Stubley v The State of Western Australia [2010] HCATrans 269 (20 October 2010)

Last Updated: 27 October 2010

[2010] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P29 of 2010

B e t w e e n -

ALAN JOHN STUBLEY

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 20 OCTOBER 2010, AT 10.06 AM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear with MR S. VANDONGEN for the appellant. (instructed by Michael Tudori & Associates)

MR J. McGRATH: May it please the Court, I appear with MR D.A. LIMA on behalf of the respondent. (instructed by Director of Public Prosecutions (WA))

GUMMOW J: Yes, Mr Grace.

MR GRACE: Your Honours, this appeal concerns the admissibility of the evidence of three propensity witnesses so-called who gave evidence in the trial of the appellant. The question of admissibility is governed by the terms of section 31A of the Evidence Act 1906 (WA).

GUMMOW J: We see that from your written submissions and your opponents that there seems an acceptance of the construction by President Steytler in Dair, is that right?

MR GRACE: As to the meaning of the phrase “significant probative value”?

GUMMOW J: Yes.

MR GRACE: Yes. If I could firstly just take your Honours to the section, I will take your Honours to that relevant passage in Dair.....section 31A is headed “Propensity and relationship evidence”:

(1) In this section –

propensity evidence means –

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

This section was introduced into the Evidence Act by Act No 46 of 2004 of Western Australia and was said at the time to significantly amend the admissibility of so-called similar fact evidence and, in effect, adopt, in part, some relevant and significant aspects of the dissenting judgment in Pfennig of Justice McHugh.

GUMMOW J: Does the language of the section in any way track Justice McHugh’s formulation?

MR GRACE: Yes. Yes, it does.

GUMMOW J: Can you refer us to that passage of Justice McHugh? It might be helpful.

MR GRACE: Yes. Subsection (2)(b) is a tracking - - -

GUMMOW J: Pfennig is [1995] HCA 7; 182 CLR 461.

MR GRACE: Yes. At 529.

GUMMOW J: Whereabouts in 529? The first full sentence?

MR GRACE: Yes, the first full sentence.

KIEFEL J: Could you give me the paragraph – is there a paragraph number? I appear to have the - - -

GUMMOW J: It is just page 529.

MR GRACE: Towards the top of the page, your Honours, and you will see the wording there and that corresponds with 31A(2)(b). Your Honours, if I could take you to Dair’s Case. Dair is an unreported decision - - -

HEYDON J: That is not correct, is it? It is the Western Australian Reports.

MR GRACE: Dair is an unreported decision of the Court of Appeal of Western Australia.

HEYDON J: It is reported.

MR GRACE: Is it?

HEYDON J: Yes.

MR GRACE: I apologise, your Honours. Yes, I am told it is now in [2008] WASCA 72; 182 A Crim R 385. If I could take your Honours to - - -

HEYDON J: What about [2008] WASCA 72; 36 WAR 413? It is the official report.

MR GRACE: Yes, thank you, your Honour. If I could take your Honours to paragraph 60 in the judgment of President Steytler and there, at paragraph 60, his Honour says this when considering the phrase “significant probative value” in section 31A(2)(a):

The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303; 158 A Crim R 431 at [50]. It could otherwise have no probative value, let alone “significant” probative value.

Before evidence can have significant probative value it must be such as “could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere . . . relevance”: Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171 at 175-176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a “substantial” degree of relevance and that it is a probative value which is “important” or “of consequence”. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact.

A number of cases are there referred to. So that is what has been accepted as the law and the parties to these proceedings accept that statement by his Honour as correctly reflecting what significant probative value means. The primary contention of the appellant in this appeal is that the evidence of the three witnesses was not probative, let alone significantly probative, of any fact in issue at the trial. Identification, obviously, of relevant fact or facts in issue in a trial is a necessary commencing point in determining whether the evidence of any so-called propensity witnesses has significant probative value.

Certainly in the case of the appellant’s trial it was a necessary commencing point in determining whether the evidence of those three non-complainant witnesses was of significant probative value. If I could ask your Honours to look at volume 1 of the appeal book at page 88B. What I am about to read to your Honours is an extract from the prosecutor’s opening to the jury. There are a number of pages which are prefixed by the numerals 88 and you will see at 88A the State prosecutor’s opening address cover page. At 88B, at line 45, this is what the prosecutor said:

Again from a reading of the indictment it will be clear that the allegations are that on a number of occasions in this period the accused sexually assaulted the two complainants. As I understand it, and as will become clear (indistinct) during the course of the morning the issue in respect of most if not all of these charges on the indictment is not how the prosecution prove that the sexual acts actually occurred. That as I understand it will be in the main at least accepted. Rather the issue will be whether the prosecution have proved that the sexual acts that did occur occurred without the person’s consent as defined by law.

Then if we go to 88R, and this is continuing and towards the end of the prosecutor’s opening address, at line 20 the prosecutor says this:

Ladies and gentlemen, in due course you will be directed carefully by her Honour as to the relevance of that body of evidence that you will hear. You appreciate that the indictment is confined entirely to the allegations that arise from the conduct with [CL] and with [JG] but you will hear in evidence of other acts which have not given rise to any criminal offence upon this indictment. It has a relevance. That relevance will be explained to you but, in essence, the prosecution rely upon it as evidence of Dr Stubley’s conduct in bringing about a situation where sexual activity occurred without consent in its legal sense but without opposition or resistance from the particular person.

The evidence has been put before you to establish the circumstances in which that sexual activity occurred and to potentially assist you as to the imbalance of power that existed in the relationship between Dr Stubley and the complainants that you are concerned with and to assist you in your understanding as to how it was that the complainant you are considering would acquiesce to sexual activity without violence or an express threat being employed.

The prosecution note that all of those witnesses, as is the case with the complainants, were patients of the accused. All suffered from some form of depression. The conduct was occurring over the same period; that is, from the mid to late 1970s. The witnesses were all of a similar age, from about 21 to their early 30s. Most, if not all, were scared of Dr Stubley. All of them could be characterised, we will submit, as vulnerable and as isolated and most, if not all, will tell you about Dr Stubley cleaning himself in a basin afterwards.

In the case of [LB] and [MM] there is some difference between their evidence and the evidence of [CL] and [JG] in that [LB] and [MM] will not say that they did what they did because of an express threat that they would, for example, be readmitted or admitted to a psychiatric unit if they didn’t succumb, but their accounts we say are similar in the sense of their similarity of age, same mental difficulties and the same method of behaviour by Dr Stubley in convincing them that what was occurring was normal and beneficial.

In [LB’s] case she was being informed that she was somewhat repressed and that she would benefit from the physical contact that developed. [MM] thought that what happened to her was part of the therapy. The focus of course will be on [LG] and [CL] but in considering their evidence you may well be assisted by the evidence of [LB] and [MM] about the ability of the accused to persuade them to engage in sexual conduct without their desire to do so. Finally, so far as [AW] is concerned the state rely upon her evidence as being capable of indicating to you the nature, the power of the accused’s personality, the influence that he exercised over his patients so that, in her case, she suddenly got up from the chair that she was sitting in, walked across to him, sat down in his lap and performed sexual activities on him because of a desire, as she saw it, to please him.

GUMMOW J: The expression “method of behaviour” in line 11 seems to be a development of line 28 on the previous page “conduct in bringing about a situation”.

MR GRACE: Yes. It was said in varying ways to amount to silence, authoritarian manner. It was never said that there were, in effect, demands to have sex. It was the demeanour, coupled with the vulnerability of the patients that was said to give rise to a creation of an imbalance, so that when it was suggested, for instance, take the case of JG, that she come and lie on the floor that she obeyed even though she says she did not consent or want to have sex, but she did so repeatedly and on many occasions. That is the practical content of what is said to amount to that method of behaviour.

The real facts in issue, as it became apparent, even from the commencement of the trial and the prosecutor’s opening address, because of the concession by the appellant that sex had occurred with the two complainants – there was no dispute that sex had occurred. There may have been some lack of memory as to the precise dates, even though the date is not an element, or as to the number of acts that occurred, but there was no dispute. The cross-examination of both JG and CL, the two complainants, revealed absolutely that there was no dispute that the sexual acts occurred.

Once you remove that as being a fact in issue that needed to be proved, the two real facts in issue were whether the prosecution had proved beyond reasonable doubt that JG and/or CL consented to the particular sexual activity that occurred as alleged and, secondly, whether, if they did not consent, the prosecution had proved beyond reasonable doubt that Dr Stubley did not honestly and reasonably but mistakenly believe that they had consented. The evidence of the three witnesses, AW, LB and MM, established at best that the appellant had some sexual activity with those women. It did not go any further.

It established that Dr Stubley had sexual activity with his patients in his position as a psychiatrist and although there was a dispute in relation to the witness MM as to whether she was in fact a patient at the time of the sexual activity, but putting that to one side, her evidence was that she was, all the evidence established, in our submission, was that Dr Stubley behaved in a morally reprehensible manner as a professional man, that is clear and there is no shrinking from that reality, but that is a big step removed from establishing that the sexual activity with those witnesses and with the complainants occurred with a lack of consent or a lack of belief in the fact of that consent.

That sexual activity with the witnesses AW, LB and MM certainly did not get to the stage of being significantly probative of the real issues. There was such a dissimilarity in their descriptions of their relationships with the appellant that the reliance on that evidence was misplaced. That became absolutely and abundantly clear when one comes to the final summing-up of the learned trial judge.

Could I take your Honours to page 404 of the appeal book. This is where her Honour.....to what her Honour says was the relevance of the three witnesses’ evidence and as to the so-called similarities. It commences actually at page 403. You can see at line 12 where her Honour starts talking about the evidence of LB, MM and AW. You will see at line 18:

Their evidence was offered for one purpose only and a very limited purpose. It doesn’t mean that it’s not a significant purpose but it does have a limited purpose that I must tell you about.

Over on page 404:

It bears upon the accused’s general behaviour or the surrounding circumstances of the conduct that the witnesses describe; that is, the circumstances which are said to surround the offences, not the sexual acts themselves.

What I mean by that is – you have heard the accused’s evidence. He talks about consensual, mutual sexual relationships between him and various patients. However, the evidence of the complainants, both of them, is of a situation where there is no discussion; there is no participation, with one exception, on their part. They are undressed; conduct happens, as I have said, with no discussion. There is the washing in the basin. That type of matter.

The surrounding circumstances are very different to what the accused man talks about in terms of what occurred . . .

You may consider the evidence of the other witnesses as to the conduct of the complainant which led to them not to object verbally or physically and again, for example, if the complainant, and you accept this, says that she found the accused threatening which is why she did not object, if one or more of the other witnesses said, “Well, I found him threatening for these reasons and that’s why I submitted without a complaint,” that evidence of the other witnesses may assist you in determining whether you accept the account, the explanation, of why there was no objection or why there was a return for consultation despite what is alleged to have occurred.

In that same context the account of the witnesses, if it is accepted by you, when considered together with the account of the complainant, the particular complainant that you are considering, might give you a better appreciation of the alleged imbalance of power in the relationship that is said to have existed. It is in relation to those sorts of factors to which the evidence may be used.

Can I just stop there and just observe that, of course, in any psychiatrist/patient relationship, doctor/patient, many relationships that occur within a professional setting in society there is what one could describe, not necessarily, but one could describe as an imbalance of power, that is, that the person is in a position of influence, such as a psychiatrist. That person is in a position of dispensing treatment. The person receiving the treatment is relying upon the doctor to give his or her professional best to that patient and there is a trust involved.

That is said, in the psychiatrist/patient relationship and was said in the context of this relationship with Dr Stubley, to give rise to what is described as an imbalance of power in the relationship, exacerbated by what was said to be the vulnerability of the particular patients because of their mental problems. Then on page 405, if I could continue, what her Honour goes on to say is this:

You can look at that evidence to see if – provided you accept it, – it supports the evidence of the complainant in relation to the circumstances surrounding the offending, the way in which the accused is alleged to have done certain things, to see whether there is some commonality in relation to those things. It may – it is always a matter for you of course – lead to you accepting that evidence when otherwise you may not.

That is the very limited way in which you can use the evidence of witnesses such as [LB], [AW] and [MM]; that is, if there are similarities or there is a commonality of circumstances between the evidence of the complainant and of the witness, you may consider the evidence of the witnesses and you may consider that the evidence of the complainant is thereby strengthened and as a result you may be prepared to rely on it.

. . .

The evidence can only be used to support the evidence of the complainant in relation to those sorts of matters and I must emphasise that very strongly. Some example of the sorts of similarities I am talking about is that you consider things – that the women were all patients. They all suffered from some form of mental illness. They consulted the accused during the same period of time. They were of a similar age. They could well be characterised as vulnerable and isolated.

There’s the evidence of the accused washing himself in the basin, there’s some support for that allegation, surrounding fact –

I will just stop there. The relevance of that in the consideration of the value of the evidence of those three witnesses was nought. The washing in the basin had no relevance to what were the facts in issue in the trial. The washing in the basin occurred after sexual activity and is in no way reflective of how or why it was said those three women succumbed to sexual activity when they said or indicated in their evidence that they did not want to do so. Then her Honour goes on to say at line 10:

There’s also the case of the physical contact in some cases commencing with the hug, that being used, if you accept that evidence, as the precursor to the sexual conduct that comes after that: asking the patient to lie on the floor . . .

When you are considering the evidence given by one of the complainants and you are considering what facts you find, what you are prepared to accept, you may think, “I’m not satisfied that the accused would behave in that particular way, it’s too unlikely or it’s too implausible.” The same evidence given by one of the other witnesses may support the complainant’s evidence, if you accept it, and lead you to review that sort of conclusion and conclude, “Actually I do accept that that occurred.”

BELL J: Her Honour there is speaking of the suggestion that the accused’s behaviour would have some implausibility, but that might be though to be addressed by the admission that as the psychiatrist he had had sexual contact with his patients. Really was not the issue here to do with the improbability of the patients behaving in the compliant way they did in circumstances where they asserted that they were not consenting?

MR GRACE: Is your Honour talking about the complainants or the three other witnesses?

BELL J: It is going to that issue; the question of the plausibility of the complainants evidence of non-consent.

MR GRACE: One has to examine the evidence because it is all different. Even though it was - - -

BELL J: I suppose, Mr Grace, all I am taking up with you is that at the passage you have just taken us to the trial judge’s directions are concerned with whether the jury would consider the accused’s conduct to be unlikely or implausible in a circumstance where the accused has acknowledged engaging in the conduct.

MR GRACE: Yes, that is so.

BELL J: Are you going to take us to where her Honour gave directions as to what in law consent embraces and the question of honest and reasonable belief?

MR GRACE: Yes, your Honour.

BELL J: I am sorry, I do not want to take you away from your course at the moment, but - - -

MR GRACE: Yes. Could I come back to that, your Honour? Our essential submission on this point that your Honour Justice Bell raised, was there was no sufficient similarities in the evidence of AW, LB and MM to justify a conclusion that the appellant had a particular propensity to behave in a particular way, that was of relevance beyond proof of a fact that he had sexual activity with his patients and that, as I said, was not an issue. Justice Buss at paragraph 357 in his judgment, in a judgment that was agreed with by Justice Owen, pages 607 and 608 of the appeal book – I will read that passage because it seems to be lynchpin of Justice Buss’ reasons for holding that the evidence of those three witnesses was significantly probative. At 357 his Honour says:

Although there were some material differences between JG, CL, AW, LB and MM in their evidence as to the specific characteristics of the dynamics of their relationship generally and their sexual interaction with the appellant, there were some common features of importance. These features comprised the position of power and the psychological ascendancy that the appellant enjoyed over each of the women. This power and ascendancy arose primarily from the following:

(a) the appellant was an experienced consulting psychiatrist and JG, CL, AW, LB and MM were his patients;

(b) the women suffered from depression or some other mental illness or, at least, a psychological difficulty requiring psychiatric treatment or psychotherapy;

(c) the women were, in varying degrees, frightened of the appellant;

(d) the women were, at least psychologically and emotionally, vulnerable and isolated;

(e) the women were significantly younger than the appellant; and

(f) the women perceived the appellant, in varying degrees, as a powerful but remote or distance authority figure.

On the State’s case, the appellant was able to and did exploit his power and ascendancy by manipulating JG, CL, AW, LB and MM to acquiesce in sexual activity with him without consent. His manipulation of them, in the context of his position of dominance, enabled him to exploit them sexually without violence or express threats. In any event, a complainant who, at or before the time of sexual penetration, does not by word or action manifest her dissent is not in law thereby taken to have consented to the penetration.

So what we say is this. Those common features identified by his Honour at 357 were not features that were probative of the appellant having a propensity to act in a particularly relevant way. The common features did not demonstrate that the appellant had a propensity to behave in a relevant way when engaging in sexual activity with female patients which, in turn, bore on the question of whether he behaved in the way alleged by the complainants, whether the complaint’s consented or consent was induced, or otherwise, or whether the appellant held an honest but mistaken belief about whether the complainants consented. The common features so-called by his Honour at 357 were in fact simply a consequence of the existence of a patient/doctor relationship.

HEYDON J: Are those six characteristics really consistent with an honest belief by an experienced psychiatrist that there was consent or reasonable belief?

MR GRACE: Sorry, were inconsistent or - - -

HEYDON J: Or consistent, whichever way you want it. If there had been one charge in relation to one complainant, that might be one thing in terms of that defence, but when you have two charges plus three other people coming forward, it places a great question mark over the honesty of the supposed state of mind.

MR GRACE: Well, I need to take your Honour to the actual evidence of those three women, non-complainants, to make good the point that those features are not inconsistent with the holding of an honest and reasonable belief, and could I first take - - -

HEYDON J: People with psychological difficulties to whom the defendant owed duties, and you describe the trust relationship, people who are much younger, perhaps much less well educated, is this really consistent with an honest belief or in consent?

MR GRACE: Yes. But one, of course, does not need to get to the stage of honest belief if there was, in fact, consent to the activity.

HEYDON J: But it was an issue and we are talking about the admissibility of evidence in relation to an issue.

MR GRACE: Yes. Yes, we are. Could I just test that proposition, if I may, your Honour, by referring you to page 516 of the appeal book. You will see at line 40 under a heading “The testimony of AW” – she was one of the non-complainant witnesses – paragraph 47 – Justice Pullen says:

AW gave evidence that she was suffering from ‘emotional illnesses’ following her daughter’s birth. She saw the appellant in his West Perth rooms.

I am paraphrasing. Her evidence, which is set out at paragraph 48, said that she was scared of him. He was an angry type of person. “Not a person I could feel at ease with.” She saw him about every two weeks. Over the page she says he was always seemed always distant throughout the period. Paragraph 49 the question is set out:

Now, in one of the sessions that you had with Dr Stubley, [AW], did something in particular happen?---Yes.

Can you tell us what happened?---Well, I needed – I can’t – I, kind of, needed to be emotionally connected with him so I went over to his chair, sat on his lap and kissed him and he got up abruptly and undressed – pulled down the zip of my dress and he had intercourse with me on the floor.

I will just ask you a couple of questions about that, if I can, [AW]?---Yes.

You talked about a need to feel emotionally connected with him?---Yes.

And you walked across and kissed him?---Yes.

Up until that point had there been any physical contact between you and Dr Stubley?---No.

Then in paragraph 50:

AW gave evidence that after intercourse occurred, she dressed herself, he washed himself in the basin in his room and dressed. She made an appointment to see him a couple of weeks later.

Then at paragraph 51 you will see other evidence set out and, paraphrasing, she says that she had oral sex with him on other occasions:

He would sit in a chair and I would, you know. I got it into my head that, you know, I wanted – I didn’t get his attention any other way. He started it off.

All right.

So there was oral sex that she performed on him, yes, and she said that he was distant. Then you will see on page 518, at the top of the page, a passage:

I think that I may have instigated it because I wanted to please him. I don’t remember exactly but I may have encouraged him by pulling down his fly while I was sitting on his knee.

Then at paragraph 53 she talks about another occasion and at line 22:

I think I must have rubbed him on the penis through his clothes. He stood up and pulled his pants down and then sat back in his chair and I knelt down on the floor and sucked his penis. If felt that this might please him, so I went ahead and did it. He did not ask me. He never said anything to me at all.

Is that what it says?---Yes.

Where she had been referred to her statement. Then you will see a confrontation about her falling pregnant and that was the last she saw of him. At paragraph 55 a passage in cross-examination is referred to and it is set out – a passage from her statement. It was put to her:

I went and visited him again and again. We had intercourse, from what I could remember. I believe that I probably would have indicated to him that I had no objections to it occurring. He certainly enjoyed it and I wanted to please him.

Now, just stopping there. Justice Heydon, if I could just answer your Honour’s question, how could that evidence take into account what Justice Buss said at paragraph 357 of his judgment be inconsistent with Dr Stubley holding an honest and reasonable mistaken belief as to consent. Now, it goes on - - -

HEYDON J: That is a rhetorical question, I trust?

MR GRACE: Yes, it is a rhetorical question. I ask that rhetorically. I apologise. At the bottom of the page:

She also agreed that her statement said:

He didn’t force me to have intercourse with him.

So that is the body of evidence of AW that was said to be relevant to establishing a fact in issue of a lack of consent to sexual activity.

KIEFEL J: But on one view it could be evidence of a position of power and therefore be evidence of an attitude towards her within the definition of relationship evidence.

MR GRACE: It may, but we are considering this evidence in the context of whether it bears significant probative value to the issue as to whether the sex with the complainants was with or without consent or whether he had a belief honestly held and reasonably held as to consent. This was said to be significantly probative of that and, I am sorry, but I ask rhetorically, how? There is always, as I said earlier, a position of power between a psychiatrist and a patient.

KIEFEL J: Quite.

MR GRACE: There have been many instances, unfortunately, in our collective experience of doctors or psychiatrists having sex with patients and those acts receiving the admonition of medical boards and resulting in suspension and disqualification and the like, but that is as far as that may go if there has not been anything further that would indicate force or intimidation or threats that would suggest that the sexual relationship occurred without consent. How, on any view of the evidence of AW, could it be suggested when she initiated the sexual conduct and came back repeatedly on many occasions and had sexual contact with him - - -

KIEFEL J: But perhaps the point is not so much in her reaction to his power but in what may be gleaned about his attitude towards her. That is the focus. It is the focus you put upon it, is it not?

MR GRACE: Yes, but the primary basis upon which the prosecution relies is that this evidence goes to supporting a pattern of behaviour by Dr Stubley that indicated that, through his exercise of power and domination, these women, the two complainants at least, did not consent.

KIEFEL J: But you might have the similarity in his conduct, for instance, by maintaining a quiet form of anger by maintaining a distance and if this is a common pattern with patients this might be the way in which he exercises power. What is that not probative of his attitude towards this class of people?

MR GRACE: The question is whether it is significantly probative of whether he had sexual activity with the complainants without consent.

KIEFEL J: There can be no doubt, surely, that there is a connection between consent and the exercise of power?

MR GRACE: There may be, but we say in the circumstances of this case there was not and certainly in the case of AW there was not. If I could next go to LB. LB, you will see at page 519 at paragraph 57, Justice Pullin refers to LB. At paragraph 57 Justice Pullen talks about, in summary of her evidence, the fact that towards the end of about two years of treatment – this is at about line 18:

he began to be ‘more sexual’ and he touched and played with her breasts. She said that she told the appellant that she was self conscious because she had a fear of her sexuality –

Then her evidence is set out at about line 28:

I was too frightened to take off my clothes so Dr Stubley took off his clothes. I was concerned that there was no lock on the door and he said that no-one would dare to come in. Also because he had taken off his clothes I felt embarrassed on his behalf and I didn’t feel like I could leave that room. I took off my clothes to make him feel better.

Did you want to take your clothes off?---No.

What happened when you did take your clothes off?---Then he proceeded to hug me which made me feel very embarrassed and uncomfortable so he suggested I lie down on the bed that was in the room and it would be easier for me.

So did you do that?---Yes.

Did you lie on your front or your back? Can you remember?---I lay on my back.

On that bed?---Yes.

What happened?---Dr Stubley lay on top of me.

LB did not testify that the appellant had intercourse with her. She saw him again subsequently. They did not have any further physical contact.

She went to Sydney. Then you will see paragraph 58:

LB gave evidence that when she was consulting the appellant he became ‘an anchor’ in her life for about two years and that he made her feel good.

In cross-examination, LB was asked about her diary for 1974 which the appellant’s counsel had been provided with. It recorded an entry by LB that she had ‘a desire to sleep with [the appellant] because ‘[she] loved him’.

So that is her evidence, far removed from the type of sexual activity that the two complainants talked about. All you have here is two naked persons, one lying on top of the other and that is it, far removed from the type of exercise of dominion or power that the two complainants talked about. If I could just take your Honours very briefly to the cross-examination of LB. This is at 263 in the appeal book.

KIEFEL J: Sorry, what was that reference?

MR GRACE: Page 263. She produced her diaries to the prosecution and they were provided to the defence and at line 11 the commencement of questions being asked about the diaries, and at line 13:

In your diaries, at least in 1974, as you move through to the early part of 1975, you often spoke about him in a sexual way, didn’t you?---Yes.

When I say that I mean you would describe him in a sexual way, about his body descriptions, about his body?---I don’t think that was many times I did that.

No, no. All right. If you recall this, I don’t need to the specifics . . . I think it is in April 1974, you talk about a desire to sleep with him because you loved him. Do you recall making that entry?---I may have.

All right. And there is another occasion in August of that year 1974 when you talk about wanting to live with John Stubley. Do you recall that?---Yes.

All right. And you’ve said, “I feel so full my heart could burst. Ecstasy. Body shudders in delight.” Do you recall that?---That may be in response to the sexuality that was happening.

Yes. So when these happened with him they were consensual, weren’t they? They were with your consent?----No.

That question should not have been asked. It was strictly, according to Phillip’s Case, inadmissible, but nevertheless it was asked and she said it was without her consent.

HEYDON J: Phillip’s Case is one of the most criticised decisions of the High Court of all time. There are other authorities that support it and there are other authorities that are out of line with it. It may be that they are all reconcilable, but Phillip’s Case is not a sort of granite mountain that is sharp and immovable.

MR GRACE: No, but the logic behind the admonition about how this type of evidence could amount to evidence supporting the complainants in a case such as this still holds, in our submission. Then she was asked further questions on that topic and she talks about, on page 266, she accepts that she was having a fantasy about him and she talks about an entry on 267 at line 20 that she wrote in her diary:

In April in 1974 . . . “In counter-group John Stubley smelt of drink. Saw him for the first time as a good-looking man. He had a sexual body for the first time and I desired to sleep with him because I love him.” That’s the fantasy, is it?---Well, yes, and he would have had clothes on and I was so young. He was older than my father.

At the bottom of page 267 you will see that when the clothes were taken off she did not say anything. If I could next, in the summary of the three witnesses, take you to the third witness, MM, and conveniently Justice Pullin again at page 520 summarises that evidence. You will see at paragraph 60 that when she turned 21 Dr Stubley kissed her on the lips, and she gave evidence and you will see that passage that is set out at paragraph 62 and she says towards the bottom of that, “When Dr Stubley said that to you” and said “You look like you need a big hug”:

I accepted the hug. I went to his chair and accepted the hug.

When you hugged was he still sitting or was he standing?---Initially he was sitting.

Yes, and then what happened?---I found him undressing me and initiating sex.

All right. You say you found Dr Stubley undressing you. Did you say anything to him at the time that he was undressing you?---No.

Did you wish him to undress you?---No.

What about Dr Stubley? Did he remain clothed or did he undress himself?---He was partially undressed.

Then at line 20 there is a relating of what he said to her, that she looked beautiful and the fact that she did not respond, and sex took a few minutes and he washed himself in the basin and she said she was in shock. Then she said she felt revolting and she said she did not want to have intercourse with him, but she remained working for him. Thirty years later she met the complainant JG and told JG about this incident, or something similar. Now, Justice Pullin - - -

GUMMOW J: Just before we go to that, we need to start off with the Code, I think, in Western Australia. The first section is 222, is it not?

MR GRACE: Yes, 222 deals with the indecent assault.

GUMMOW J: That actually has the requirement “without consent” spelt out. The other one is 325?

MR GRACE: Section 325, yes. Section 325 is a not completely a mirror image of 222 but sufficiently similar. They both refer to the issue of consent and if the consent is obtained by fraud or who intimidates or threatens.

GUMMOW J: Section 327 is copied, is it, from the Queensland Code?

MR GRACE: The penalty section, yes.

GUMMOW J: Section 327 attempts to commit the crime of rape.

MR GRACE: Sorry, your Honour, yes.

GUMMOW J: There is nothing we should attend to, is there, in the provisions in Chapter V, the general criminal responsibility sections?

MR GRACE: Yes, there is, your Honour. Section 24, that is the honest and reasonable but mistaken belief section.

BELL J: Just while we are dealing with the provisions of the Code, at appeal book 413 and following her Honour gives some direction to the jury concerning the element of absence of consent with respect to the charges, as I understand it, under 325.

MR GRACE: Yes, and that goes through to 417.

BELL J: Yes. So the jury were directed that, relevantly, consent induced by fear of bodily harm, fear or intimidation at 413, line 45 is not consent?

MR GRACE: Yes. There is no quarrel, correct, as to how her Honour directed the jury in that respect. His Honour, Justice Pullin - - -

GUMMOW J: Just before you do that, what do you say about the trial judge’s rulings at page 87 at paragraphs 61 and 62 which is how all this got in in the first place? Paragraph 61 on page 87.

MR GRACE: Well, her Honour fails to identify what those other relevant issues are.

GUMMOW J: Paragraph 62, absence of complaint?

MR GRACE: Yes. Well, in our submission, there was not that commonality of evidence that could ever amount, in the circumstances of this case and in the evidence that I have outlined to your Honours, to evidence of significant probative effect or value and when her Honour says at the bottom of paragraph 62:

I consider the divergence –

between some of the witnesses –

largely constitute different examples of the same or similarly based conduct or reasoning. I also consider there are a sufficient number of similarities and consistencies –

we say her Honour was just clearly wrong. Her Honour was wrong for the reasons outlined by his Honour Justice Pullin at page 522 of the appeal book. Also, you will see at page 542 again a reference to those reasons. So at 522 and at 542 his Honour Justice Pullin deals extensively with the reasons and at paragraph 143 his Honour says this:

The trial judge’s unparticularised conclusion that the ‘issues include the conduct of the accused both before and after engaging in sexual activity’ (emphasis added), with respect, reveals a failure to recognise that the only issue was consent and that if the evidence of AB, LB and MM was to be relevant, it had to be relevant to some conduct by the appellant inducing JG or CL to consent. Secondly, it reveals a failure to recognise that only JG said she was threatened and that there was no evidence by AW, LB or MM of any threat of institutionalisation.

Your Honours may not recall, but in the case of JG, the first complainant, she said that she went along with this sexual activity for years and then continued to see the appellant for 18 years in total before she complained in 1996 and the reason, even after sex had ceased in about, I think, 1980 or thereabouts, the reason she did not complain was because, whether during sex or after the sexual activity had ceased, was because she felt under threat of institutionalisation by the appellant. The source of that feeling on the part of JG was that at some very early stage of the relationship between Dr Stubley and her there had been some suggestion, she said, that he would institutionalise her if she did not comply, but that was the subject of dispute in the evidence and Dr Stubley did not accept that, but putting all of that to one side, it was capable of acceptance on the part of JG. So JG’s was the only evidence that contained any threat of institutionalisation, for instance.

You will see in the paragraphs that follow, at paragraph 144 for instance, his Honour refers to the appellant washing himself and the suggestion that that was relevant and his Honour correctly, in our submission, said it was:

irrelevant to the issue of consent or whether the appellant threatened or intimidated JG or intimidated CL.

Then at paragraph 145, his Honour says:

The next reason the trial judge gave in [62] was that:

[I]ssues include . . . matters personal to the witnesses which go to explaining or understanding why no complaint of this activity was made despite it being alleged that the sexual activity was not consensual.

With respect, why AW, LB and MM might not have complained and why JG did not tell anyone for 18 years and CL for many years are not related to each other. JG continued to see the appellant for 16 years after the last act of intercourse. It is not clear what her Honour had in mind by saying that something of the evidence of AW, LB or MM went to explain why no complaint was made by JG or CL for many years. Whether a person complains depends on matters personal to them.

The next reason given by her Honour was that:

Although in relation to some aspects of the conduct and of the circumstances of the witnesses there is a divergence of evidence between some of the witnesses, I consider the divergence largely constitute different examples of the same or similarly based conduct of reasoning.

With respect, this generalised statement of ‘same’ or ‘similarly based conduct or reasoning’ provides no support for the decision to rule that the evidence of AW, LB and MM are relevant. In fact, I find it difficult to detect any meaning in these two sentences.

Finally, her Honour’s statement that she considered that there were ‘a sufficient number of similarities and consistencies for the evidence to retain its significantly probative value’ is again so generalised and unparticularised as to provide no explanation for the decision.

His Honour came to the conclusion that her Honour had erred.

BELL J: It might be thought that his Honour’s reasoning at paragraph 143 and following in which he expresses some criticism of the trial judge’s unparticularised conclusion that the evidence has significant probative weight finds support when you look at what it is she told the jury what the jury might do with the evidence, beginning at page 403 and continuing, but then at page 407 the clear direction that it would be wrong for the jury to reason from the evidence of the propensity witnesses to the issue of consent. It is, for my part, a little difficult to understand what the jury were to take from the directions as to the use that properly they could make of the evidence.

MR GRACE: Also, if your Honour goes over the page on to page 408.

BELL J: Yes, at paragraph 20 and following.

MR GRACE: There her Honour is talking about cross-admissibility and the same complaint attaches to the use, in the cross-admissibility sense, of the evidence of CL and JG in respect of each other.

GUMMOW J: What have they been told they could use it for?

MR GRACE: I am sorry?

GUMMOW J: What was the positive use that they were being told they could make of this material?

MR GRACE: Well, at page 404 at line 33, also that paragraph commencing at line 9 that I have already read to your Honours.

BELL J: But, I am sorry, at 30 on 404 that is going to consent, is it not?

MR GRACE: Yes, it is.

BELL J: Where was the evidence of what use this jury could make of the evidence that did not go to the issue of consent?

MR GRACE: I am sorry, where was the direction you mean, your Honour?

BELL J: Yes. What were the jury being told they could make of the evidence? They had been instructed in firm and clear terms it had no relevance to the issue of consent.

MR GRACE: It is only the passage I have already read to you at 404. The answer to your Honour’s question is her Honour could not.....because there was no other relevance other than the issue of consent. It was an impossible task and it was an impossible task because when one analyses the evidence of those three witnesses, you can see how it was impossible to conclude that there was sufficient similarity in the features or commonality of the features, notwithstanding Justice Buss’ list at paragraph 357.

CRENNAN J: I suppose on one view, although I think all these roads lead back to consent possibly, but on one view the evidence was intended to explain the lack of dissent registered in the circumstances of each of the complainants. I mean, in a sense, it is about consent but, as I understand the evidence, it was led in order to explain that the manner and circumstances of each of the events were characterised by no indication of dissent for reasons which were given.

MR GRACE: Or, in the case of AW, and I do not want to stress the point, there is not a question of dissent, there is a question of initiation by AW, extraordinary, and that was used, we say, in a most prejudicial way because what it did was create in the minds of the jury additional opprobrium that attached to the actions or the conduct of Dr Stubley when it was not warranted. It could have absolutely no bearing on the veracity of the versions given by JG or CL and yet it was allowed.

His Honour, in terms of section 325 particularly but also section 222 of the Code, dealt extensively with whether any aspects of the evidence of those three witnesses could amount to threats or intimidation, as those sections reveal, as possible sources of inducing a lack of consent. His Honour goes through this exhaustive analysis commencing at paragraph 129 on page 539 of the appeal book. His Honour at 129 talks about JG and at 130 about CL and at 131 talks about what is meant by the word “intimidation” within the context of the relevant sections of the Code. At paragraph 132, under the heading:

Did AW, LB or MM give evidence that the appellant threatened them with institutionalisation?

The answer is no. At paragraph 133:

Did AW give evidence of intimidation which was relevant to the charges concerning CL?

his Honour says:

It is true that AW regarded the appellant as an angry person, but his angry persona had nothing to do with inducing AW to engage in sexual activity. The appellant gave no hint that she should engage in sex with him and made no additional attempt to engage in sex with AW. Instead, as the evidence reveals, AW decided to deal with what she thought was his ‘distant’ approach by instigating sexual behaviour and later by engaging in oral sex. AW gave no evidence of any conduct of intimidation inducing her to instigate and consent to sexual conduct with the appellant. As a result, her evidence was not relevant to the charges concerning CL.

Then over the page, his Honour deals with LB and concludes at the bottom of 135 that LB gave no evidence of intimidation and then his Honour refers to MM. At 137 says:

MM gave no evidence of any angry personality, of any threat, or of any intimidating behaviour inducing her to consent to sexual intercourse. She did use the word ‘intimidated’ in her evidence about the act of intercourse which occurred. She was asked whether she remembered what was going through her mind at the time the episode of intercourse occurred and she said:

. . . I didn’t know how to tell him that I felt revolting and he was my boss and I didn’t think I would get another job and he was like a guru or a figure I was greatly intimidated by.

That was not intimidation by a display of anger that CL complained about. MM’s evidence was therefore not relevant to the charges against CL.

Then his Honour came to the conclusion that none of that evidence of the three witnesses revealed:

conduct which went to show a propensity to engage in a particular kind of conduct in order to gain his patient’s consent and which provided evidence probative of the threat made to JG or the intimidation of CL.

Even if the mere use of the word ‘angry’ by AW and the use of the word ‘intimidate’ by MM could be said to show a propensity which supported CL’s evidence (and I do not think they could), LB did not use either word.

In my opinion, the entirety of the evidence of AW, LB and MM was irrelevant to any issue in the case. It was of no probative value for any purpose and it was therefore inadmissible –

and then his Honour goes on to discuss the trial judge’s reasons. When your Honours peruse the respondent’s submissions or the reasons of Justice Buss which were agreed with by Justice Owen, nowhere is there an identification of the nature of the propensity that was said to be capable of being established by the evidence of those three witnesses. There is nowhere, is there, that – and we are not talking about the propensity to have sex with patients, we are talking about something beyond that which attaches to the issues that were in dispute in the case. Neither was there an explanation by his Honour Justice Buss as to how the so-called common features that he identified at paragraph 357 were capable of establishing that the appellant had a particular propensity. Neither was there an explanation of the link between any so-called propensity that was said to be capable of being established and proof of the facts in issue.

Can I just briefly take your Honours to Phillips [2006] HCA 4; 225 CLR 303. At paragraph 54 – and this was in the joint judgment of the Court, of course – at the bottom of page 320 of the report, it is at the bottom of that paragraph on that page after referring to Pfennig and O’Keefe, although, of course, Phillips was dealing with a different regime for the admissibility of similar fact evidence, nevertheless, what I am about to read, your Honours, is, in my submission, still relevant to the assessment of whether there is significant probative value in the evidence of those three witnesses in this case. Their Honours said this:

It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”.

Now, I put that comment to one side because it does not strictly apply to section 31A but the following does, in our submission –

Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”. As explained in Pfennig v The Queen:

“[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”

In this case none of these criteria are met – either on the issue of whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent.

Now, we say that that attribution to the facts of Phillips Case attach equally to the facts of this case. So to be significantly probative, it must be significantly cogent as to provide proof of the facts in issue. Now, your Honours, I have dealt with an analysis of the evidence of AW, LB and MM and submitted that their evidence reveals that in toto or singly none of their evidence was capable of establishing that the appellant had a propensity to engage in a particular kind of conduct in order to gain consent.

BELL J: If the appellant had a propensity to engage in a particular conduct, namely, to abuse his position of power in order to obtain the consent of patients to sexual intercourse, what relevance would that have to a criminal charge? I mean, it would be highly relevant to professional proceedings with respect to discipline. Consent has meaning in the context of the offence that is created under 325 of the Code one would think.

MR GRACE: Yes, but when one is concerned with the question of admissibility, one must look at how the common features, putting aside any strictures that Phillips’ Case might contain, put that to one side, let us say Phillips’ Case was never decided by the Court, nevertheless common feature that was said to be lack of consent could not be significantly probative of whether JG and/or CL consented. So we are still back to the same proposition, what were the common features of those three witnesses that would allow the fact in issue to be resolved in the way that the prosecution said it could and we say there were no such common features and therefore the evidence was inadmissible. Those are the matters, your Honours, unless you have any specific questions.

HEYDON J: Can I just ask you this question, Mr Grace. Justice Pullin’s judgment, part of which you very much rely on, open substantively really with an analysis of the effect of making an admission in a criminal trial and he analyses some competing authorities and prefers the line of authorities which commence Mr Justice Gibbs in Longford’s Case and the proposition is that if an admission has been made, no evidence is capable of being called in relation to the matter admitted. Do you remember that?

MR GRACE: Yes.

HEYDON J: He then sets out the so-called admission made by senior counsel for the appellant at the trial, and that is on page 534 at paragraph 109. In 110 he then criticises that in quite strong terms. He then, in 119, says that the prosecutor should not have been allowed to cross-examine the accused about two of the counts because of the admission. If that is so, why was evidence-in-chief from the two complainants admissible? Why was not the posture adopted conformably with this logic of the complainants being, in effect, forced to say, “Well, I know he admits being sexually intimate. I just want to tell you that I never consented to that”, and then give such other evidence as they might be able to give? But is there not a problem in Justice Pullin’s reasoning? If it was wrong to cross-examine on counts 10 and 11, it must have been wrong to examine-in-chief about counts 10 and 11.

MR GRACE: Yes, there is force in that observation, your Honour.

HEYDON J: Let me put this to you. Justice Pullin’s criticisms were well founded as far as they went, but in truth the correct conclusion was that they simply were not proper admissions. They were very vague, they said nothing as to dates, which may not be a material matter, but they were very vague, their tone was nonchalant as if to flick the matter aside as an insignificant one and that for that reason, the evidence of the other three people was admissible because there had been no proper admission about the actus reus to attract the reasoning in Longford’s Case or any equivalent reasoning.

MR GRACE: Absent the prosecutor’s opening that I took your Honour to earlier and a further exchange, which I will take your Honours to now, there is certainly force in what your Honour has to say, but the answer to your Honour’s question is this. Firstly, there was no misconception by the prosecution that the sexual acts that were alleged to have occurred actually occurred, and - - -

HEYDON J: Do you mean they did not – let me get this......conception by the prosecution – and that therefore the prosecution did not press the accused about them, is that what you did not - - -

MR GRACE: I will answer your Honour but I will come to it in a round about way. Could I take you to page 522 of the appeal book. At paragraph 64 his Honour Justice Pullin says this:

Her Honour also recorded a statement by senior counsel that the appellant would admit that ‘some or all of the acts of a sexual nature occurred’, both with the complainants and with three witnesses giving propensity evidence, but that the acts were consensual. Counsel for the respondent on this appeal acknowledged that what was said by counsel was understood as meaning that consent was to be the only issue at trial. This appears from the following exchange at appeal ts 43:

PULLIN JA: Do you accept that her Honour proceeded on the basis of what she had been advised by senior counsel and recorded in paragraph 3; that is, that there was to be an admission that some or all of the acts of a sexual nature occurred both with the complainants and the three witnesses, but the acts were consensual?

TROY, MR: Yes.

That is the first part of my answer to your Honour Justice Heydon. The second, at paragraph 14 of the respondent’s submissions filed in this Court this is what the respondent said:

If the appellant did not admit the touching, carnal knowledge or attempted carnal knowledge of JG or CL (as particularised in the indictment) the propensity of the appellant (as evidenced by AW, LB and MM) could rationally affect the assessment by the jury of the probability that he had sexual relations with JG and CL. The fact that the appellant did have sexual relations with JG and CL was accepted by the appellant (but he was unable to recall the specific events). Given the admissions and the conduct of the trial it is accepted that it was not a live issue as to whether the appellant did engage in the sexual activity alleged by JG and CL.

Then at paragraph 30 - - -

CRENNAN J: I suppose you also need to look at 15 which is about the limitations on the admission.

MR GRACE: Yes, but that went to the consent issue.

CRENNAN J: Yes.

BELL J: One is looking here at admissions being made by an accused aged 80 with respect to sexual conduct more than 30 years earlier.

MR GRACE: Yes.

BELL J: Once it is accepted that he admitted that he had sexual relations with the complainants on occasions in his rooms, what is the significant probative value in calling evidence of other patients about the fact that he had a tendency to have sexual relations with patients in his rooms? The admissions at least established that much.

MR GRACE: Yes, but there was no such value in the circumstances of this case. Paragraph 30 of the respondent’s submissions say this:

What may be distilled from the reasoning of the majority is that the s31A evidence could rationally affect the jury’s assessment of the probability that the sexual activity with JG and CL occurred without their consent and, if it did, whether the appellant held an honest and reasonable (but mistaken) belief that they were consenting.

Going back to what your Honour Justice Heydon put to me earlier and coupled with the exchange I have just had with Justice Bell, I trust that that answers that particular – or the effect of the nonchalant way in which the admissions were approached in circumstances where the whole trial was conducted on the basis that the sexual activity had occurred and, as I read to your Honours earlier from the prosecution opening, it was clear from the earliest stages of the jury being put in charge that sexual activity was not an issue.

HEYDON J: If it was not in issue, why was evidence-in-chief allowed about it?

MR GRACE: Well, there ought to have been admissions formally made that obviated the need for that evidence to be given. There was simply no objection to that evidence being given. Similarly, there was no objection to evidence or questions being asked about whether any of those three witnesses had consented or not.

GUMMOW J: The conduct of the trial was determined by the conclusions on the preliminary ruling at page 87.

MR GRACE: Yes, that is so, your Honour. There is one final matter that is addressed in the submissions and you will see in the orders that are sought in the notice of appeal and it is addressed by Justice Pullin also in the concluding parts of his judgment as to whether, if the appeal is allowed, a retrial ought to be ordered or not. For the reasons enunciated by Justice Pullin at paragraphs 162 to 167, the appellant submits that if the appeal is to be allowed, that there be no order for a retrial.

GUMMOW J: We have made orders unusually to that effect in other cases. Have you got any recollection of those? They have usually been by reason of some legal impediment which could be overcome with a retrial, which is not this case.

MR GRACE: No, that is so, your Honour. What his Honour referred to at paragraph 163 was the decision of Director of Public Prosecutions (Nauru) v Fowler, and there this Court considered at page 630 of [1984] HCA 48; 154 CLR 627 – at page 630 his Honour sets out the passage, and there in a joint judgment Chief Justice Gibbs, Justices Murphy, Wilson, Deane and Dawson said, halfway down page 630:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

Then it goes on to the particular - - -

BELL J: .....question of a Fowler nature arises here. Fowler is really directed to instances where, by the order for a new trial, one is permitting the Crown to make a fresh case in circumstances where it would be inappropriate that it be given that opportunity. There is nothing of that character here.

MR GRACE: No, I can see there is nothing of that character in this circumstance, but his Honour’s ultimate reasons for coming to the conclusion are set out at 166 and 167, and he refers to the age, the fact that he is suffering from a major depressive disorder and other significant issues of ill health. The age is obviously the primary factor. I do not want to say any more about that other than to endorse what his Honour had to say.

HEYDON J: Can I just get this straight as a matter of theory. If we directed a new trial, that would not bind the DPP?

MR GRACE: No, it would not.

HEYDON J: If we said nothing about a new trial, that would not bind the DPP either?

MR GRACE: No, it would not.

HEYDON J: The conviction having been set aside, he cannot plead autrefois convict. He has not been acquitted, so he cannot plead autrefois acquit. You are not asking for an acquittal understandably. So what does it really matter whether one mentions a new trial at all? It seems, except possibly in a persuasive way along the lines that Justice Pullin has - - -

MR GRACE: Yes, it is the latter. Unless there is anything further.

BELL J: Was your client on bail before this trial?

MR GRACE: Yes, he was.

GUMMOW J: Thank you, Mr Grace. Yes, Mr McGrath.

MR McGRATH: May it please the Court. As has been observed by my learned friend, there is agreement as to the proper construction and interpretation of section 31A between the parties. The respondent does agree that the interpretation placed on section 31A of the Evidence Act by his Honour Justice Steytler in Dair v State of Western Australia is an appropriate construction. The issue, as has been said, is this, is whether or not this evidence was relevant, and the respondent does accept there are difficulties attending to establish relevance, plus whether it was significantly - - -

GUMMOW J: It is no good saying there are difficulties. This is where they get resolved.

MR McGRATH: Yes, your Honour. If I could take your Honours to the first question and that is, as has been identified by my learned friend, what the tendency was. His Honour Justice Buss, at appeal book 606 at line 40, identifies the relevance of propensity evidence and constructs the tendency:

‘a tendency that [the appellant] . . . had’ at the material time . . . in relation to at least some of his female patients. In particular, it was evidence of the appellant’s proclivity at the material time to engage in sexual activity with at least some of his female patients in his consulting room, the dynamics of his relationship with those patients generally, and the manner in which he either initiated or participated in that activity.

His Honour, if I could take the Court to appeal book 608 at line 45 through to page 609 at the foot, identifies the relevance of that evidence. What I would propose to do is address the issue of the tendency. It was not the respondent’s case, your Honours, that the appellant engaged in sexual misconduct with female patients which grounded the relevant tendency or conduct, rather, it is the dynamics of the relationship and the manner in which the appellant dealt with patients in the manner described. It has been said by my learned friend what the particular characteristics were.

This certainly was not a case where it was said to be striking similarities or characteristics, rather, what is required is an analysis of the nature of this relationship to identify the proclivity. The first that we rely up on is the period that can be said. The period between each of the complainants and the propensity evidence was in the early 1970s. The proclivity also involved younger patients. There was the identification of the appellant of younger patients. JG was 29 years of age, CL 30 years of age, LB 22 years of age, MM 18 years of age.

BELL J: What is the significance of the period of time during which the offences are said to have occurred and the age of the complainants?

MR McGRATH: What was said by the majority of the court below is it is the identification of the appellant of vulnerable persons in a particular period of a particular - - -

BELL J: Assume the appellant was a person inclined to pick on vulnerable women in order to have sexual relations with them and let us assume he liked to pick on younger, attractive, vulnerable women in order to have sexual relations with them, what does that establish?

MR McGRATH: In itself, your Honour, it would not be sufficient. It needs to be coupled with the fact that the appellant used sex with patients as a methodology.

BELL J: But let us assume he used sex with patients as a methodology, whatever that might mean, what does it say about the one issue that was live in this trial?

MR McGRATH: Your Honour, the way the majority in the court below dealt with this, if I could take your Honour, is this. There has to be a consideration as to whether the manner in which the sexual contact occurred, the manner and circumstances, the dynamics of the relationship. This is referred to by his Honour Justice Buss.

BELL J: Yes. What does dynamics of the relationship there mean in the Crown’s submission?

MR McGRATH: In the Crown’s submission it can be no more than the power imbalance between and the targeting of vulnerable persons.

BELL J: Let us accept both those things, that there is a power in balance between a psychiatrist and a young woman suffering depression, where does it take one, bearing in mind the direction given in clear terms to the jury that none of this evidence bore on the issue of consent?

MR McGRATH: There are difficulties, I accept, with the direction given by the learned trial judge. The construction, your Honour, if I could take the Court to 325 - - -

GUMMOW J: You mean difficulties for the DPP’s case?

MR McGRATH: Yes, your Honour. It bore relevance in the way - - -

GUMMOW J: What are those difficulties you see?

MR McGRATH: The difficulty is, as has been identified by my learned friend, whether or not there has been in this case an identified propensity or proclivity of the appellant. That is a difficulty with this case and it can only be put in the way in which we have put it in our submissions and that was way his Honour Justice Buss, in the majority in the court below, put it. That is the primary difficulty that attends to this case.

GUMMOW J: I think what has been put to you is it may not be enough and you need to separate the support you have from Justice Buss and the other member of the majority in the Court of Appeal in Western Australia because it is under challenge.

MR McGRATH: Yes, your Honour. What I can say on behalf of the respondent today is, I can make submissions no greater in support of the respondent’s position than what was said by his Honour Justice Buss in his reasons for decision in the court below.

KIEFEL J: This is primarily to do with the assertion of power in the relationship, is that the central - - -

MR McGRATH: Yes, that is correct.

KIEFEL J: And a difficulty with that at a factual level might be that the evidence of the other witnesses tends not so much, except for one of them I think, to refer to this exertion of power as so much as the use of hugs, which is to say, an offering of comfort. It is harder to connect that to the issue of consent, is it not, than the exertion of power by silence and the like?

MR McGRATH: It certainly is, your Honour.

KIEFEL J: And the way in which the evidence was taken did not really seem to focus upon the use of power to obtain consent. It was more to do with the women’s experiences.

MR McGRATH: That is correct. The relationship between the proclivity and consent was put by his Honour Justice Buss, and this is the highest I can put it, is at appeal book 608 at line 25:

On the State’s case, the appellant was able to and did exploit his power and ascendancy by manipulating JG, CL, AW, LB and MM to acquiesce in sexual activity with him without consent. His manipulation of them, in the context of his position of dominance, enabled him to exploit them sexually without violence or express threats. In any event, a complainant who, at or before the time of sexual penetration, does not by word or action manifest her dissent is not in law thereby taken to have consented to the penetration.

What is being said there by the majority in the court below, in my respectful submission, is a reliance on what may be referred to as the first limb of section 325 of the Criminal Code as it then stood.

GUMMOW J: We had better look at 325. We do not have a daily familiarity with this.

MR McGRATH: Yes, it is clear that his Honour Justice Buss, and we cannot assert today, that the power in balance or the intimidatory conduct could amount to conduct which would ground a complaint on the second limb of 325, that is, consent, if given, was vitiated by threats of intimidation of any kind or by fear of bodily harm.

KIEFEL J: So far as concerns fraudulent representations as to the nature of the act, there was no evidence that it was put to the women that this was a method of treatment?

MR McGRATH: Your Honour, the case on behalf of the respondent was not conducted on the base of fraudulent representations. There was evidence from the appellant that he engaged in therapeutic treatment which involved sexual activity. However, the respondent did not say that they were fraudulent representations upon which consent would have been vitiated under 325. The reasoning of Justice Pullin, to which my learned friend took you to, concerning whether there was cogency in any argument as to whether the threats or intimidation could have been linked directly to the complainants’ sexual activity is accepted. So far as my submissions, written submissions, say otherwise, I now say that that cannot be supported. It is quite clear that the position was, of the majority in the court below, that the question was, was there consent? Not whether there was consent and it was vitiated or obtained in that particular way.

GUMMOW J: Just looking at 325, it seems to have two branches. The first branch is without her consent and the second branch is with her consent with five sub-conditions; by force, by threats, by fear, by fraudulent representations or with a special position of personation and which of those sub-branches of the second branch were you directing us to?

MR McGRATH: Your Honour, the only branch that could possibly have been contemplated is whether it was by means of threats or intimidation of any kind. However, the reasoning of Justice Pullin, in respect to the use that could have been made of that branch, has to be accepted. The reasoning of his Honour Justice Buss at page 608 confirms that was the reasoning, that it was in fact what I will refer to as the first limb, was their consent. The reasoning was – and the highest it can be put is this – that the appellant engaged in conduct, which conduct was, as I have described, the manipulation in the context of his position, a dominance, that he was able to have the sexual contact or conduct in circumstances where there was no consent.

GUMMOW J: What role would section 24 play, if any? Honest and reasonable mistake of fact?

MR McGRATH: In a way referred to by the majority in the court below at page 609, lines 20 to 30 where it is something your Honour Justice Heydon raised in discourse with my learned friend, that it bears on the assessment of the probability of whether “the appellant had an honest and reasonable (but mistaken) belief that there was consent.” That honest and reasonable mistake was a significant factor or an issue in this trial is quite to be accepted. There was a stark contrast in the manner in which the appellant described the situation as against JG and CL. What falls to be considered is the nature and dynamics of the relationship and the likely probability in respect to whether or not it could have been properly held a defence of honest and reasonable mistake.

There is a more narrow way in which honest and reasonable mistake may arise in this case. JG gave graphic evidence of crying, displaying to the appellant that she quite clearly, through demeanour and words, did not want to engage in sexual activity, but on the State’s case the appellant continued. MM, AW and LB, their evidence, that was not given, so in that case it arises as to if it is said the appellant is engaging in therapeutic treatment, it falls to be incessant by him as to whether or not he could have possibly held the honest and reasonable mistake.

BELL J: The appellant did not say that he was engaging in therapeutic treatment, did he, as distinct from admitting that he was having sex with his patients?

MR McGRATH: The appellant said that he was engaging in therapeutic - - -

BELL J: I am sorry.

MR McGRATH: Yes, he did. It was in his evidence-in-chief. Except for where my learned friend says the appellant’s evidence was that it was during the early 1970s an approach taken in psychotherapy and that - - -

BELL J: But did he say with respect to these particular instances he was asserting that this was part of therapeutic treatment?

MR McGRATH: He did, but not in respect to MM. My learned friend reminds me he had no recollection of LB. But what his evidence was was this, that - - -

GUMMOW J: Can we see it?

MR McGRATH: Certainly. His evidence was that he engaged in sexual activity with patients because it was lawful - - -

BELL J: Because it was?

MR McGRATH: It was a lawful act and it comprised his treatment. If I could take your Honours to page 308 at the top of the page where he refers to the “school of thought” and he was one of those people that followed that.

KIEFEL J: Who is the “she” there referred to at the top of 308, “She spoke about she was aware”?

MR McGRATH: That was the evidence of CL. CL gave evidence that at the first consultation she made it abundantly clear through declaration to the appellant that she did not want to engage in what she referred to as bed therapy.

BELL J: Yes. She was the psychiatric nurse who was familiar with the idea that some psychiatrists might consider it a therapeutic technique to have sex with their patients.

MR McGRATH: That is true, your Honour, and CL gave that evidence which - - -

GUMMOW J: At the top of 307.

MR McGRATH: Yes, the mention to Freud.

GUMMOW J: Poor old Carl Jung is misspelt.

MR McGRATH: Another difficulty with the case, your Honour. Page 307 has got Freud and - - -

BELL J: But can we come back to something you said a few moments ago, Mr Crown. You talked about the evidence of the three propensity witnesses, as I understand it, going to a tendency to manipulate patients into sexual contact where there was no consent. I do not purport to put it exactly, but I made a note that it was to that effect. Again we have the difficulty that anything touching on consent is contrary to the directions that the judge gave as to the probative value of the evidence but, furthermore, it is by no means clear that the propensity witnesses were saying that they had sexual relations without consent.

MR McGRATH: Your Honour, if I could take your Honours - - -

BELL J: In the sense of their conduct at the time. I mean, subsequently one can understand one may come to see that one has been conned.

MR McGRATH: LB gave direct evidence at appeal book 264 that what happened was not consensual and, as.....my learned friend that the question should not have been asked and if one follows Phillips, that has to be correct. In respect to Phillips though, the submission that we make in our submissions is that if the evidence is led for a particular reason, but it directly or indirectly also addresses consent, then it is still admissible and we rely upon Phillips for that.

BELL J: I think the matter that I am raising with you, Mr Crown, is this. One can appreciate that all these years later at a trial mature women who look at what occurred in the therapeutic context many years earlier would have a different appreciation of the nature of the sexual act that took place, but within the context of the criminal law and the notion of absence of consent, to say that a sexual act initiated by a needy vulnerable patient who fellates the psychiatrist in order to get his attention is without consent in a section 325 sense, seems to be me to be attended by some difficulties.

MR McGRATH: Your Honour, there are difficulties but when one fairly looks at the evidence of AW, whilst the interaction did commence in the manner in which your Honour describes, it is quite clear that, as she expressed, it was not contact that she wished, that she fell under the man’s spell. Can I ask this rhetorical question? It was put by the respondent that this was question for the jury to determine whether or not, based upon the evidence given, with the hindsight of 30 years, as to whether or not their evidence bore on the question as to whether or not the appellant – whether there was consent by CL or JG.

BELL J: Contrary to the judge’s direction in that case.

MR McGRATH: In this case?

BELL J: Yes.

MR McGRATH: Yes, your Honour. Regrettably the learned trial judge directed, according to what one would anticipate based upon Phillips, but does not return to the question of how honest and reasonable mistake would arise here, nor the manner in which his Honour Justice Buss in the court below approached it, so the jury was not given a sufficient direction. That is accepted. Your Honour, there is no more I could say in support of the respondent’s position other than what I have said. In respect to the last question as to whether or not a retrial should be ordered, we do rely upon what we say in our written outline of submissions and we agree, with respect, to what Justice Heydon said. Our submission is that it be, as a matter of public policy, for the Director in a State - - -

GUMMOW J: Sorry, it would be?

MR McGRATH: The Director in the State would determine whether or not in all the circumstances and obviously the circumstances embrace what my learned friend has said and that is the age, frailty and health of the appellant and the public office is in the position to do that. May it please the Court.

GUMMOW J: Thank you.

MR McGRATH: Thank you, your Honour.

GUMMOW J: Mr Grace?

MR GRACE: Yes, just two brief matters. In answer to a question that your Honour Justice Gummow posed to me as to the relevant provisions in the Criminal Code. I may have indicated that there was no material difference between the operation of section 222 and section 325. Section 222 deals with the indecent assault charges.

GUMMOW J: Yes.

MR GRACE: There are, in fact, some material differences because section 222 makes no reference to intimidation.

GUMMOW J: Let us just have a look at that.

MR GRACE: Yes. So I make that observation. The second matter is perhaps - - -

HEYDON J: Except for “threatens to apply force”, I suppose. Threatens to apply force is a very narrow type of intimidation.

MR GRACE: That is so, your Honour. The second matter and final matter concerns the issue of the directions on consent. Your Honour Justice Bell raised this both with myself and with my learned friend. Section 24, which is the honest and reasonable belief provision, operates only when proof of lack of consent has been proved beyond reasonable doubt. So it comes into play after that and not before.

GUMMOW J: Sorry, could you say that again. Section 24 comes into play?

MR GRACE: Only when the lack of consent on the part of the complainant has been proved beyond reasonable doubt and therefore, only under the first limb of section 325. The second aspect touching upon this issue of consent is that in 1986 the law in Western Australia changed in that it introduced a definition of “consent”, but until that time and the law as pertaining to these charges was relied upon a previous decision of West Australian court in the matter of Holman [1970] WAR 2, and your Honours do not have this, at page 6.

GUMMOW J: Sorry, what year did you say the change was, 1986?

MR GRACE: 1986, yes.

GUMMOW J: We have the reprint of 13 December 1983 which would be proper.

MR GRACE: Yes, that is proper. So there was no statutory definition of “consent” up until that time.

BELL J: Her Honour’s directions in that respect are conformable with the law as it applied for this trial, is that right?

MR GRACE: That is right.

BELL J: Yes.

MR GRACE: Her Honour applied the proper directions stated by Chief Justice Jackson in the case of Holman.

GUMMOW J: What is the citation of that?

MR GRACE: [1970] WAR 2 at page 6, and at that page Chief Justice Jackson said that:

A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.

Of course, there is great disapproval of that direction in modern times but nevertheless, her Honour directed the jury in those terms at page 414 at line 9 where her Honour said:

The consent does not have to be enthusiastic in order to amount to consent. Consent can be begrudging or reluctant but if it is consent, that is the end of the matter.

Those are the matters in reply, your Honours. Yes, for completion, your Honours, could I just indicate that the definition of “consent” is contained in section 319 - - -

GUMMOW J: Perhaps you will read that onto the transcript.

MR GRACE: Yes. Section 319(2) provides that:

For the purposes of this Chapter –

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

GUMMOW J: The side note suggests that was added in 1992, is that right, Act 14 of 1992?

MR GRACE: Yes, Act 14 of 1992, section 6.

GUMMOW J: Yes, thank you.

MR GRACE: Those are the matters in reply.

GUMMOW J: We will take a short adjournment.

AT 12.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.18 PM:

GUMMOW J: At least a majority of the Court supports the order which will now be made. That order is:

1. Appeal be allowed.
   
2. The order of the Court of Appeal of the Supreme Court of Western Australia made on 3 March 2010 that the appeal against the appellant’s convictions be dismissed be set aside and in place thereof order that the appellant’s convictions be set aside.
   

The Court will deliver its reasons in due course. We will now adjourn to 9.00 am tomorrow to take the special leave list.

AT 12.20 PM THE MATTER WAS ADJOURNED

UPON RESUMING AT 2.01 PM

GUMMOW J: Yes, Mr Grace.

MR GRACE: As I understand, your Honours have reconvened the Court to consider the terms of the order that was announced by your Honours.

GUMMOW J: Yes. The Judiciary Act position is that we make the order the intermediate court should have made, I suppose. The Court of Appeal is constrained by section 30(5) when they set aside a conviction either to order a new trial or to acquit. It has to be one or the other.

MR GRACE: That is right and you will notice, your Honours, that Justice Pullin at page 549 of the appeal book, paragraph 167 entered a judgment of acquittal, pursuant to section 30(5). So, yes, we agree with that position, your Honours.

GUMMOW J: The situation then would be if we made these orders now this afternoon, you could attend forthwith on the Registrar and get a sealed order?

MR GRACE: Yes, your Honours.

GUMMOW J: It would then be for you to seek bail, would it, back in the Supreme Court, or the Court of Appeal?

MR GRACE: Yes.

GUMMOW J: Do you agree with that?

MR McGRATH: I do and bail would be agreed to this afternoon and the appellant will be released.

GUMMOW J: Thank you.

MR McGRATH: May it please the Court.

GUMMOW J: Just pardon me a moment. I will hand down two copies of the proposed order, if you will just check that. Does that seem to express the intention?

MR GRACE: Yes, it does, your Honour.

MR McGRATH: Yes, it does, your Honour.

GUMMOW J: Thank you, your Honour. Very well then.

The Court firstly rescinds the orders pronounced orally earlier today and in their place orders as follows:

1. Appeal allowed.
   
2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 3 March 2010 dismissing the appellant’s appeal against conviction and in place thereof order that:
   

(a) the appeal to the Court of Appeal be allowed;

(b) the convictions of the appellant be set aside; and

(c) there be a new trial.

The Court will deliver its reasons in due course.

MR GRACE: As the Court pleases.

GUMMOW J: We will now adjourn until 9.00 am tomorrow.

AT 2.04 PM THE MATTER WAS ADJOURNED