  He had hiring and firing capabilities and there was very little by way of recourse if that happened at that time.  He gave evidence of having to sack a woman called Caroline in 1980 because she had misused the nitrous oxide.  He agreed when he spoke to police initially he thought he didn’t have the nitrous oxide at Ferny Grove, but he has since remembered that he did. (Nothing much turns on that discrepancy). 
  7. [54]
    He said he did not own a leather jacket in 1980 and he wouldn’t wear a turtle neck.  He agreed he had gold from fillings in a jar in his office.  He agreed that nobody would question treatment or be disrespectful to a dentist in front of a patient.  He said generally they all used to have lunch together in the back room which is the general location that the complainant says the pornographic magazine was shown to her and said there were few other places where lunch could be had in that area.  He said that she had keys to the surgery. 
  8. [55]
    In relation to going around to her house, he said that it could have happened on a Saturday night, he could vaguely remember something about it being around 6.30 pm.  He recalls dropping something in there, but he had no intention to spend the night with the complainant. 
  9. [56]
    He denied showing her the pornographic magazine.  He was asked if he did have pornographic magazines back in 1980 and he said:

“Answer: As I said, I was being honest, like 99.99% of men, yes, I had a look at a pornographic magazine. 

Question: And you had pornographic magazines in your work briefcase? – Occasionally, like you know, I don’t make out, like I mean, I might have occasionally.  I’m just being as honest as I possibly can when I say that.” 

Question: And so it was a briefcase that you used to take to the Stafford clinic?

Answer: Yes, I used to have a briefcase. 

Question: And you accept that that briefcase that you took to the Stafford clinic in 1980, there were occasions when you had pornographic magazines in that?

Answer: Rarely, rarely, rarely, rarely you know. 

Question: Ok but yes?

Answer: Yes, I’m not saying it’s not impossible.[8]

  1. [57]
    In cross-examination he further denied agreeing to treat her teeth after hours because he couldn’t do teeth after hours without an assistant.  He said it was totally an affront to suggest that he was unzipping Ms Lucas’ dress or attempting to overdose her to make her compliant with his wishes.  He denied raping her.

Character evidence

  1. [58]
    The defendant called evidence from a number of character witnesses.  There were two friends he’d known since school days.  They were both prominent members of the community and they spoke of his honesty and integrity.  There was an exgirlfriend, also a prominent member of the community, who had become a family friend after they broke up and she spoke highly of his reputation as a man of integrity.  There were also four women who had worked for the defendant for significant periods of time.
  2. [59]
    Jan Thompson who had been the receptionist at Stafford surgery.  It seems likely that she was on maternity leave during the time that Ms Griffin worked for the accused.  She stopped working for him in late 1988 after 12 years employment and although they’d lost contact during the 90’s, they were still in contact at the time of the trial.  She described him as a great all-rounder and an honest person.  Deanne Culverhouse had worked for the defendant for 11 years.  She knew him socially and in the work sphere.  She was currently a dentist and she said she couldn’t perform dental work on someone by herself.  She described him as honest and gentle.  Rachel Keiser was employed by him for seven years until he retired.  She said he was a good dentist, great orthodontist, there was never any discussion about his dishonesty.  Adema West also worked for him and she said that he was well regarded, everyone loved him.
  3. [60]
    Evidence was led about his general reputation with women, however at the end of the defence counsel’s case, the Crown asked to adduce evidence in rebuttal of that evidence. The defence abandoned that evidence after some discussion about whether that would be allowed.  I do not have regard to that evidence
  4. [61]
    The result of all that evidence is that the witnesses have attested that he is a person of unblemished character and I have taken that into account in assessing his evidence generally and in deciding whether a person of his standing in the community would do the acts that are alleged to have occurred 35 years ago.

General discussion

  1. [62]
    The defence have raised the question of an absence of the complainant’s motive to lie.  It does not appear that the complainant has a motive to lie about these matters, but of course it is also obvious that it would be almost impossible for the defendant to prove a motive to lie because of his lack of contact with the complainant over the years, therefore although there doesn’t appear to be any apparent motive to lie, I accept that it doesn’t follow that the complainant is truthful and/or reliable and I do not infer that she becomes more credit worthy simply because of that inability to unearth a possible motive to lie.
  2. [63]
    The prosecution has led evidence of the conduct of the defendant in relation to the complainant which led up to the indecent assault and the rape.  That evidence includes the showing of the pornographic magazine to her, touching her under her uniform momentarily on occasions, the visit to the flat and the comments that he made about his wife appearing naked at the door before the child and being less receptive after the child was born as evidence that shows that there was sexual interest by the defendant towards her.
  3. [64]
    The prosecution relies on this evidence to show that he had a sexual interest in the complainant and was prepared to act upon it and the prosecution submits that this evidence makes it more likely that he committed the offences with which he is charged.  I accept that I can only use this other evidence if I am satisfied beyond reasonable doubt that he did the acts as the evidence suggests and that the conduct demonstrates that he had a sexual interest in the complainant that he was willing to pursue.  Of course it doesn’t follow that if I am satisfied that this conduct did occur,  and it demonstrates a sexual interest of the defendant towards the complainant that it necessarily means that he is guilty of the offences as charged.
  4. [65]
    In relation to that evidence of sexual interest, I find the complainant’s evidence in relation to that sexual interest to be credible.  It demonstrates an escalating behaviour towards the complainant, and the fact that she was compliant and did not rebuff him strongly but merely chose to move away from him, leads to a conclusion that he was emboldened by his advances to take matters further.
  5. [66]
    The defendant admits that he viewed pornographic magazines and videos.  That in itself is not evidence of any moment, nor is it damaging to his reputation generally.  He does however admit that he would, from time to time, have pornographic magazines or catalogues in his briefcase at work and that evidence in my view is evidence which supports the complainant’s contention that she was shown those magazines.  Unlike his comments to the police that 99.9 per cent of men would have those magazines or view those magazines, in my view it would be unusual for a professional man to be carrying around pornographic material in his briefcase at work in circumstances where there is no real need or requirement for that to happen.  The fact that the complainant says that he produced a pornographic magazine from his briefcase, coupled with the fact that he says he may well have had pornographic material in his briefcase, lends some support to her account because it supports the fact that she saw the pornographic material being produced from that same briefcase.
  6. [67]
    In relation to the touching under the uniform, again the complainant gives the description of sterilizing items at the autoclave when the dentist would walk in and touch her briefly on the bottom in circumstances where he was aware that it would be unlikely that she would make any comment because of the presence of the patient in the chair waiting for treatment.  I find this again to be a credible account, particularly when looked at as part of the whole of the evidence.
  7. [68]
    In relation to the visit to the flat, the accused gave an explanation for that.  It is curious that he barely remembers the complainant but can remember going to the flat.  His reason for going to the flat to give her wages on a Saturday night or to drop off uniforms is extremely unconvincing.  His visit to the flat does suggest that he was keen to pursue her and to develop an ongoing relationship with her outside the normal dentist/nurse relationship.
  8. [69]
    The comments made about the wife, Leonie, are also inappropriate in the context of a professional relationship but one might think them a way of introducing a sexual atmosphere into the relationship between the accused and the complainant and in the context of the general evidence becomes compelling in my view.

Count 1 – Indecent assault

  1. [70]
    The prosecution must prove that, on a date unknown between 31March 1980 and 31 December 1980 at Stafford in the state of Queensland, the defendant unlawfully and indecently assaulted LQE.  Assault is defined as touching without consent and the assault has to be unlawful and indecent.
  2. [71]
    There is strong evidence of corroboration in this charge in the form of Miss Tonks’ evidence.  Miss Tonks was an impressive witness.  She was no longer in contact with the complainant at the time she was asked to recall this incident.  She said the details of the incident were not discussed with the complainant before she spoke to police and it was something that stuck in her head because of the unusual nature of the occurrence.  When it was put to her that she was mistaken about what had happened; that it simply did not happen, she said:[9]

“That did happen and I saw that happen and I was there when it happened and I know what I saw because it was such a weird circumstances.”

  1. [72]
    The evidence of Miss Tonks is largely consistent with the complainant’s evidence allowing for differences of memory after 35 years.  She heard the complainant saying “no”.  She thought that the complainant sounded a little bit intoxicated.  She heard laughter which is consistent with gas being administered too quickly and she saw the complainant’s uniform had been unzipped below the bra-line and the defendant had the aspirator around where her uniform was opened in her breast area.  Given that the complainant herself was under gas at the time, it is perfectly logical that there might be differences in her recollection. The fact that the complainant cannot remember laughing is consistent with her being under the influence of the drug that was administered.  The difference between the two witnesses as to whether she burst into the room or walked into the room is minor in my view. Also given that the witness had been asked to be present because the complainant was worried about what might happen, I do not find it particularly unusual that she did not ask what had happened.
  2. [73]
    The Crown has presented a compelling case in relation to Count 1.  I accept that it is brazen and unusual behaviour but experience tells us that these events take place often in quite unusual circumstances and that sexual offences can be quite brazen, particularly if the defendant was hoping that she might be compliant with his attentions. 
  3. [74]
    There was a significant amount of evidence about the ability of a dentist to perform a filling without a dental assistant.  I accept that that would be difficult, perhaps even impossible to do.  However, whatever his stated intentions were for that particular day, his actual intentions were exhibited by his behaviour on that day and that did not involve dental work. 
  4. [75]
    Similarly, there was significant criticism levelled at the complainant’s contention that the ratio of nitrous-oxide to oxygen was a ratio of 16:1 or 16:3.  I accept the complainant is likely to be mistaken about that.  The fact that she was at that stage under gas and likely to be dizzy and disorientated may have affected her memory of that.
  5. [76]
    Having regard to the evidence of Ms Tonks who I found to be credible and reliable and largely consistent with the complainant, there is evidence which convinces me beyond reasonable doubt that the defendant touched the complainant without her consent, that the touching was unlawful and given that he unzipped her uniform and exposed her breasts, I find that it was indecent as judged by community standards.

Count 2 - Rape 

  1. [77]
    The final count is the count of rape.  The rape is uncorroborated.  There is evidence of the sexual interest that the defendant had in the complainant particularly from the showing of the pornographic magazines and the indecent assault in Count 1.  The accused again was likely emboldened from the fact that despite what happened in Count 1 the complainant came back to work and did not say anything to him about what he had done. 
  2. [78]
    I have not relied on the comments made by the accused in the covert recording in determining whether the accused raped the complainant or not.  I did not, however, find the accused’ evidence  convincing. His memory of events which occurred was patchy. This was understandable in the circumstances. His denial of any interaction with the complainant in circumstances where Ms Tonks interrupted him and helped the complainant from the surgery is rejected. I find that his presentation to others in his life as a person of honesty and integrity was not present in his interactions with this complainant at this stage of his life.
  3. [79]
    On the other hand the complainant’s evidence in relation to the detail of this offence and her other interactions with the defendant has been largely consistent. She has given significant detail of the events. Whilst acknowledging that the preliminary complaint evidence does not prove anything independently of the complainant it was also consistent with her evidence at trial. Her lack of recall of her conversation with Mr Flint is of some significance but not to such an extent that it would cause me to reject her evidence. The conversation that he recounted is again consistent with her evidence.  I found her evidence convincing.  I find there is some support for her evidence, not amounting to actual corroboration in the sexual interest showed by the accused before the rape. 
  4. [80]
    The delay in reporting is not unusual unfortunately in these cases.  The complainant said she didn’t say anything as she was embarrassed, no one would have believed her, she was ashamed and it was disgusting.[10] The complainant also claims that she was threatened not to tell what went on in the surgery or she would be blacklisted. Whether an actual list or not existed is not to the point – a threat like that to a young and impressionable woman would have been enough to cause her significant financial stress.
  5. [81]
    Even allowing for the delay, and the caution that must be exercised in cases such as these, it is my view that the Crown has proved beyond reasonable doubt that the defendant had carnal knowledge of the complainant without her consent between the dates alleged  and the accused should be convicted.

Footnotes

[1] T1-50.

[2] P35 transcript of interview

[3] T 17.

[4] P29 transcript of police interview

[5] Exhibit 5

[6] T 2-26, l 30.

[7] T2-28, l 30.

[8] T2-54.

[9] T1-50, l 28.

[10] T1-72 line 40

Close

Editorial Notes

  • Published Case Name:

    R v Agnew

  • Shortened Case Name:

    R v Agnew

  • MNC:

    [2020] QDC 157

  • Court:

    QDC

  • Judge(s):

    Richards DCJ

  • Date:

    10 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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