R v XD[2018] QDCPR 2

DISTRICT COURT OF QUEENSLAND

Table of contents

Introduction

The complainant’s account

The defendant’s application

The defendant’s evidence

Delay

Absence of recollection of patients

Loss of medical records

Loss of witness evidence

Absence of recollection of medical rooms

Power to grant a stay

Strength of the prosecution case

The case with respect to TN

The case with respect to WG

The case with respect to SP

The case with respect to CM

Can the defendant receive a fair trial?

Alternative application – separation of counts

Conclusion

Introduction

1. [1]
   The defendant, XD, is charged with nine counts of indecent assault (counts 1-8 and 10), and one count of indecent treatment of a child under 16 (count 9).

2. [2]
   The pertinent details of the charges are as follows:

3. [3]
   The defendant seeks an order for the permanent stay of counts 1-9 on the indictment on the basis that a fair trial in respect of them could not be achieved. In the event that a permanent stay is not granted with respect to all counts, the defendant seeks an order that, for the remaining counts, there be separate trials such that no one trial proceeds with respect to more than one complainant.

The complainant’s account

4. [4]
   The statement of each of the complainants is in evidence.^[1] The complainants were aged between 13 and 17 at the time of the alleged incidents. Each complainant was a patient of the defendant.

5. [5]
   The defendant is a medical practitioner, registered to practise as a dermatologist. He has practised as a consultant dermatologist in private practice and as a visiting medical officer at public hospitals since 1986.

6. [6]
   At the time of each of the alleged offences, the defendant was working in his capacity as a dermatologist. There is evidence, via Medicare records, that TN, WG, SP and RC attended upon the defendant for one or more consultations.^[2]

7. [7]
   TN, WG, SP and CM, being the four complainants relevant to the stay application, give an account of having been referred to the defendant for treatment of acne. Each complainant alleges that during consultations with the defendant, the defendant requested him to remove his pants and then carried out an examination of his genital area. All complainants allege that the defendant touched their penis. Two complainants allege that the defendant masturbated them.^[3] The accuracy of these allegations has not been tested. I do not assume them to be correct, nor have I assumed they are not. I make no assumption either way.^[4] However, they provide an indication of the Crown’s case (at its highest), which enables me to consider whether the defendant could receive a fair trial in respect of such allegations.

The defendant’s application

8. [8]
   The defendant advanced five key reasons in support of his application for a stay. In short, they relate to:

1. (a)
   delay;

2. (b)
   absence of recollection of details of the patients and consultations;

3. (c)
   loss of medical records;

4. (d)
   loss of witness evidence; and

5. (e)
   absence of recollection of layout of medical rooms.

9. [9]
   The evidence about these matters was uncontested and is set out below.

The defendant’s evidence

Delay

10. [10]
    There is no dispute between the parties about the length of the delay in bringing the charges with respect to each of the counts the subject of the stay application, nor the reasons for the delay.

Delay with respect to charges relating to TN

11. [11]
    The Outline of Submissions for the Defendant helpfully records the nature of the delay as follows:^[5]

“67. TN did not make any complaint to any authority until 2009. At that time, he complained to the then Medical Board of Queensland. The Medical Board thought there to be insufficient basis upon which to proceed.

68. In March 2010, XD was notified that TN had made a complaint against him to the Medical Board of Queensland. It was the first time he was aware that any such complaint had been made by TN.

69. In April 2010, he responded to the Medical Board of Queensland, denying the allegations.

70. In June 2010, the Board determined that no further action would be taken in light of the insufficiency of evidence against XD.

71. …

72. Ultimately, TN complained to the police in May 2014.

73. XD was charged with the current offences in October 2015.

12. [12]
    The trigger for TN’s complaint to the police was that the police contacted TN after commencing their investigation concerning RC.^[6]

13. [13]
    The delay between the occurrence of the alleged incidents and when the defendant was charged with the current offences exceeds 29 years.

Delay with respect to charges relating to WG, SP and CM

14. [14]
    In January 2017, Queensland Police laid charges with respect to WG, SP and CM.

15. [15]
    WG first contacted police two days after having read the Sunday Mail in August 2016. He saw a story in that newspaper about an Asian dermatologist who was treating young boys for skin conditions, including in 1986, in Brisbane. WG gave a statement on 3 January 2017.

16. [16]
    SP similarly read an article in August 2016. He read it online. The article referred to an incident in the Sunnybank area and stated that complaints had been made involving a doctor. The article was vague and suggested that if anyone had any information, they ought contact Crime Stoppers. SP contacted Crime Stoppers a few days later. He emailed the police a brief version of what he alleges happened to him. He provided a statement to police on 5 January 2017.^[7]

17. [17]
    CM’s mother alerted CM to an article published online from the Courier Mail, in relation to the defendant interfering with patients. On 23 August 2016, CM contacted police and emailed them a version of events. He provided a statement on 28 August 2018.

18. [18]
    The charges with respect to WG, SP and CM relate to incidents alleged to have occurred about 30, 29 and 17 years prior, respectively.^[8]

19. [19]
    None of these complainants had otherwise reported the incidents to a person in authority.

Absence of recollection of patients

20. [20]
    The defendant says he has no recollection of WG, SP and CM. He was not challenged on this.

21. [21]
    After seeing TN give evidence at the committal hearing, the defendant has a vague recollection of him (and his mother), but no recollection of details of consultations, the reasons for consultations, treatments prescribed or procedures carried out (if any).

22. [22]
    The defendant’s difficulty recalling patients, and the consultations with them, is perhaps unsurprising given his unchallenged testimony regarding the number of patients and consultations he has conducted since April 1986. He provides an estimate of 5 875 to 6 000 patients per year since 1986, i.e. in the order of 175 000 to 180 000 patients over 30 years.

Loss of medical records

23. [23]
    The Crown does not contest that it has been standard practice within the health industry to advise medical practitioners to retain a patient’s medical records for a period of seven years from the date of the patient’s last consultation with the practitioner, or from the time the patient reaches adult status, whichever is later.^[9]

24. [24]
    The defendant gave the following evidence, by way of affidavit, in relation to medical records, his treatment of TN, WG, SP and CM, and medical conditions and procedures.^[10]

1. (a)
   Consistent with standard practice and the guidance of his medical insurer, the defendant keeps his records for a period ending seven years after the date of the last consultation or seven years from when the patient becomes an adult, whichever is the latter.

2. (b)
   The defendant has no medical records for TN, WG and SP.

3. (c)
   With respect to CM, the defendant has only been able to locate a one page unsigned letter to a general practitioner, which is in the general style of a letter he would send back to a referring general practitioner after consultation.

4. (d)
   The defendant had no reason to retain the medical records of TN, WG, SP and CM beyond the usual protocol period.

5. (e)
   The defendant first became aware that TN had made allegations of impropriety against him in March 2010 when notified by the Medical Board of Queensland. At that time, 24 years had passed since the impugned consultations; he had no recollection of the complainant; and he no longer had any patient records in relation to TN.

6. (f)
   The defendant first became aware of the complaints by WG, SP and CM when he was charged with the offences relating to them.

7. (g)
   The defendant has no records to prove or disprove the accuracy of the Medicare records provided in the Queensland Police brief of evidence. (For TN, WG and SP, the Medicare records contain only limited details, such as the date of consultation; an item number that corresponds to a brief description of the nature of the consultation such as initial specialist attendance; the charge; the payment method and the provider name and location. There are no Medicare records for CM).

8. (h)
   It has been the defendant’s practice, since he commenced as a doctor in private practice, for his medical records to record, at least:

1. (i)
   the reason for a consultation;

2. (ii)
   the symptoms of a patient and, where the patient was a minor accompanied by a parent or guardian, the symptoms relayed by the parent or guardian;

3. (iii)
   any examination undertaken;

4. (iv)
   any procedure undertaken, such as a biopsy; and

5. (v)
   any proposed course of treatment.

1. (i)
   It was the defendant’s practice to have a parent or guardian present when he consulted with persons up to the age of 17 or 18, unless they were a university student.

10. (j)
    Any proposed course of treatment would be discussed with the parent or guardian. The defendant believes he had such a discussion with TN’s mother, who is now deceased.

1. (k)
   In the mid 1980s, Roaccutane was a relatively new drug to Australia. It can only be prescribed by a dermatologist. It can have serious or severe side-effects, including depression, mood changes, impaired liver function, sore muscles and joints, headaches, dizziness, an irritation or rash on the skin similar to eczema, cracked lips, and a bloody nose. One of the currently specifically cautioned side effects noted by the defendant, and recorded on a copy of the Consumer Medicine Information sheet for Roaccutane exhibited to the defendant’s affidavit, is painful red areas that change to large blisters and peeling layers of skin. This side-effect may occur on lips, mouth, eyes, nose or genitals. A rare side-effect is drying out of the skin, leading to a cracked or bleeding penis. It is also not uncommon for minors to complain of chafing between the thighs, either as a side-effect or as a result of underwear rubbing while playing sports or from shaving pubic hairs. Such side effects would require examination and recommendation as to further treatment options.

10. (l)
    Patient records would assist the defendant in understanding whether or not there was a medical basis for examining the complainants’ torso, upper thigh and/or groin areas. Examples of possible medical bases include:

1. (i)
   the complainant or complainant’s parent advising that they had observed something about the skin in the area, such as a lump, mole, tenderness or irritation, including of the testes; and

2. (ii)
   examining whether there were any noticeable signs of side-effects from Roaccutane.

1. (m)
   It was the defendant’s standard practice to require a patient to take a blood test prior to commencing treatment with Roaccutane, to ensure there were no issues with the patient’s liver function.

10. (n)
    Medical records would contain items such as referral letters from other healthcare practitioners; letters back to other healthcare practitioners; and pathology results, for example blood test results and biopsy results.

25. [25]
    This evidence of the defendant was not challenged. He was not cross-examined, nor did the Crown call evidence from a doctor to disprove the evidence of the defendant with respect to possible medical bases for examining the complainants’ torso, upper thigh and/or groin areas.

26. [26]
    Count 10 of the indictment also relates to a dated allegation of assault. However, the complainant, RC, remained a patient of the defendant until July 2013, at which time he made allegations about the defendant that resulted in a complaint to the Australian Health Practitioner Regulation Agency. Given the more recent nature of the cessation of the doctor-patient relationship between the defendant and RC, the defendant still has his medical records for that complainant. No stay is sought with respect to count 10.

Loss of witness evidence

27. [27]
    TN, in his statement to police, says that each time he attended the defendant’s practice, he had been taken by his mother as he was still a school student at the time.^[11] He says that his mother stayed outside in the waiting room during each of his consultations with the defendant. TN’s mother is now deceased.

28. [28]
    The defendant has lost the opportunity of cross-examining TN’s mother as to her ability or opportunity to speak with TN about what happened in the consult, and about whether she was, in fact, in the consultancy room itself.

29. [29]
    The defendant recalls that there was a receptionist who, along with other specialists, was able to come in and out of his consulting room at Garden City during patient consultations if they needed to ask him something.

30. [30]
    The Crown does not contest that the defendant has made efforts, including by retaining a private investigator, to ascertain details of the receptionist, but to no avail.^[12]

31. [31]
    The defendant has also lost the opportunity of calling administrative staff, whose evidence might assist in corroborating any testimony by the defendant about the improbability of the offending occurring.

Absence of recollection of medical rooms

32. [32]
    In 1986 the defendant practised predominantly out of rooms at the Garden City Medical Centre, but also at locations at Wickham Terrace, Everton Park, Sunnybank Hills (Pinelands Plaza), Woodridge (Woodridge Central), Coorparoo and Newmarket. Around May or June 1987, the defendant moved his practice to the McCullough Specialist Centre at 259 McCullough Street, Sunnybank.^[13]

33. [33]
    The defendant cannot recall the layout of his consulting room at Garden City and the consulting room no longer exists.

34. [34]
    The Crown does not contest that the defendant has made efforts to ascertain information about the layout of the Garden City Rooms, but to no avail.^[14]

Power to grant a stay

35. [35]
    The court has a discretionary power to grant a permanent stay of criminal proceedings. The power is to be exercised in a principled way and used only in exceptional circumstances.^[15] The touchstone in every case is fairness. As was stated by Mason CJ in Jago v The District Court of New South Wales & Ors:^[16]

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial … At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare …

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” … Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”…”

36. [36]
    Deane J also noted that it is not practicable to precisely identify in advance the various factors that may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation that justifies a permanent stay. He nevertheless identified a number of reference points, including “proven or likely prejudice to the accused” and “the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”.^[17] With respect to these reference points, Deane J observed that account needs to be taken of the availability of other discretionary powers to mitigate the effects of delay and the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts.^[18]

37. [37]
    The majority in Walton v Gardiner^[19] referred to Mason CJ’s reasons in Jago v The District Court of New South Wales & Ors^[20] with approval. They stated:

“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of facts and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”

(footnotes omitted)

38. [38]
    Before a stay can be granted, the court must be satisfied that “there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial”.^[21] As was observed by Brennan J in Jago v The District Court of New South Wales & Ors:^[22]

“Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes, adverse revelations in a public inquiry, absence of competent representation, or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

(citations omitted)

39. [39]
    In similar vein, Gaudron J stated:^[23]

“Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. The exercise of the power to reject evidence, either alone or in combination with a trial judge’s other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.”

(citations omitted, emphasis added)

40. [40]
    In determining whether a stay ought be granted, it is also relevant to consider the strength of the prosecution case. In R v Noyes,^[24] Holmes J (with whom McMurdo P and Muir J agreed) observed:^[25]

“in considering whether the continuation of a prosecution is an abuse of process it must be relevant to consider, at least, whether the prosecution has a real prospect of success. That is not to say that fine balancing exercises must be entertained, but plainly in considering whether proceedings would be oppressive it is relevant to consider whether they are viable.”

Strength of the prosecution case

41. [41]
    Before turning to the question of whether there is irreparable prejudice to the defendant, it is convenient to first consider the strength of the prosecution case with respect to each relevant complainant.^[26]

The case with respect to TN

42. [42]
    TN says he was referred to the defendant for acne treatment as a teenager.^[27] He says he thinks he was 16 years old when he first saw the defendant.^[28] He says that he attended the appointments after school and he was still in his school uniform.^[29] He says his mother took him to the appointments, but stayed outside in the waiting room during all of the consultations.^[30]

43. [43]
    TN says he saw the defendant in “an office in the McCullough Special Centre. This is part of the Sunnybank Private Hospital in McCullough Street Sunnybank”.^[31]

44. [44]
    TN recounts that, in his first consultation, the defendant looked at his skin and, he thinks, prescribed some tablets that his general practitioner could not prescribe. No allegation of impropriety is made with respect to TN’s first consultation with the defendant.^[32]

45. [45]
    TN says that the offending occurred on his second and third consultations with the defendant.

46. [46]
    The dates of the offences come from Medicare records in the police brief, which record the dates of consultations with the defendant.

47. [47]
    TN alleges that the offending conduct with respect to count 1 occurred during his second consultation with the defendant. He says the second consultation was one that involved a more in-depth examination, which commenced with the defendant checking his face and asking him about whether he had experienced any side-effects, nausea or aches and pains from the medication. TN says that he told the defendant that there were no side-effects and everything was normal.^[33] TN says that the defendant asked him to lie on the examination table, explaining that there may be unnoticeable side-effects like swollen glands and/or rashes on other parts of TN’s body.^[34]

48. [48]
    TN says that the defendant then asked him to pull his pants down so he could check his genital area for any swelling or discharge. He says the defendant would then “poke down on my body starting at my arms and moving down my body. When he got down to my genital area, he would grab and squeeze my testicles. He would then hold my penis. I recall him saying he had to check for any discharge.”  TN says that his penis got hard and the defendant kept masturbating him. He says that the defendant was standing next to him while TN lay on the bed and that he felt the defendant’s penis become erect while it was pressing against his arm.^[35]

49. [49]
    TN alleges that count 2 occurred during his third consultation with the defendant. He describes the third consultation in similar terms, with the defendant feeling the glands all over his body before masturbating him until he ejaculated while asking questions about whether there was any pain or unusual feeling.^[36]

50. [50]
    TN says “I recall definitely this happening at least three times. There was possibly more but for whatever reason I can recall three incidents.”^[37]

51. [51]
    TN was cross-examined at a committal hearing.

52. [52]
    At the committal hearing, TN says that he stopped attending appointments with the defendant after approximately four consultations because of the sexual abuse that was occurring during the consultations. This is inconsistent with the Medicare records which show he continued to consult the defendant for a further nine consultations beyond May 1986 and up to 14 July 1987.

53. [53]
    At the committal hearing, TN also said that the second and third consultations occurred at the McCullough Specialist Centre, Sunnybank Private Hospital. He confirmed that he had no doubt about that at all.^[38]

54. [54]
    The defendant was not practising at that centre in 1986: the rooms had not been built at that time. A Notice of Alibi was provided to the Director of Prosecutions stating that he intends to adduce evidence in support of an alibi as, on the relevant dates, consultations with patients occurred at the defendant’s rooms at Garden City Shopping Centre. Collectively, the affidavit evidence of the defendant and Mr Denny, a solicitor of K&L Gates, establish that the McCullough Specialist Centre did not exist at the dates of the charges with respect to TN.

55. [55]
    The defendant does not submit that the prosecution is doomed to fail if the case were to proceed.^[39] He submits that TN’s evidence about when and where the offences occurred are matters that demonstrate weaknesses in the prosecution case.

56. [56]
    When viewed in isolation, these weaknesses may appear compelling. However, the significance of the mistaken recollection of the location of the defendant’s practice is diminished when one notes that the Medicare records confirm that TN had a total of 12 appointments with the defendant between 20 March 1986 and July 1987, the latter of which would have been at the McCullough Specialist Centre.

57. [57]
    The Crown case also includes evidence from TN’s sister who recalls that when she was about 16 years old, TN was taking medication for acne and told her that the skin doctor had touched him. The evidence of TN’s sister is consistent with the complaint made by TN. It is also arguably consistent with legitimate medical practice.

58. [58]
    I do not regard the weaknesses to be a compelling factor in favour of the grant of a stay. A jury may form the view that TN is mistaken about such peripheral matters, but is nevertheless credible in his account of the core allegations, such as the allegation of masturbation.

59. [59]
    This illustrates the probable prejudice to the defendant receiving a fair trial with respect to counts 1 and 2 referred to in paragraphs [99] to [119] referred to below. For reasons explained in more detail below, as was submitted by Counsel for the defendant, on the material available the defendant can only “tinker at the edges of matters related to credibility.”^[40] Without his medical records, he cannot, for example test TN on whether the act that TN describes as masturbation to ejaculation in fact involved touching and moving the penis in a particular manner for the purposes of a particular examination and whether the ejaculation was not an outcome intended from the touching, rather an unintended consequence of the examination.

The case with respect to WG

60. [60]
    WG says that, when he was 17 years old and living on campus at the University of Queensland, he was suffering bad acne. His general practitioner at the time referred him to a skin specialist.^[41]

61. [61]
    WG does not recall the location of the consultancy room of the specialist, other than that it was somewhere in Spring Hill or Wickham Terrace. He also does not recall the name of the specialist, but recalls he was of Asian appearance and looked to be in his 30s at the time.^[42]

62. [62]
    WG recalls only ever attending the specialist once.^[43] Medicare records indicate WG attended upon the defendant on 24 October 1986 for an “initial specialist attendance”.^[44]

63. [63]
    WG says that the consultation started with the doctor asking him for some history about his skin treatment and an examination of his face, back and chest.^[45]

64. [64]
    WG says that the doctor then asked him to take his shirt off, at which stage the doctor looked at his back and listened to his chest with a stethoscope. WG says he was then asked to take his pants down.^[46]

65. [65]
    WG says the doctor put latex gloves on and then began examining him. He says “he was leaning down in front of me and began rigorously examining my genital region. He was using his other hand to pull my scrotum in different direction. He was pulling both my penis and scrotum in different directions to look at them.”^[47] WG assumed there was a sound reason for the examination.^[48]

66. [66]
    WG says he was put on a medication called Roaccutane and warned of side-effects.^[49]

67. [67]
    WG was prompted to make a complaint to the police about this conduct after having read a newspaper article about the defendant.^[50]

68. [68]
    There is no apparent motive for WG to lie, and no suggestion of knowledge or collusion with the other complainants who made a complaint after reading a media report.

69. [69]
    WG says he had told his now wife about the touching around 1992. His wife’s statement accords with this account.^[51]

70. [70]
    The defendant submits that the prosecution evidence, taken at its highest, does not exclude the conduct, as described by WG, as being outside the realm of legitimate medical examination.^[52] He submits that, given there are various reasons why a dermatologist may examine the genital area, the description of the conduct cannot be reliably viewed as the commission of an offence. He says this goes to the lack of viability of the prosecution case.^[53]

71. [71]
    There is force to the defendant’s submissions. However, I do not regard the weakness in the prosecution case as a factor that, alone, is sufficient to justify a stay of the charge relating to WG. However, it is a notable factor that weighs in favour of granting a stay, particularly as a counter to the public interest issue that the Crown submits ought be given significant weight.^[54]

The case with respect to SP

72. [72]
    SP says that as a teenager he suffered from acne.^[55] He says that as a result of that skin condition, his local general practitioner referred him to a specialist – the defendant.^[56] He thinks that he first attended a consultation with the defendant in 1986. He recalls being taken there by his mother, although he thinks she stayed in the waiting room.^[57]

73. [73]
    SP recounts that in his first consultation, the defendant looked at his face and prescribed a drug called Roaccutane. SP recounts that the defendant told him Roaccutane could have some strong side-effects, including a sore back.^[58] No allegation of impropriety is made with respect to his first consultation with the defendant.

74. [74]
    SP says that the offending occurred on his second to sixth consultations with the defendant. Medicare records indicate SP attended upon the defendant on eight occasions, including the five consultations the subject of the charges.^[59]

75. [75]
    SP alleges that the offending conduct started during his second consultation with the defendant. He says the second consultation began with the defendant looking at his face and talking to him.^[60]

76. [76]
    SP says that towards the end of the consultation, the defendant asked him to pull down his pants and lie on a medical bed. SP assumed the examination of his genitals was part of a process associated with examining for side-effects of taking Roaccutane.^[61] He describes the examination as involving the defendant “lifting my penis up and turn it side to, like he was looking at it for some reason. … He never touched my testicles.”^[62]

77. [77]
    SP says the subsequent consultations all happened the same way as the second, with the defendant touching his penis and lifting it in a side to side motion.^[63]

78. [78]
    SP was prompted to make a complaint to the police about this conduct after having read an article online.^[64]

79. [79]
    There is no apparent motive for SP to lie, and no suggestion of knowledge or collusion with the other complainants who made a complaint after reading a media report.

80. [80]
    The defendant submits that the prosecution evidence, taken at its highest, does not exclude the conduct, as described by SP, as being outside the realm of legitimate medical examination.^[65] As with WG, the defendant submits that this case is not viable.^[66]

81. [81]
    The Crown accepts that its case with respect to SP is the weakest of each of the complainants’ cases.^[67]

82. [82]
    As with WG, there is force to the defendant’s submissions. The weakness in the prosecution case is a notable factor that weighs in favour of granting a stay, particularly as a counter to the public interest issue that the Crown submits ought be given significant weight.^[68]

The case with respect to CM

83. [83]
    CM says that around the time he was 13 or 14 years old, he recalls that his general practitioner gave him a referral to see a dermatologist to receive further treatment with respect to his acne.^[69] He recalls that the dermatologist’s practice was part of Sunnybank Private Hospital on McCullough Street.^[70] He recalls going to the consultation with his mother, who sat with him in the defendant’s consultancy room.^[71]

84. [84]
    CM says that, after a short while, he was asked by the defendant to lie on his back on an examination table, at which time the defendant pulled a curtain so that he could no longer see his mother.^[72]

85. [85]
    CM says that the consultation started with the defendant touching and looking at his face. The defendant was wearing medical gloves. He recalls being asked to loosen his pants: he just undid the top button. He says the defendant then undid the fly and pulled down his underwear just slightly to fully expose his genitals. CM says “I distinctly recall him holding the penis in one hand and moving the shaft upwards so that the underneath of the shaft was visible. While he did this there was a cupping and squeezing type of action of my testicles.”^[73] CM says he did not have any issues with acne in or around the genital area.^[74]

86. [86]
    After this, CM recalls a brief conversation with the defendant and his mother about a prescription for Roaccutane.

87. [87]
    CM assumed the examination of his genitals was a necessary part of the examination.^[75] He says when he told his mother on the drive home, she assured him it must have been necessary to see whether the medication was appropriate.^[76] CM’s mother gives a similar account of the conversation.^[77]

88. [88]
    There are currently no Medicare records confirming CM’s consultation with the defendant. However, there is evidence from a general practitioner who referred CM to the defendant for treatment.

89. [89]
    CM was prompted to make a complaint to the police about the defendant’s conduct after becoming aware of an article published online in relation to other charges levelled against the defendant.^[78]

90. [90]
    Again, there is no apparent motive for CM to lie, and no suggestion of knowledge or collusion with the other complainants who made a complaint after reading a media report.

91. [91]
    As with WG and SP, the defendant submits that the prosecution evidence, taken at its highest, does not exclude the conduct, as described by WG, as being outside the realm of legitimate medical examination.^[79] As with SP, the defendant submits that this case is not viable.^[80]

92. [92]
    Again, there is force to the defendant’s submissions. The weakness in the prosecution case is a notable factor that weighs in favour of granting a stay, particularly as a counter to the public interest issue that the Crown submits should be given significant weight.^[81]

Can the defendant receive a fair trial?

93. [93]
    As noted above, the Crown did not contest any of the evidence before the court with respect to the delay; absence of recollection of details of the patients and consultations; loss of medical records; loss of witness evidence; or the defendant’s absence of recollection of the layout of his medical rooms. It submits that those matters are not sufficient to result in prejudice to the defendant to the degree required to exercise the discretion to order a stay.

94. [94]
    The Crown submits that each count on the indictment raises a significant public interest issue, namely that serious offences are brought before the court and resolved by the courts at trial. Each raises an allegation of an egregious breach of trust by a medical practitioner against a patient who was vulnerable on account of his age.^[82] This is undoubtedly so. 

95. [95]
    The Crown submits that this public interest would weigh heavily in the exercise of discretion. However, as was observed by the Full Federal Court in R v Davis:^[83]

“It is important that guilty people are convicted. It is even more important that innocent people are not. There can be no guarantee about achievement of either objective. The courts can only strive to attain them. The best contribution that judges can make is to insist that trials are fair.”

96. [96]
    The Crown submits that I ought not be concerned with whether or not a perfect trial will result. I agree. I acknowledge the observations by the High Court in R v Edwards that:^[84]

“… Trials involve the reconstruction of events and it happens on occasion that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”

97. [97]
    The question for me, however, is whether there is an irremediable prejudice to the defendant’s ability to obtain a fair trial.

98. [98]
    This is not a case, such as R v Edwards^[85], where the loss of an independent record of the event that gives rise to the charge does not result in injustice to the accused. In R v Edwards^[86] the accused had a recollection of the relevant events and could make positive assertions about the matters in question. That is not the case here.

99. [99]
    In this case, the loss of the potential to lead evidence of the contents of the medical records, together with the defendant’s absence of recollection of the complainants and his consultations with them, results in a probable forensic disadvantage that is incurable. 

100. [100]
     The defendant is denied the opportunity to present evidence that may call into question the credibility or reliability of the complainants with respect to:

1. (a)
   the reason for the consultation;

2. (b)
   the symptoms of a patient and, where the patient was a minor accompanied by a parent or guardian, the symptoms relayed by the parent or guardian;

3. (c)
   any examination undertaken;

4. (d)
   any procedure undertaken; and

5. (e)
   any resulting proposed course of treatment.

101. [101]
     In this case, the loss of independent records seriously hampers the defendant’s opportunity to show that there was a medical purpose to the touching of the complainants’ genitals and, as such, either raise an issue about whether the touching was indecent; or produce evidence sufficient to raise a defence for the jury’s consideration, such as the defence of medical treatment under s 282 of the Criminal Code. The Crown will not assume a probative burden with respect to such matters unless the defendant can first satisfy an evidential burden. The absence of the defendant’s medical records, together with his lack of recollection of the complainants, denies the defendant of the opportunity to satisfy the evidential burden.

102. [102]
     It seems to me that this defect cannot be cured by directions or by other discretionary powers available to the court. The Crown submits otherwise.

103. [103]
     With respect to the delay and the consequent absence of recollection of details of the patients and consultations and loss of medical records, the Crown submits that, if it is capable of establishing each of the factual allegations, the defendant is not prejudiced by his absence of notes. It submits that the notes would not likely record matters such as masturbation.^[87] This ignores the loss of opportunity to question on matters such as those outlined at paragraph [100] above.

104. [104]
     In submitting an absence of prejudice, the Crown highlighted that the reliability of the complainants’ recollection can be tested in other ways. It gave the example of TN’s recollection about the location of the practice, which the Crown submits can be tested against independent sources of evidence such as the Medicare records.^[88] That is correct. However, the ability to test the allegations is very limited, and only about peripheral issues. It does not redress the prejudice to the defendant in his inability to test the matters that go to the core of the allegations.

105. [105]
     The Crown also submits that, during a trial, the defendant could lead evidence that there are a number of conditions treated by dermatologists that could require treatment in the manner described by the complainants. It submits that the defendant, as a qualified and practising dermatologist, could instruct his legal team in relation to the nature and type of his practice over time, the types of conditions he treated, how he went about treating those conditions and the type of examinations required or indicated medically. It submits that the defendant could also inform his legal team in relation to the conditions deposed to by each complainant and the associated methods of treatment or examinations that might be required with respect to such conditions.^[89] Such generalised questioning is unlikely to be sufficient to put a defence in issue.

106. [106]
     Without his medical records, it is impossible for the defendant to check whether he made a genital examination of the complainants and, if so, why he did so and how he carried it out. He cannot give instructions to his lawyers regarding aspects of the general treatment that might reveal the alleged incidents in a different light.

107. [107]
     The Crown also noted that the defendant could cross-examine TN about whether or not an examination was done in the context of potential side-effects of medication, as TN’s evidence was that he was on medication for acne. This ignores the true difficulty that the defendant faces – he cannot meaningfully test TN about such matters: he has no means of challenging the accuracy of TN’s recollection.

108. [108]
     With respect to the case relating to SP, the Crown submitted that the defendant would not be prejudiced by an absence of medical records. It notes that SP says he was prescribed medication, which might be inferred to be Roaccutane, and that he then returns for another consultation about six weeks later, at which time he alleges he was indecently assaulted. On the basis of those matters, the Crown submits the defendant could put to SP that there was a medically legitimate or clinically legitimate purpose in conducting an examination of SP’s genitalia. The difficulty with that proposition is that the defendant cannot put this, as it calls for SP to express a medical opinion. Further, he could not counter the answer given by SP. The defendant cannot say whether an examination even took place.

109. [109]
     With respect to WG, the Crown notes that the evidence of WG is that he was indecently assaulted on the first occasion he met with the defendant and that he had not been prescribed any medication at the time. WG was complaining of acne, not any difficulties with his groin. On that basis, the Crown submits that the touching of WG’s genitals cannot be explained by way of clinical need: the consultation is an initial consultation about a complaint unrelated to the part of the body the subject of the charge.^[90] The Crown makes the same point with respect to CM.^[91]

110. [110]
     These submissions assumes the allegations made by WG are correct. When considering whether the defendant would receive a fair trial, I do not consider it appropriate to make such an assumption. The relevant question, to my mind, is whether, there are means available to ensure the defendant would receive a fair trial. The defendant has no means of testing WG’s evidence, including his evidence about the reason for his consultation and the extent of the medical issues with which he presented. Without his records, the defendant cannot test whether there was any matter mentioned that might give rise to the need to examine the genital area.

111. [111]
     The ultimate submission on behalf of the Crown is that any disadvantage to the defendant brought about by the delay in proceedings can be adequately dealt with by a Longman direction.^[92]

112. [112]
     The Longman direction warns about the dangers of convicting on the complainant’s testimony alone. The essential concern in framing a Longman direction is the forensic disadvantage in adequately testing allegations or marshalling evidence to meet them because of delay.^[93] It warns about the disadvantage encountered by reason of delay in testing an honest but erroneous recollection. It can be used to comment on the fallibility of recollection. None of this would assist the defendant in this case. It does not address the special prejudice suffered by him, to which I have already referred. The complainants’ recollection of being touched may well be correct. The medical records may, however, have thrown a different light on the nature of the touching i.e. whether it is explicable by a legitimate medical procedure. This is a matter about which the complainants could not attest.

113. [113]
     The Crown submitted that directions, such as the Longman direction, or a specifically adapted direction could be crafted to take account of the evidence. When pressed for an example, the Crown submitted that a direction might inform the jury that records have been lost and about what the usual practice in the medical profession would be. However, as noted by the Crown, a direction could not address what the records might have shown: that would involve speculation given the records do not exist.^[94]

114. [114]
     The nature of the prejudice suffered by the defendant is similar to that considered by the Full Federal Court in R v Davis.^[95]  In that case, the court granted a permanent stay with respect to 14 charges involving allegations of sexual indecency against 13 different female complainants. The offences were alleged to have taken place during medical examinations conducted by Dr Davis. Many of the complainants, on their own account, presented with gynaecological problems. All alleged that Dr Davis conducted an internal vaginal examination in an inappropriate manner. Like the defendant, Dr Davis had difficulty recalling the complainants and his medical records for the patients had been destroyed.

115. [115]
     Relevantly, in R v Davis the Full Federal Court observed:^[96]

“Despite our view about the matter of consent, we agree with Gallop J that this is “an extreme case which does not depend on ... delay alone.” Delay alone would not justify a stay: see Jago v District Court (NSW) (1989) 168 CLR 23. Of course, there will rarely be delay without at least some consequential prejudice. It is not necessary for us to determine whether the delay in this case is so extreme as, by itself, to have created such a degree of prejudice as to justify a stay of proceedings. Here there is special prejudice, occasioned by the destruction of the medical records. It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson's comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breast, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant's genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.

There is a further problem arising out of the loss of the records. We have already mentioned the failure of all but one of the complainants to report her experience to anyone in an official position until after the Canberra Times article. We can understand this. However frustrating it may be to law enforcement officers and courts, a low reporting rate is a characteristic of sexual offences. But it also seems to be a characteristic of sexual offences, equally understandable, that victims thereafter try to avoid the offender or, at least, placing themselves in a situation where the offence may be repeated. So the subsequent behaviour of an alleged victim may provide insight into what happened on the occasion in issue. In this context, it is most unfortunate that the medical records are lost. It is clear from their own statements that some of the complainants consulted Dr Davis again after the alleged incident. The fact that they did so does not necessarily undermine their versions of the incident. The power inequality has to be taken into account. However, information about subsequent visits (when, how often and for what reason) might throw some light on what happened on the critical day. Without his records, Dr Davis is unable to say anything about these matters or even to give instructions to his counsel regarding subsequent visits which, for all anyone can now say, might have been significant to his defence.”

(emphasis added)

116. [116]
     The Full Federal Court ultimately concluded:^[97]

“We are satisfied that this unusual case meets even the demanding tests we have quoted. Having regard to the nature of the allegations and the surrounding circumstances, there is nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay that has occurred, with the regrettable consequence of the loss of the medical records. To apply a telling phrase used by Toohey J in Ridgeway v The Queen (1995) 129 ALR 41 at 71, taken from a Canadian case, to force Dr Davis to stand trial on these charges under these circumstances “would offend the court's sense of justice”.

Some people, rightly anxious that sexual offenders be brought to account, may be disappointed by our decision. They may think that it allows a guilty man to escape justice. But that conclusion necessarily involves the assumption that Dr Davis is in fact guilty of the offences with which he has been charged. The correctness of that assumption could only be determined by a fair trial. It is not enough to say, as some might be tempted to do, that the allegations would not have been made unless Dr Davis was guilty. That argument assumes there can only be one side to the story. Everyday experience in the courts shows this is rarely so. Nor is the situation really changed by the number of the complainants - especially when it is remembered that all except one of them emerged as a result of a newspaper article. We do not for a moment suggest deliberate concoction, but there is always a possibility that the newspaper article induced a degree of unconscious reconstruction. Time, too, may have obliterated memories of inconsistent facts and qualifications, leaving a deceptively clear impression. That is why it is essential to have the facts surrounding each case.”

(emphasis added)

117. [117]
     The Crown submits that this case can be distinguished from R v Davis as “the touching of the genitals of any of these complainants could in no way be justified as a legitimate dermatological procedure”.^[98]

118. [118]
     That the defendant faces a probable forensic disadvantage is reinforced by the Crown’s unwavering adherence to that submission despite:

1. (a)
   the evidence presented by the defendant indicating to the contrary, including:

1. (i)
   medical records of TN’s general practitioner indicating that in February 1987, TN had “painful enlarged testes, varicocele” and that a varicocele is a developmental defect where the veins around the testicles are abnormal and dilated. The mention of such matters during the relevant consultations may have resulted in an examination of the genital area;^[99]

2. (ii)
   the evidence referred to in paragraph [24](k) above about the side effects that can be caused by Roaccutane;

3. (iii)
   the medical records of RC, which reveal a number of reasons why a dermatologist may be undertaking examinations or medical procedures in the region of the groin, including the existence of genital worts;^[100]

2. (b)
   the Crown presenting no evidence of a medical practitioner in support of the submission; and

3. (c)
   there being no suggestion from the Crown that it will call evidence of a medical practitioner to disprove that any of the touching had a medical reason.

119. [119]
     The forensic disadvantage is further exacerbated by:

1. (a)
   the loss of potential witnesses. TN’s mother is not able to give evidence. The defendant also cannot locate the then-receptionist, who may have been able to give evidence in support of the defendant’s case in terms of the improbability of the allegations when staff could enter his room at any time without warning; and

2. (b)
   with respect to TN, the defendant’s inability to recall pertinent details about the layout of his medical rooms.

120. [120]
     I am satisfied that the features of this case are so exceptional as to warrant a permanent stay. The matters referred to above result in prejudice to the defendant that cannot be cured by the court’s discretionary powers. I am satisfied that a fair trial is not possible with respect to counts 1-9 on the indictment.

Alternative application – separation of counts

121. [121]
     In light of my findings above, it is unnecessary for me to deal with the alternative application that each of the counts relating to the individual complainants be tried separately.^[101]

Conclusion

122. [122]
     For the reasons outlined above, a permanent stay is granted with respect to counts 1 to 9 on the indictment.