THE QUEEN v MORGAN FRANCIS FAHEY [2000] NZCA 48 (11 May 2000)

ORDER PROHIBITING PUBLICATION OF ANY REPORT OF THIS JUDGMENT UNTIL AFTER TRIAL

IN THE court of appeal of new zealand

ca94/00 CA135/00

THE QUEEN

V

MORGAN FRANCIS FAHEY

Hearing:	3 May 2000
Coram:	Richardson P Gault J Tipping J
Appearances:	C A McVeigh QC for Applicant
	S P France for Crown
Judgment:	11 May 2000

judgment of THE COURT DELIVERED BY GAULT J

[1] There are two separate applications for leave to appeal against rulings that evidence is admissible at the trial of the applicant.

[2] The applicant, a medical practitioner, faces 11 charges of indecent assault, one of rape and one of sexual violation arising from alleged conduct with 11 different patients over a period from 1966 to 1997.

[3] In the first application there is in issue proposed evidence from two experienced medical practitioners to the effect that conduct which a number of the complainants allege occurred would not have been part of any appropriate medical practice and would have been professionally unacceptable.

[4] For the applicant objection to this evidence was taken because the prepared statements of the two witnesses indicated a repetition of the allegations of each complainant by way of introduction to the expression of expert opinion. This was seen as likely to unjustifiably repeat and emphasise the evidence of the complainants without having any additional probative value.

[5] Further, by letter from the applicant's solicitors, Crown Counsel were advised that the accused accepts that the conduct alleged by the particular complainants would not comprise acceptable medical practice.That did not persuade the Crown to accept that the evidence of the doctors was unnecessary and so an application was made under s344A Crimes Act 1961 for admissibility to be determined.

[6] Before the Judge, at a hearing on 9 and 10 March, the indication had been given that if a concession were made that such conduct would not be proper medical treatment the evidence of the doctors would be unnecessary.However, after the letter of concession had been written, the Crown persisted.It was said that the concession was not, and would not be, a formal admission under s369 Crimes Act, and that the evidence was relevant in that it tended to negative consent or belief in consent the absence of which were elements of the offences for the Crown to establish.The Judge was informed by counsel for the applicant that consent, direct or implied, will not be an issue in the case and that the defence will open on that basis.Nevertheless the Crown maintained the entitlement to lead the evidence in discharge of the burden of excluding consent.

[7] The Judge ruled on 14 April as follows:

In the absence of the evidence of the complainants, other than depositions, the Court is placed in a somewhat difficult position.It is impossible to guess how the evidence may unfold in the course of cross-examination.It may be that in some shape or form consent will become an issue that must be put by the Court to the jury, despite any concession that may be made by the defence, accepting without hesitation that those concessions will be properly made by counsel now appearing.

There is a further relevant consideration put forward by Mr Squire, and that is that ... if there is a conviction it is not certain that the same counsel will be instructed, and a different view may be taken of the whole question of consent.

The onus is on the Crown to prove the absence of consent.This evidence is relevant, probative and necessary to that.I rule it to be admissible.

[8] In the course of argument in this Court we questioned why the acknowledgement that the conduct alleged would not have been proper medical practice could not be the subject of a formal admission of fact under s369 so as to "dispense with proof" in terms of that section.It was said that the reason was that it was evidence of opinion not fact.But that seems to confuse the fact to be admitted with the evidence tending to prove that fact.If it is admitted as a fact that certain conduct is not proper medical practice, then there is no need to lead evidence of expert opinion tending to establish that fact.

[9] In any event we indicated that the evidence could, and if given should, be given in such a way as to avoid the repetition of the evidence of each complainant.But it seems that the evidence will be unnecessary if the defence make it clear that consent and belief in consent are not in issue.Mr McVeigh for the applicant reiterated that this is the position.Therefore it is simply a matter of devising a means for conveying that to the jury without prejudicing the defence of denial that the conduct alleged occurred.That could be achieved by a formal admission and a statement in opening by the defence along the lines that:

There was not and could not be any factual basis for a defence of consent by the complainants nor belief by the accused that there was such consent in respect of conduct of the kind alleged.

[10] Counsel were content with the expression of these views and considered that suitable agreement now can be reached.The matter therefore is left for counsel to settle a course satisfactory to them with leave to apply to the trial Judge if necessary.Leave is granted and the appeal is allowed to that extent and disposed of on that basis.

[11] The second application is directed to evidence of one of the complainants as it relates to a meeting she had with the applicant in his surgery on 19 October 1998.On that day, which was shortly after the screening of a television programme about alleged misconduct by the applicant which had encouraged her to make a complaint to the police, the complainant, fitted with a concealed video camera provided to her by TV3, visited the doctor keeping an appointment she had made without disclosing the purpose of her visit.As recorded on the videotape, the complainant confronted the applicant with the allegation that when she had consulted him for medical advice 28 years before, he had sexually abused her by use of a vibrator and subsequent sexual intercourse.The Crown will rely on comments made by the applicant in the course of the discussion as constituting admissions by him.

[12] Before the Judge other grounds of objection were argued, but in this Court the argument was confined broadly to the issue of whether the Judge erred in not exercising his discretion to exclude the evidence on the ground of fairness.

[13] Although they may be regarded under the general heading of fairness, the submissions for the applicant were framed with reference to two aspects. First, it was submitted that having regard to the manner and circumstances in which it was obtained it would be unfair to the accused for the evidence to be given at his trial and it should have been excluded.Secondly, it was argued that in the circumstances the evidence would likely have prejudicial effect far outweighing its probative value and should have been excluded on that ground.

[14] There underlies the whole matter two basic propositions.The accused is entitled to a fair trial - that is fair to the accused and fair to the public. Evidence that is obtained illegally, if relevant and probative, is admissible subject to the discretion of the trial judge to exclude it on fairness grounds: R v Coombs [1985] 1 NZLR 318, 321.The Judge's ruling on this ground contains reference to these general principles noted in passages in the judgments of the High Court of Australia in Bunning v Cross [1978] HCA 22; (1978) 19 ALR 641, of Eichelbaum CJ in R v Dally [1990] 2 NZLR 184, and of this Court in R v Grayson & Taylor [1997] 1 NZLR 399.These general principles are not disputed.

[15] The Judge in applying the principles said:

In relation to this I agree with the submissions of Mr Squire.They are that [the complainant] was entitled to confront Dr Fahey about such a serious matter, which was clearly of great concern to her.There is compelling evidence of the difficulty she faced with this, and it was only the first television programme that allowed her to confront it.As Mr Squire said, she confronted Dr Fahey for entirely personal reasons, and she would have been entitled to make a note of it, or to inform a police officer as to what transpired.In my view, there is nothing unfair in this evidence, and I would not exclude it on that ground, even if it was illegally obtained.

That leaves the video itself.Earlier I have referred to the passage that Mr McVeigh described as "a confession".It could be argued that it is not "a confession" because of the use of the term "if" throughout the relevant passage.Rather, it seems to me that the greatest impact on the jury of the video is not simply the words used, but Dr Fahey's body language.That would, of course, be for the Jury and not for me, but that is the impression that I gained.While one could be concerned with TV3's editing process, one can understand the complainant and the steps she took.As Mr Squire submitted, it is difficult to distinguish this case from R v Taylor [1993] 1 NZLR 647. In that case, the appellant recorded two conversations on audio tape with a co-accused prior to a killing.It appears that there are a number of inaudible and unintelligible passages.In this case the conversation is recorded on film, and most of it is intelligible.Mr Squire submitted that the video would give the Jury the opportunity of not only considering the contents of answers, but to observe the demeanour of both.That is clearly incorrect, as only Dr Fahey is interviewed.

However, at the end of the day, I am satisfied that the video recording is the best evidence possible of what occurred between [the complainant] and Dr Fahey. It would seem to me to be artificial to allow [the complainant] to give evidence of what occurred, and to be cross-examined on it, as if the video did not exist.I am satisfied that it should be admitted.

[16] It is to be recorded that counsel for the applicant approached the matter in this Court on "all or nothing basis".He did not seek to distinguish between the evidence the complainant might give of the conversation and the videotaped record of it.It was accepted that if the evidence is to be given it should be given in its entirety including the videotape.That, of course, is subject to any editing that might be agreed or directed to exclude any particular statement on the tape that has no probative value and might be prejudicial.Neither counsel nor the Crown have considered whether that might be necessary or desirable.

[17] Mr McVeigh submitted that the Judge, although he made no error in stating the applicable principles, approached the application of those principles too narrowly.He contended that the Judge focussed on one issue only, namely the motives to be attributed to the conduct of the complainant in gaining entry to the applicant's surgery and procuring the evidence, whereas he should have looked at all the circumstances to determine whether or not the evidence was unfairly obtained so that its admission could work unfairly on the applicant. He invited us to find the Judge's approach was in error and to look at the matter afresh.

[18] We are not convinced that the Judge is to be taken as so confining his consideration of the matter.It does not necessarily follow from his view that "there is nothing unfair in this evidence", that he took account only of the complainant's motive.Nevertheless we have looked at the matter for ourselves in light of the full submissions made on behalf of the applicant.

[19] Mr McVeigh referred to the judgments in the decision of the High Court of Australia in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 as instructive of the underlying reasons for the discretion to exclude on fairness grounds.In particular he relied upon the inherent unreliability of confessions or admissions obtained by illegal or improper means.Whether the circumstances in which a statement is obtained are such as to give concern for reliability will be a question of fact in each case.A statement obtained by torture will be very different from a spontaneous statement made to a person unlawfully on premises.Mr McVeigh's general approach is, however, entirely correct.A judgment is to be made in light of all the circumstances.

[20] As was made clear by Eichelbaum CJ in Dally (p 192) the discretion to exclude on fairness grounds embraces both the fairness of an accused's trial where improperly or unlawfully obtained evidence is given by the Crown and the need on public policy grounds to avoid sanctioning conduct likely to bring the administration of justice into disrepute.With reference to the latter, it was submitted that to admit the evidence in this case would be to sanction unlawful conduct so far as there was involved trespass by the complainant equipped with a concealed video camera.

[21] We were referred to the earlier decision of this Court in a civil proceeding in TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129, 135 in which we said:

This brings us to the third ground, trespass and invasion of privacy.Trespass is a civil wrong and entering and remaining on Dr Fahey's premises for the purpose of confronting him with allegations of sexual and professional misconduct and surreptitiously recording the conversation could scarcely come within the terms of the normal implied licence to attend at a doctor's surgery.

[22] That case was directed to the conduct of TV3 and focussed upon the provision of the video camera with a view to public broadcast of the recording. We are now presented with the need to focus not on the video recording but on the procurement of the conversation by the complainant - a former patient. That is because of the "all or nothing" stance taken on behalf of the applicant.To the extent that unlawfulness is aggravated by, or arises out of, the carrying of the concealed video camera it is of little moment because any sanction for that would be exclusion from evidence of the recording and that is not sought if the complainant's evidence of the conversation otherwise can be given.

[23] It is not at all clear that there is any unlawfulness in a former patient obtaining an appointment with a medical practitioner to complain of misconduct in the course of previous purported medical treatment.But even assuming there was an element of exceeding the terms of the implied licence, which was not waived by the doctor engaging in and continuing the conversation after learning its real nature, that is not unlawfulness of a gravity calling for sanction by the exclusion of the evidence of the discussion.

[24] What then is said to be unfair to the applicant in allowing the evidence to be given at his trial?Mr McVeigh advanced a number of factors which he submitted at least in combination give rise to concern on the grounds first, of the reliability of the applicant's statements, secondly through denial of the applicant's right not be coerced into self-incrimination and thirdly, because of potential unfairness to the applicant if the video is shown against the background of previous publicity.Those factors, as set out in the written submission, are:

(c) The accused was in effect "ambushed".

(d) The accused had little or no opportunity to exit.

(e) The peculiar and unique nature of the doctor/patient relationship:R v Swaffield at 221.

(f) This was not a voluntary series of statements by the accused but rather responses to persistent haranguing by the complainant in the nature of accusations or cross-examination:R v Barlow (1995) 14 CRNZ 9;R v Szeto (CA240/98 30.9.98);R v O (No 4) (Christchurch High Court T64/91, 13.2.92, Williamson J).

(g) The whole exercise was designed:

(i) To allow the complainant a catharsis;and

(ii) To obtain footage for a television programme.

(h) The accused did not have the benefit of legal advice:R v Webster [1989] 2 NZLR 129 and R v Alexander [1989] 3 NZLR 395.

(i) The accused's medical condition:See evidence of Doctors Walshe and Chaplow;and the transcript of the confrontation itself.

(j) The case comes very close to a lack of voluntariness because of persistent importuning:Naniseni v The Queen [1971] NZLR 269, 274.

[25] In addition it was submitted that the statements of the applicant are at strongest only marginally capable of being construed as admissions, whereas the potential prejudice is serious because:

In this case however, there is another and unique ground which bears on this issue.One of the grounds advanced by the accused in an unsuccessful application for a stay, was based on his inability to obtain a fair trial having regard to the extensive, prejudicial pre-trial publicity.The judge came to the conclusion that the accused could obtain a fair trial.At paragraph [116] he noted however that:"... this case is close to the line".Here His Honour was referring to a seriously flawed reconstruction of this taped interview shown on national television (... judgment, paragraphs [88] and [99]).It is submitted that, in the interests of justice it would be better if the jury are told at the outset that they must disregard all publicity that the case has engendered and not be reminded in any way of the tainted broadcast.It is submitted that to show this tape and draw attention to it with oral evidence could at worst, bring the original broadcast to mind;and at best, confuse the jury.In this context, it is submitted that the words of Giles J in R v Ulumoto (Auckland HC T123/98, 14.7.98) are apposite:

...when matters are finely balanced the Court should err in favour of the defence and the need to ensure a fair trial.

[26] These matters were reviewed at some length in the course of argument.At the end we have not been convinced that the case for discretionary exclusion of what otherwise is admissible evidence is made out.

[27] Although it is not decisive, it is a factor that we are not dealing with statements made to a person in authority such as a police officer.The element of inherent coercion in that situation is not present.There was no imbalance of strength or influence in the relationship.Undoubtedly there would have been a degree of surprise in the sudden confrontation, but not such as was likely to have overborne the will of a practising medical practitioner.Nor was the emotional nature of the confrontation and its persistence of concern in that regard.

[28] Consideration of the transcript of the conversation leaves no concern that the applicant in some way fell under the control of the complainant.In fact the situation is little different from many in which evidence is given of statements made by an accused out of court to persons by whom he or she has been confronted with allegations of criminal conduct.

[29] The applicant, in the course of the discussion, did mention his state of health.We were referred to affidavit evidence from two doctors and cross-examination directed to that.But there is simply no sufficient evidence of any medical condition at the time rendering the applicant vulnerable to suggestion or incapable of rationally dealing with the encounter.He was medically fit to practise and continued to do so for a period of months thereafter.

[30] Potential prejudice from the prior publicity was relied upon.It was submitted that even though the Judge had not been persuaded that the prosecution should be stayed, there is the risk that the showing of the videotape might revive in the minds of the jury the earlier publicity including the screening of selective and misleading parts of the videotape in the course of a TV3 television programme some 18 months ago.

[31] The Judge considered that showing the full, uncut, videotape more likely would remove any lingering impact of the previous publicity.Mr McVeigh challenged that.He maintained that although, as the Judge had held, there could be a fair trial notwithstanding the earlier publicity, that would not be the case if a central part of that publicity were brought into the evidence.

[32] The lapse of time must mean that any recollection by jury members at the trial will be imprecise and most unlikely include detail such that the previous misleading slant in the publicity will have impact even after the full videotape is shown.We think the view taken by the Judge was correct.

[33] Taking all of the factors relied upon together we find ourselves in the same position as the Judge.We do not see that there would be unfairness in admitting the evidence such as calls for discretionary exclusion.

[34] While leave to appeal is granted, this appeal is dismissed.

Solicitors

Anthony Harper, Christchurch, for Applicant

Crown Law Office, Wellington, for Crown