‘Honest but mistaken’: Brisbane doctor’s rape charge dismissed

A Brisbane doctor’s rape charge has been dismissed after a magistrate found that a jury would, at most, be able to find his accusing patient “honest but mistaken”.

Doctor Sayonne Sivalingam. Pic: Glenn Campbell

A Brisbane doctor’s rape charged has been dismissed after a magistrate found that a jury would, at most, be able to find his accusing patient “honest but mistaken,” despite her claims she told a witnessing nurse to “make it stop”.

Sayonne Sivalingam was charged with digitally raping a patient during a rectal examination while he was working as a doctor at The Prince Charles Hospital, Chermside, in 2023.

The complainant claimed Dr Sivalingam had inserted two fingers into her vagina during the procedure.

Dr Sivalingam, who had also previously worked at Royal Brisbane and Women’s Hospital, denied this allegation.

At his committal hearing on August 8, the complainant claimed she had grabbed the nurse who was chaperoning the procedure and said “make it stop”, along with “is he in the right spot?”

But the nurse in question told the court that she didn’t remember the procedure, because nothing remarkable had happened.

The nurse said that if Dr Sivalingam had inserted his fingers in the complainant’s vagina that she would have seen it, would have intervened, and would have remembered.

If the complainant had raised any concerns or said “make it stop”, the procedure would have immediately been stopped according to the nurse.

After hearing the nurse’s evidence, defence barrister Jeff Hunter urged Magistrate Aaron Simpson to dismiss his client’s charges on the basis that no properly instructed jury could find him guilty.

The matter was adjourned for the prosecution to review a transcript of evidence provided throughout the hearing.

At the hearing’s finalisation on Friday, August 16, Dr Sivalingam appeared over the phone as he now resides in Melbourne.

Prosecutor Kyle Kinsella accepted there were inconsistencies in the complainant’s evidence, but said they didn’t go so far as to warrant a “no case” finding.

He suggested Mr Simpson should attach little weight to the nurse’s evidence because she didn’t remember the specific incident.

Mr Simpson questioned, “Isn’t that the point?”

“That it was so unremarkable, that there is a system in place … For example, I don’t remember three years ago on a Tuesday as to whether there was a fire alarm here, but I have never been involved in a fire evacuation at the BMC (Brisbane Magistrates’ Court).”

If it weren’t for the nurse’s evidence, Mr Simpson said he would be committing the matter to trial.

“I put substantial weight on the evidence of the chaperone nurse in forming my conclusions today,” he said.

“It was the evidence of a person that had an absolute clear view of what was going on … evidence that was solid and credible and reliable.”

Mr Simpson said he also found inconsistencies in the complainant’s evidence.

The complainant had said she had “confirmed (her) suspicion” that Dr Sivalingam had put his fingers in her vagina after finding lubricant in that area.

But a doctor had testified at the committal hearing that it was possible for lubricant to be moved into that area during a rectal examination.

The same doctor had said it was possible for a woman to feel penetration in the vagina when someone was actually penetrating the rectum.

Mr Simpson noted the complainant had never received a rectal examination before, had been feeling unwell at the time, and was “in her own words, in a state of confusion”.

“Her evidence is a set of connected dots, where ultimately she’s still not certain but has formed the conclusion,” he said.

“I think the complainant’s evidence in many ways, without going to attack her general credibility, could be at its absolute highest would be that she’s perhaps honest but mistaken.”

Mr Simpson concluded that no properly instructed jury would be able to find Dr Sivalingam guilty of rape.

He refused to commit Dr Sivalingam to trial and dismissed the charge.

Dr Sivalingam thanked Mr Simpson over the phone after he heard that he had formally been discharged.