Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. DAVIES J: I agree with Wright J.

2. WRIGHT J: Between 2013 and 2019, the applicant, Mr Ming Jie Hu, was an osteopath practising in Sydney under the business name Back Pain Solutions.

3. On 29 August 2023, he was found guilty of: one count of aggravated indecent assault of a patient in February 2013, count 1; and, one count of aggravated sexual intercourse without consent in relation to another patient in September 2019, count 2. The jury was unable to reach a verdict on two other counts of aggravated sexual touching without consent, counts 3 and 4, which related to two other patients in October 2019.

4. By a notice of appeal filed on 16 October 2024, the applicant seeks to appeal against his conviction on counts 1 and 2.

Background

The charges

5. The applicant was charged with four offences. Each of the offences related to a separate complainant. I shall refer to the four complainants as JB, NK, AF and KC. [1] The four offences were as follows:

Count 1 - aggravated indecent assault of JB contrary to s 61M(1) (now repealed) of the Crimes Act 1900 (NSW) between 1 and 28 February 2013;

Count 2 - aggravated sexual intercourse with NK without consent contrary to s 61J(1) of the Crimes Act on 30 September 2019;

Count 3 - aggravated sexual touching of AF without consent contrary to s 61KD(1)(a) of the Crimes Act on 8 October 2019; and

Count 4 - aggravated sexual touching of KC without consent contrary to s 61KD(1)(a) of the Crimes Act on 28 October 2019.

6. In each case, the aggravating circumstances were said to be that the complainant was under the applicant's authority.

Pre-trial ruling

7. On 11 July 2023, Abadee DCJ heard and ruled on the applicant's application for a separate trial for each count on the indictment. As stated by his Honour, the only basis for the application was the Crown's intention to rely on evidence from each complainant as being cross-admissible as tendency evidence in relation to the counts involving the other complainants. [2] As a result, his Honour also considered and ruled on the admissibility of the tendency evidence.

8. His Honour's conclusion was that the tendency evidence was admissible and "[t]here being no other ground for severance of the counts, the [applicant's] motion is dismissed". [3]

The commencement of the trial and evidence

9. On 1 August 2023, the trial before Huggett DCJ began and there was discussion with counsel concerning the circumstances of aggravation and the concept of being "under the authority" of another person.

10. On 2 August 2023, the jury was empanelled and during her Honour's opening remarks to the jury, a brief outline of the elements of the offences charged was given and this included an explanation of the circumstances of aggravation by a complainant being "under the authority of" the accused and the Crown's contention in that regard.

11. By way of evidence, the Crown called each complainant, five complaint witnesses, a chiropractor at Back Pain Solutions and the Officer In Charge.

12. The evidence in the defence case included that of the applicant as well as evidence from two expert witnesses: Dr Andrew Korda, an obstetrician and gynaecologist; and Dr Allan Terrett, a chiropractor. The defence also called evidence from three character witnesses, including one patient of the applicant who did not experience any conduct such as that which formed the basis for any of the four counts.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968a170c9d4a97087ad8d1d)

Disclaimer: Curated by HT Syndication.