Family doctor calls for reopening of case after judge’s error

Shafiul Milky appealed against his conviction and sentence before the Victorian Court of Appeal, arguing that he was not given a fair trial before Justice Felicity Hampel.

Milky, 60, was sentenced to a minimum of 11 years in prison. Judge Hampel described the crime as a “predatory” and “serious sexual crime” against 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.

Another of his victims was visited by the doctor as part of the National Home Doctor Service. Appeal judges Karin Emerton, Phillip Priest and Stephen Kaye adjourned the hearing on Friday and reserved a decision.

Theo Kassimatis KC, counsel for Mr Milky, argued that a miscarriage of justice had occurred in the trial and in the arraignment of his client, who appeared via video link from prison.

Mr. Kassimatis told the court that Judge Hampel made an error in instructing the jury by improperly introducing into evidence potentially prejudicial evidence of “non-charged offenses.”

The judge and the public prosecutor admit this error, but argue that taking it into account does not constitute a miscarriage of justice.

Mr Kassimatis also pointed to a significant “change” in the way the prosecution presented the case during the trial, citing this as a reason for a retrial after a victim changed the date on which she was raped by Mr Milky.

The prosecution told the jury at its opening hearing that the woman was raped in October 2017.

They later learned that it was February of the same year.

Mr. Milky argues that medical records prove that the date she provided shows that she had seen a different doctor.

The Court of Appeal was also informed that the other general practitioner mentioned was not called upon during the hearing.

Judge Priest questioned whether there was a plausible explanation for why the witness was not identified.

“She was just down the street,” he said.

“This was crucial to the process.”

Mr Kassimatis told the judges: “Crucially, at no point prior to the prosecution’s address to the jury was it suggested that the clinical notes were false, had been tampered with or could not be relied upon.”

Mr Milky remained calm throughout the hearing.

He was well-groomed, wore a green long-sleeved shirt, a trimmed, greying beard and reading glasses.

Behind him, leaning against the wall, were two crutches.

A date for the appeal judgment has not yet been set.

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