Family doctor must appear in court again for alleged rape of a patient

Shafiul Milky, 60, was sentenced to a minimum of 11 years in prison for allegedly sexually abusing six female victims, five of whom were patients at the Peninsula Family Medical Practice in Ocean Grove.

His conviction in April last year came after a jury found him guilty of two counts of rape, nine counts of sexual assault and four counts of indecent touching between 2012 and 2019.

But appeal judges Karin Emerton, Phillip Priest and Stephen Kaye on Monday overturned the jury’s verdict and ordered a new trial, finding that Mr Milky had suffered a significant miscarriage of justice.

The verdict has shocked one of his alleged victims, Fran Millington, who must now prepare to testify against the family doctor again in court.

Ms Millington, who has given permission for her name to be disclosed to the Geelong Advertiser, said she would “continue” the fight for justice.

“It feels like another bump on a very long road,” she said.

Theo Kassimatis KC, counsel for Mr Milky, successfully argued that his client had suffered a significant miscarriage of justice because the trial judge’s directions regarding the presentation of evidence and the justification of the bias had been erroneous.

The prosecution alleged that Dr. Milky tended to abuse his position as a physician to engage in touching or penetration during consultations with patients that were of a sexual nature and served no legitimate medical purpose.

The Court of Appeals concluded that the trial judge had erred in extending the prosecution’s evidence of tendency. He instructed the jury that it could use evidence of tendency in three “uncharged offenses” that the prosecution had not relied on for that purpose.

Mr Kassimatis was also able to successfully argue that his client had been denied a fair trial.

He said Judge Felicity Hampel had failed to give the jury directions under sections 43(1) and (3) of the Jury Directions Act 2015 and had given reasons for refusing to give the requested directions which were neither appropriate nor good.

Justice Emerton, Justice Priest and Justice Kaye said the error in the instructions on the first ground of appeal had “infected” the jury’s deliberations.

“We cannot conclude that it would have made no difference to the jury’s verdicts,” the decision said.

“We are therefore convinced that this is a significant miscarriage of justice.”

Mr Milky also argued that medical records showed that one of his alleged rape victims had provided the date on which she was examined by another doctor.

The Court of Appeal found that the GP in question, who also worked at the Ocean Grove clinic, should have been called during the trial or the jury should have been instructed to tell her why this had not happened.

In addition, a nurse stated that she was present as a supervisor at

Investigations of this kind contradict the statements of a second complainant.

The prosecutor told the jury that a receptionist may have been present, but that she was not

identify and try to provide evidence from the receptionist.

The Court of Appeal held that Milky had succeeded in his appeal.

“It follows that the application for leave to appeal against the conviction must be granted, the appeal allowed, the convictions quashed and a new trial ordered,” it said.

Mr Milky was released on bail pending a retrial.

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