R v Johnson [2004] NSWCCA 121

New South Wales Court of Criminal Appeal

CITATION : R v Johnson [2004] NSWCCA 121 HEARING DATE(S) : 20/11/03; 23/04/04 JUDGMENT DATE : 13 May 2004

JUDGMENT OF : Tobias JA at 1; Wood CJ at CL at 1; Hidden J at 1 DECISION : Appeal allowed, new trial ordered.

CATCHWORDS : CRIMINAL LAW: Appeal fresh evidence aggravated sexual assault - allegation of penile penetration of a young man without his consent - new evidence suggesting appellant was impotent LEGISLATION CITED : Crimes Act 1900 CASES CITED : Gallagher v The Queen (1985-1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 PARTIES : Keith William Johnson (appellant) Regina (respondent) FILE NUMBER(S) : CCA 60321/02 COUNSEL : P Hamill (appellant) D Arnott (Crown) SOLICITORS : Legal Aid Commission of NSW (appellant) Solicitor for Public Prosecutions (respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0101 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60321/02

TOBIAS JA WOOD CJ at CL HIDDEN J

Thursday, 13 May, 2004 REGINA v Keith William JOHNSON Judgment 1 THE COURT: After a trial in the Bathurst District Court before Nield DCJ, sitting without a jury, the appellant was found guilty of aggravated sexual intercourse without consent, pursuant to s 61J(1) of the Crimes Act. He was convicted and sentenced to a term of imprisonment. He appeals against conviction and sentence. 2 The appellant was legally represented at his trial. The appeal was listed before the Court, as presently constituted, on 20 November 2003, when he was unrepresented. We embarked upon the hearing but adjourned it so that certain inquiries could be made. Following a grant of legal aid, the hearing was resumed on 23 April 2004, when the appellant was represented by solicitor and counsel different from those who had acted for him at his trial. 3 A number of grounds of appeal which the appellant had argued when he was unrepresented were not pursued. At the resumed hearing three grounds were relied upon. Two of them, expressed in the alternative, were based upon new evidence. A third ground, arising from part of his Honour's reasons for his verdict, need not be determined. We were satisfied that the new evidence required the conviction and sentence to be set aside and a new trial ordered. We made those orders on 23 April 2004, undertaking to give our reasons later. These are those reasons. 4 The charge of which the appellant was found guilty alleged the anal rape of a 16-year-old youth. It is unnecessary to examine the evidence in any detail. At the relevant time, early March 2001, the complainant lived in a flat at Orange. The appellant and a mutual friend, Robert Dunford, were staying at the flat. The complainant's evidence was that on the night in question the appellant came into his bedroom, threatened him with a knife, and had penile-anal intercourse with him. The complainant said that the appellant also inserted his finger into his anus, but the charge was founded upon the allegation of penile penetration. There was also a charge in the indictment based upon an allegation of fellatio but, as the complainant gave no evidence to that effect, the appellant was acquitted of that count. (In relation to both allegations there were alternative counts, to which it is not necessary to refer.) 5 The appellant was sixty-one years old at the time. Upon legal advice, he did not give evidence at the trial. Nor were any witnesses called in his case. However, in an electronically recorded interview with police conducted upon his arrest about a month after the incident, he denied the allegation of anal intercourse. Rather, he said, the complainant had had anal intercourse with him in a consensual encounter. He added that he could not have had anal intercourse with the complainant because for some years he had been unable to achieve an erection. It is this which gives rise to the new evidence in the appeal. 6 The appellant relied upon his own affidavit and reports from two medical practitioners. We received this material provisionally, as the Crown prosecutor in this Court did not concede that it met the test for admission of fresh evidence in an appeal. In response, without objection, the Crown read a number of affidavits and tendered some documentary material. For the most part this related to the conduct of the trial by the appellant's earlier legal representatives. As will be apparent from these reasons, we determined that the interests of justice required the admission of the evidence tendered by the appellant. 7 What emerges from that evidence is that in April 1999, almost two years before the incident in question, the appellant consulted Dr Jonathan Corbett-Jones, a general practitioner in Bathurst, about a number of medical problems, including impotence. Dr Corbett-Jones' report records that the appellant "had a significant history of ischemic heart disease and coronary heart disease and had a previous myocardial infarct". The report continues: He stated at the time that impotence was his main problem and we did in fact discuss with him aspects of this, however I cannot detail specifically whether in fact he was impotent all the time or impotent only at some stages. I would have to guess in view of his age and his history and the fact that he was seeking further help regarding that, that in fact he was having significant problems with sexual intercourse. He may have been able to maintain erections at other times but he was certainly on a few medications that were responsible for looking after his heart and blood pressure and in fact also took anginine tablets and there would have been a significant concern regarding treating him with some of the medications that were used for impotence, namely Viagra in view of the cross reaction with nitrates, which is what anginine is. 8 At a further consultation later in the same month, he discussed with the appellant the possibility of using a medication for impotence, Caverject, but it was not prescribed at that time. However, when he was before the Court on 20 November 2003 the appellant said that he had later obtained a prescription. 9 Before the trial the appellant told his then legal representatives that he had sought treatment for impotence, but he mistakenly named the general practitioner as Dr Cohen-Brown. Inquiries by his solicitor failed to locate a practitioner of that name, and the trial proceeded without any medical evidence. It was his present solicitor who tracked down Dr Corbett-Jones. 10 For the purpose of the appeal the appellant's solicitor also obtained a report of Dr Chris McMahon, genitourinary physician. Dr McMahon did not examine the appellant but reviewed a volume of material relating to him, including Dr Corbett-Jones' report. Having noted the appellant's age, he wrote: Large community based epidemiological studies suggest that approximately 50% of men in this age group have erectile dysfunction with 13% experiencing complete erectile failure. Approximately 75% of men at the age of 60 who suffer erectile dysfunction will have an underlying physical cause. The most common physical cause is penile vascular disease or narrowing of the penile arteries resulting in a reduced blood flow into the penile erecting chambers. Penile vascular disease is more likely to occur in men with hypertension, diabetes, hypocholesterolemia, coronary artery disease and in men who smoke. Men with coronary artery disease are 1.9 times more likely to develop erectile dysfunction. Men with hypertension who smoke cigarettes are approximately 3 times more likely to develop erectile dysfunction. In as much as Mr Johnson has multiple penile vascular risk factors, i.e. hypertension, coronary artery disease, and serious smoking, he was at the time of the alleged offence highly likely to suffer a degree of erectile dysfunction. His decision to discuss his sexual difficulties with Dr Corbett-Jones during two separate consultations in April of 1999 suggests a significant degree of dissatisfaction with his sexual function. The majority of men who present for treatment of erectile dysfunction choose to delay seeking advice until their sexual function has deteriorated to the point of frequent sexual failure and significant distress. In general, successful penetration requires a rigid or close to rigid erection. It is speculative but reasonable to assume that anal penetration of an 18-year-old man would require a relatively rigid erection. It is also speculative but also reasonable to suggest that a 60-year-old man with vascular risk factors who has previously reported erectile dysfunction to his treating doctor would have significant difficulties in penile anal penetration. I am unable however to unequivocally state that Mr Johnson at the time of this alleged offence would have had sufficient erectile dysfunction to preclude penile anal penetration. 11 The grounds of appeal arising from the new evidence were as follows: Ground 1: There was a miscarriage of justice in that there is a significant possibility that the Court would have reached a different verdict if that Court had been aware of medical evidence supporting the appellant's statement to the police that he was unable to achieve a penile erection. Ground 2: In the alternative to ground 1, the trial miscarried as a result of the failure of the appellant's legal representatives to exercise due diligence in obtaining such medical evidence as is now available.