In Tuhura v The Queen, CA493/2009, 10 June 2010, the Court of Appeal considered medical evidence called by the Crown from a Doctors for Sexual Abuse Care (DSAC) doctor opining that certain injuries to the genitalia of the complainant were strongly indicative of non-consensual sex. Although this type of opinion had been successfully challenged in a number of other cases (R v A, CA136/03, 24 July 2003; R v Garraway, CA427/07, 12 February 2008; R v Honotapu, CA98/08, 22 December 2008; and R v Matenga,  3 NZLR 145 (SCNZ)), such medical evidence continues to be adduced from DSAC doctors in sexual offence cases.
In Tuhura, the Court of Appeal added a “Postscript” directing the Registrar make a copy of its judgment available to the Solicitor-General, the Criminal Bar Association and to DSAC doctors “so that the difficulties which arose in this case and in the cases reviewed earlier in this judgment are not repeated in future cases”. In this article, I elaborate the reasons for this Postscript.
Where a complainant makes a complaint of sexual offending close in time to the date of the alleged offending, the police will usually have the complainant medically examined. Such examinations are often carried out by a doctor who is a member of DSAC.
On its website (www.dsac.org.nz), DSAC describes itself as a professional organisation of doctors from many disciplines, whose prime focus is education and support of medical practitioners to ensure maintenance of internationally recognised standards of best practice in the medical and forensic management of sexual assault. DSAC has no permanent funding, although it has received funding in the past from a number of private and public sector sources.
DSAC doctors help those affected by sexual abuse, advocate for the provision of medical care for victims, liaise with support and counselling groups, police and offender treatment providers, and provide information about medical care for sexual abuse victims.
In some cases of sexual assault, complainants present to DSAC doctors with relatively minor genital injuries, variously described as lacerations, bruising, abrasions and cuts. Upon examination, some demonstrate tenderness and sensitivity. Injuries are measured and diagrammed.
Counsel acting for accused persons and Crown counsel calling evidence from DSAC doctors need to be alert to the fact that there is no proper clinical or research basis for a DSAC doctor to express an opinion on the issue of consent when genital injuries of a relatively minor nature are found. Moreover, it is usually not possible for a DSAC doctor to identify the specific cause of any such injury, that is, whether it was caused by alleged sexual contact or otherwise. It is often not possible to date such injuries accurately.
Doubt as to date and causation of injuries can be significant: some doctors opine that such injuries are the result of “blunt force trauma”, which is a description more commonly associated with severe injuries inflicted following an attack with a weapon, or arising from a kick or punch. Defence counsel should be alert to these issues when preparing the defence, and prosecutors should be alert to these issues when determining the content of the evidence to call from a DSAC doctor.
The Court of Appeal made it plain in Tuhura that prosecutors should not call evidence relating to the question of consent based on such clinical evidence, nor should they close on the issue of consent by reference to such clinical evidence. In all of the cases that have come before the Court of Appeal on this issue, the Court has held that evidence of this kind has led to a miscarriage of justice.
However, where the injuries presented are more widespread or severe, defence counsel should consider obtaining a second opinion about the likely date and causation of any such injuries. While severe injuries that can be dated might in some cases support an allegation of non-consensual sex, this should not be taken for granted. Research and medical opinion in this area is not settled: what may appear to be a common sense conclusion from such evidence often does not follow when scrutinized by a qualified expert. Moreover, some of the terminology deployed by DSAC doctors can risk a jury drawing wrong conclusions about the cause and extent of the injuries.
Counsel usually have no background medical information about a complainant – for example, where there is tenderness this can sometimes be caused by other medical conditions. DSAC doctors usually do not take a full medical history from a complainant, nor, in my experience, do they obtain medical records from a complainant’s general practitioner. It cannot therefore safely be concluded that even large areas of tenderness, swelling or bruising are necessarily indicative of forceful or non-consensual sex. There can be other medical reasons for such symptoms.
The approach of some defence counsel has been to obtain from a DSAC doctor witness an acknowledgment of a “possibility” that such injuries are consistent with consensual sex. However, such a qualified acknowledgement does not render the doctor’s evidence admissible at trial, or make it reliable. It is also unlikely that such an acknowledgement will assist the defence when the complainant’s account is apparently consistent with the injuries, and re-enforced by the primary opinion of the doctor that non-consensual sex is the most likely possibility.
The Court of Appeal’s Postscript in Tuhura signals its concern that there are too many cases coming before the Court on this issue. All counsel have a duty to scrutinise such evidence properly, to ensure that it has a proper basis.
Issues such as date, causation and alternative medical diagnosis must be considered before such evidence is given before a jury. This will sometimes mean obtaining a second opinion or, in the Crown’s case, careful briefing of the DSAC witness prior to trial.
Warren Pyke is a Hamilton barrister.
This article was published in LawTalk 753, 28 June 2010, page 5.