STUBLEY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 57 (23 March 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : STUBLEY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 57

Admissibility of propensity evidence - Relationship evidence

Criminal Procedure Act 2004 (WA)

Evidence Act 1906 (WA)

Dair v State of Western Australia [2008] WASCA 72

Donaldson v Western Australia (2005) 31 WAR 122; [2005] WASCA 196

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

R v Lockyer (1996) 89 A Crim R 457

State of Western Australia v Osborne [2007] WASCA 183

Zammit v Western Australia [2007] WASCA 66; (2007) 34 WAR 302

1 JOHNSON J: The accused is charged on indictment with seven counts of rape, six counts of indecent assault and one count of attempted rape. Eleven of the counts on the indictment are alleged to have been committed upon complainant JG and the remaining three counts on a second complainant, CL. All the offences are alleged to have taken place between 8 December 1975 and 31 August 1978 when JG and CL were being treated by the accused, who was at that time a practicing psychiatrist.

2 The accused brought an application for separate trials and to exclude propensity evidence. At the hearing of the application, senior counsel for the accused conceded that the charges were properly joined on the indictment and withdrew the application for separate trials. That part of the application relating to the exclusion of propensity evidence was maintained although it was further conceded that the evidence sought to be adduced by the State did indeed meet the definition of propensity evidence contained in s 31A(1) of the Evidence Act 1906 (WA) (the Act) and would be admissible if it met the criteria in s 31A(2) of the Act. In the course of his submissions in reply, senior counsel further conceded that the prejudicial effect of the evidence of the second complainant was balanced by its probative force. Although not expressed in the same terms as the test set out in s 31A(2) of the Act, I understood senior counsel to be indicating that the sole issue for consideration was whether the propensity evidence to be given by a number of witnesses was admissible under s 31A(2). In my opinion, this concession was properly made, for I am satisfied that the evidence of the second complainant CL has significant probative value and meets the criteria identified in s 31A(2)(b) of the Act. Implicit in that conclusion is that I am satisfied that the accused is not likely to be prejudiced in his trial because the indictment also contains charges relating to CL and that there is, therefore, no justification for ordering the charge relating to CL to be heard separately: s 133(3) Criminal Procedure Act 2004 (WA) (the CP Act). In my view, any likelihood that the accused may be prejudiced can be guarded against by an appropriate direction to the jury: s 133(5) CP Act; see also per Wheeler J [39], Pullin J [49].

3 Senior counsel also advised the court that at trial the accused would admit that during the period identified, 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.

4 Counsel for the State identified four witnesses who were to give propensity evidence. For convenience, I will collectively refer to these witnesses as the propensity witnesses. The first such witness is VZ, who was treated by the accused and who, according to VZ, never made any sexual overtures to her. However, VZ does refer to an incident which is alleged to have occurred at a halfway house in Mundaring when she saw the accused having sex with a woman she knew to be a patient. However, in view of the concession that the accused engaged in sexual activity with the complainants and the other propensity witnesses, counsel indicated that the State would no longer seek to lead the evidence of VZ on the basis that it was now not probative of any matter in issue.

5 The other three propensity witnesses are LB, MM and AW. In the statements of LB and MM it is alleged that the sexual activity which took place with the accused was non-consensual, although no complaints were made to the police and the accused has never been charged over this conduct.

6 With respect to AW, who was also a patient of the accused at the relevant time, she was the instigator of the sexual activity albeit she later felt regret and developed a feeling of being ill-used. AW had been referred for psychiatric treatment in 1975 as she had lost a lot of weight, was very stressed and very confused. According to AW, when she initially saw the accused, he did not appear to her to be very caring and she felt a bit scared of him. After she had consulted the accused on approximately six occasions, she felt that she wanted to get close to him because she wanted 'that close feeling because I had never been close to anybody and I was confused'. She said that she 'started to get these feelings about him'. Consequently, on the next consultation she went and sat on the accused's lap and kissed him on the mouth. AW alleges that, without saying anything to her, the accused stood up, undid the zip at the back of her dress and took her dress off. He then pulled her pants down. He then laid her down on the floor by indicating to her what he wanted and had sexual intercourse with her. According to AW, 'When I kissed him though I didn't know it would lead to sex'. She further stated that, after intercourse, the accused gave her some tissues to wipe herself and then washed himself in the sink.

7 Conduct of this nature is also alleged to have occurred on a number of occasions during subsequent consultations, on each occasion commencing with AW sitting on the accused's lap and culminating in the accused washing himself in the sink. AW states that she had sexual intercourse with the accused on another occasion when she had booked herself into Niola Private Hospital. This incident is alleged to have occurred on the floor of the accused's office in the hospital.

8 AW explains in her statement that she wanted to please the accused. It was not until she told another doctor what had happened, and he told her that the accused should not have done what he did, that AW started to think that it was not right. She says in her statement that what the accused did was wrong and he used her. She states that she felt emotionally raped.

9 It can be seen that AW initiated contact between her and the accused by sitting on his lap and kissing him. However, she alleges that it was the accused who initiated the sexual intercourse. Significantly, aspects of the incident such as getting AW to lie on the floor, taking her clothes off, washing himself in the sink and handing tissues to her, are consistent with aspects of the accused's conduct identified by LB and MM. Further, the time period is the same and AW was also a patient with mental health issues which might make her vulnerable.

10 On behalf of the State it is said that AW's evidence 'is capable of indicating to the jury the nature of the accused's personality at that time, the power and influence that he exercised over his patients, so as, in her case, to lead to her suddenly walking over to him, sitting on his lap and performing sexual activities because of a desire to please him, as she expressed it'.

11 I note that senior counsel for the accused did not draw a distinction between the statements of any of the propensity witnesses, although he was clearly excluding the statement of VZ from consideration.

12 In her statement LB indicates that she was a patient of the accused between late 1972 until early 1975. She had been admitted to hospital as a result of a suicide attempt arising from her recent marriage break-up. She believed she was suffering from depression. She was referred to the accused and commenced seeing him weekly at his consulting rooms. Initially, the only physical component to the consultations were that, when she became distressed during the sessions, the accused would hold her hand or hug her to comfort her. The accused told LB that she was too nice and needed to loosen up and be more real and then she might stop harming herself.

13 Towards the end of 1974 LB was offered a scholarship to study in Sydney which meant that her sessions with the accused would end. According to LB it was around this time that the accused's approach to her began to change. LB said that he seemed to think she was sexually repressed and that she was afraid that if she expressed her sexuality it would make the accused lose control of himself. During subsequent sessions the accused allegedly put his hands down LB's top, touched her breasts and stroked her nipples. LB described her reaction as embarrassed and humiliated because she was becoming aroused. She said that she rationalised the accused's actions by thinking that he was interested in her. She describes the incident as very confusing.

14 LB also said that she regarded the accused as an authority figure and even though embarrassed, she did not leave or walk away because she felt protective towards him. According to LB, at the time the accused was the only anchor in her life. Her parents were migrants who had only recently come from England and her own father was an ex-soldier, who was strict and very hard and occasionally lost control of his temper.

15 LB says in her statement that a particular incident occurred during a therapy session in January 1975 before she was to go to Sydney. She says there was a sense of urgency that time was running out and that she needed to face up to her fear about expressing her sexuality. It is alleged that, to facilitate this, the accused suggested they take their clothes off and hug. Although she felt uncomfortable, LB said she trusted the accused. LB did not immediately respond to the accused's suggestion and the accused then took all his clothes off, in her view, so as to encourage her to do the same. She also believed that the accused wanted her to know that she was safe in this situation, that nothing sexual was going to happen.

16 According to LB the accused suggested that it would be easier if they lay down on the hospital bed in the room. Although she was frightened, LB did lie down on the bed. Her explanation was that she wanted to get better before leaving for Sydney, and so she had to 'deal with it there and then'. LB says in her statement that she was frightened, more like frozen, with fear. She lay on her back on the single bed and the accused came and lay on top of her. After that everything became blank. She does not recall getting dressed or leaving the room.

17 LB gives two reasons why she did not report the accused to the Medical Board or the police. The first reason was that she was always finding justifications for what the accused did. The second reason was that she dealt with her anger in another way: by attempting to get a film going which portrayed him and exposed his actions.

18 MM's evidence is that in late 1974 when, she was 19 years old, she was suffering from depression and became a patient of the accused. She also worked for him as a receptionist at his rooms. She states that one of her instructions while working as the accused's receptionist was to never interrupt a consultation. She also states that the accused always locked the door during consultations. She recalls on many occasions seeing female patients leaving the consulting rooms looking untidy with crumpled clothes and their hair messed up.

19 MM recalls an incident around the time of her 21st birthday when the accused approached her and gave her a kiss on the lips when prior to that time their relationship had been a very formal employer-employee, patient-doctor relationship.

20 According to MM, the accused coerced her into having sexual intercourse with him exploiting his knowledge of her delicate emotional state. She indicates that during a consultation the accused told her she looked like she needed a hug and hugged her before undressing her, laying her on the floor and having intercourse with her. She thinks she recalls the accused washing himself at the wash basin in the consulting rooms. Although she was shocked, MM did not tell anyone because she was only young and was intimidated by the accused. She also thought she would not be believed. She was also worried she might lose her job.

21 MM ceased employment six months later. She alleges that she had been dramatically effected by the sexual intercourse to the point she requested admittance to the mental health ward at Sir Charles Gairdner Hospital.

22 As mentioned above, the admissibility of propensity evidence is dealt with in s 31A of the Act. Subsection (1) sets out the definitions for 'propensity evidence' and 'relationship evidence'. As it is conceded that the evidence sought to be adduced is propensity evidence, it is unnecessary to address this aspect of the provision.

23 Subsection (2) identifies the test for the admissibility of propensity evidence in the following terms:

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.

24 It has been held that s 31A abrogates the common law test expressed in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and applied in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 that propensity evidence is inadmissible if there is a rational view of it that is inconsistent with the guilt of the accused: see State of Western Australia v Osborne [24] per Wheeler JA, [50] per Pullin JA. It has also been held that, when s 31A was inserted into the Act, it was intended that the courts would be given a greater capacity to admit propensity and relationship evidence: Dair v State of Western Australia [2008] WASCA 72 per Miller JA [179] citing Western Australia, Parliamentary Debates Legislative Assembly, 30 June 2004, 4608 (Mr J A McGinty, Attorney-General).

25 The expression 'significant probative value' was considered by Hunt CJ in R v Lockyer (1996) 89 A Crim R 457 at 459. The term 'significant' in that context was held to mean 'important' or 'of consequence'. In State of Western Australia v Osborne, Wheeler J [13] noted that the State relied on Hunt CJ's analysis of the expression 'significant probative value' and observed that the analysis had not been challenged by the respondent. The meaning attributed to the term by Hunt CJ was applied by her Honour. In Dair v Western Australia, Steytler P [61] concluded that the expression should be construed as something more than mere relevance but something less than a 'substantial' degree of relevance. His Honour also accepted that it is a probative value which is 'important' or 'of consequence'.

26 As to the second requirement of 31A(2), the wording of s 31A(2)(b) comes directly from McHugh J's dissenting judgment in Pfennig v The Queen (529): Dair v Western Australia per Miller JA [180]. As Miller JA observed in Dair v Western Australia [181], the terms of s 31A(2)(b) are significant in that they formulate the degree of risk of an unfair trial by reference to what 'fair-minded people would think' that the public interest required in adducing all relevant evidence of guilt. His Honour added that such evidence must, in the circumstances, have priority over the risk of an unfair trial.

27 In State of Western Australia v Osborne, Wheeler J also considered the meaning of the phrase 'risk of an unfair trial' in the context of allegations of sexual offences. Her Honour said:

The risk of an unfair trial is a risk that, notwithstanding a warning to the contrary, a jury might wrongly reason that, because the appellant had committed an offence of a sexual nature on one occasions, it necessarily followed that he had committed an offence of a sexual nature on another occasion [38].

28 In Donaldson v Western Australia (2005) 31 WAR 122; [2005] WASCA 196 Roberts-Smith JA, with whom Wheeler and Miller JJA agreed on this point at [127]-[130] expressed the meaning of the phrase in these terms:

The risk of an unfair trial there spoken of, must, I think, be the risk that a jury might uncritically overvalue the probative effect of the evidence and conclude the accused must have committed the offences charged simply because he or she has committed other offences or has done (or has a reputation for doing) other discreditable things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning [127].

29 Roberts-Smith JA described this impermissible approach as 'propensity reasoning'.

30 Miller JA in Dair v Western Australia at [183] noted that Roberts-Smith JA did not refer to the words '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'. His Honour observed that these words are an important aspect of s 31A(2)(b) which mean that the old test of prejudice needs to be expanded and that what is required is a consideration of what fair-minded people would think about the public interest in having all relevant evidence of guilt before the jury. Miller JA added [184] 'that there may be circumstances where there is undoubtedly a risk of an unfair trial, but if there is a public interest in having all relevant evidence of guilt admitted, it must take priority over that risk'.

31 In Dair v Western Australia, Miller JA also considered the meaning of the words 'fair-minded people' and said:

The legislature has chosen to use the words 'fair-minded people' rather than 'reasonable people', but the expressions mean the same thing. In the context of s 31A(2)(b), I consider 'fair-minded people' to be people who would approach the issue of unfairness in a reasonable and objective fashion, appreciating that, in some cases, the risk of an unfair trial is outweighed by the public interest in having [the relevant evidence] before the court [188].

32 Senior counsel for the accused submitted that the expression 'significant probative value' is a high threshold. In the written submissions it was conceded that evidence of how the accused behaved with other female patients at the relevant time would certainly have a material bearing on the issues to be determined. However, at the hearing, senior counsel submitted that, in circumstances where it will not be in issue that the acts occurred, he was not convinced that the propensity evidence has the quality of significant probative value.

33 In fact, at the hearing, senior counsel raised the issue of whether the evidence of the propensity witnesses was sufficiently cogent to be categorised as propensity evidence. Counsel observed that the witnesses were 'a bit vague' about how the accused is said to have manipulated them in order for him to achieve sexual gratification. In fact, as is apparent from the witness statement and as submitted by counsel for the State, the evidence of the propensity witnesses addresses a number of relevant matters. It is the evidence of the accused's behaviour which is the primary purpose of adducing the evidence of the propensity witnesses. For example, it is the fact that the accused requests or orders the patient to take off their clothes and to lie on the floor and that afterward he washes himself in the hand basin in the room. It is also the circumstances of the patients; their age, when the incidents occurred, the fact that they were undergoing treatment for mental health issues and their vulnerability because of those issues. Further, there is the evidence of the fact that sexual intercourse is instigated by the accused and of the way in which the accused manages to persuade the witnesses to engage in that activity when it is not their desire or intention to do so and to accept or rationalise the accused's conduct.

34 Certainly, the evidence of a witness who is vulnerable and has been undergoing treatment for mental health issues may be difficult to understand when attempting to describe the way in which the witness rationalised the conduct described or in attempting to describe the reasons for returning for further appointments. However, it does not follow that the evidence is not cogent. The explanations given involve complex issues arising from the doctor-patient relationship and relating to the vulnerability of a patient receiving treatment for mental health issues. However, in my view, those explanations are capable of being understood by a jury and are of significant probative value, as indeed is the evidence of the accused's conduct.

35 On behalf of the accused, reliance was placed on the decision in Phillips v The Queen where the High Court discussed the relevance of propensity evidence in circumstances where consent is the only issue. In Phillips v The Queen, the court observed at (46) that, normally, similar fact evidence is used to assist in issues relating on to the conduct and mental state of an accused. However, the court noted that, where a particular count supported by one complainant's evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than to his. The court observed at [47], [50] that is was impossible to see how, on the question of whether one complainant consented, the other complainant's evidence that they did not consent has any probative value and concluded that the evidence, tendered as it was on the issue of the consent of each complainant, was irrelevant to that issue.

36 Senior counsel referred to the decision of Wheeler JA in State of Western Australia v Osborne but submitted that the decision in State of Western Australia v Osborne was not completely at odds with Phillips v The Queen and could be distinguished on its facts. It was submitted that Wheeler JA in State of Western Australia v Osborne reasoned that there were facts which bore upon the accused's behaviour which made the propensity evidence relevant for that purpose alone and that did not in any way derogate from the reasoning in Phillips v The Queen. Senior counsel submitted that the importance of the decision in Phillips v The Queen was 'the potential prejudice that could arise from the admission of the propensity witnesses' evidence and the other complainant'.

37 I do not accept the proposition that the decision in Phillips v The Queen can be relied upon in determining the admissibility of propensity evidence. In State of Western Australia v Osborne [50] Pullin J referred to Phillips v The Queen and concluded that the case did not have to be considered because it was a case which did not examine the changes made by s 31A. His Honour added that there was in footnote 2 to the decision in Phillips v The Queen express acknowledgment of the 'wider changes' made by s 31A in this State.

38 Wheeler JA's decision in State of Western Australia v Osborne explains the limited scope of the statement of principle in Phillips v The Queen. Her Honour stated:

...I would note that it is plain that evidence which relates to or which concerns whether an accused person behaved in a particular way may also bear upon the question of consent ...I do not understand the High Court to be saying that, simply because evidence of that kind would bear upon the mental state of a complainant (that is, the issue of consent), the evidence was incapable of being admissible similar fact evidence. Rather, as I understand it, the court was concerned with the legally obvious proposition that, merely because one young woman does not consent to a sexual encounter with an accused person, that does nothing to prove whether or not a different young woman, in different circumstances, might have consented [27].

39 Counsel for the State made it clear that the propensity evidence was not being led to establish lack of consent. Indeed, the evidence of AW is that she initiated the physical contact between her and the accused. In fact, in his oral submissions senior counsel accepted that the statements of the propensity witnesses contain matters relevant to an assessment of the accused's behaviour. However, senior counsel maintained that this factor did not contradict the reasoning in Phillips v The Queen in relation to the issue of consent. I have some difficulty with that proposition. As Wheeler JA pointed out in State of Western Australia v Osborne at [27], where there is an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addresses lack of consent does not make it inadmissible.

40 In Phillips v The Queen, the court did not conclude that the evidence sought to be led was unduly prejudicial, it concluded that the evidence was inadmissible, although, having been led solely for the impermissible purpose of establishing a lack of consent with respect to the charges on the indictment, it clearly had no probative value. The result then must be that the effect of accepting that there exists some other forensic purpose to the propensity evidence is that the decision in Phillips v The Queen has no relevance to the issue of the admissibility of that evidence.

41 However, I do accept that, if I am not satisfied that the propensity evidence is relevant to an issue other than consent then, consistent with the decision in Phillips v The Queen, the propensity evidence would be held to be inadmissible.

42 With respect to the issue of prejudice, the submission of senior counsel was that there is always prejudice resulting from propensity evidence and the court must always balance that prejudice against the probative force that results from its admission. It was further said that, involved in that exercise is a consideration of the use which a jury may make of the evidence, and whether a warning would be sufficient to avoid any impermissible reasoning on the behalf of the jury.

43 It was further said that, whilst the prejudice arising from the evidence of two complainants may be contained by a judicial direction, the addition to the jury's consideration of the evidence of three propensity witnesses making allegations of uncharged acts, which are not matters that the jury will have to determine in the traditional sense, increases the prejudice dramatically. It is submitted that the danger lies in the jury becoming pre-occupied with a consideration of the accused's general character rather than a consideration of the charges brought against him. In support of that proposition, senior counsel relied on the following extract from Phillips v The Queen:

Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decision. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant [79].

44 Whilst a pre-occupation by the jury with a consideration of the accused's general character may well be a matter for consideration in considering the prejudicial effect of admitting propensity evidence, the balance of the propositions set out in this extract are simply no longer relevant to the admissibility of propensity evidence. I have already referred to the fact that s31A abrogates the common law test expressed by the majority in Pfennig v The Queen. Indeed, the wording of s 31A is taken from the test formulated in the dissenting judgment of McHugh J in Pfennig v The Queen. Further, as Wheeler JA noted in State of Western Australia v Osborne [33], in Phillips v The Queen the court was concerned with the exceptional similarity or other very high degree of probative force, required for admissibility at common law. That very high degree of probative force is not equivalent to the significant probative value referred to in s 31A(2).

45 It was further submitted on behalf of the accused that it is unlikely the risk of unfairness in this case can adequately be guarded against by a direction. As the evidence of the applicant's commission of other charged or uncharged offences is proposed to be admitted solely for its propensity, it was said that the prejudicial value of that evidence would be so great that it would be difficult to be satisfied that even the strongest of warnings would be enough to overcome it.

46 However, the risk of prejudice in this case can only be the risk of impermissible propensity reasoning. The decision in State of Western Australia v Osborne indicates that juries are capable of heeding judicial directions. Wheeler J, (with whom Miller JA agreed), stated:

The risk of an unfair trial is a risk that, notwithstanding a warning to the contrary, a jury might wrongly reason that, because the appellant had committed an offence of a sexual nature on one occasion, it necessarily followed that he had committed an offence of a sexual nature on another occasion. That is not, in my view, a risk of such a nature, in the present case, that the court should assume that it could not be dealt with adequately by direction, thereby eliminating, or acceptably reducing, the risk of unfair trial relative to the probative value of the evidence.

Further, even in cases of sexual offending against children, it is accepted that it is possible to guard against erroneous propensity reasoning by an appropriate direction, so that often a series of sexual offences against children in one family may be joined in an indictment. If matters of that kind can be joined, it seems to me that it must follow that it is possible, without undue risk to the fairness of the trial, to join counts of sexual offending against mature men. I would add, that it is the common experience of the court that, in cases of sexual offences where a number of counts are joined in an indictment, juries will return verdicts of guilty in relation to some, and verdicts of not guilty in relation to others. To that extent, experience teaches that a direction warning against impermissible reasoning is likely to be accepted. It would therefore be my view that it is open to the State to have a joint trial [38] - [39].

47 In the same decision, Pullin J agreed with Wheeler JA, for the reasons given by her, that a direction to the jury will be sufficient to overcome any prejudice caused by the jury hearing evidence which the judge may rule is inadmissible: [49]. In that case, the joinder issue had been determined prior to trial and the trial judge had yet to rule on the admissibility of the evidence.

48 When the examples of joinder referred to by Wheeler JA are considered, it seems to me that there is no reason to conclude that an appropriate direction in this case would go unheeded.

49 However, senior counsel further submitted that, where the jury is required to consider the evidence of five witnesses, there is a real risk that the jury will be overwhelmed, as a result of which their focus of attention would shift from the purpose for which the evidence was admitted to the question of whether the sexual activity was consensual. No authority was cited in support of this proposition. Where the common experience of the court is that, in cases of sexual offences involving the joinder of a number of counts, a direction warning against impermissible reasoning is understood and applied by the jury, I can see no logical reason why such a direction would not have the necessary effect simply because further counts are added or additional witnesses are called. No reason was provided as to why the jury would be overwhelmed in such circumstances.

50 Finally, on behalf of the accused it is said that informed, fair-minded people would conclude that, even allowing for the giving of a suitable warning, the degree of risk is so high that the public interest in adducing all relevant evidence of guilt could not have priority over that risk and that a fair-minded person would, in this case, conclude that that the risk of an unfair trial would require that the propensity evidence be excluded in the interests of justice.

51 Counsel for the State advised that the State was not seeking to lead the evidence of the propensity witnesses in order to demonstrate by their evidence that, in the case of an individual complainant, it must be the case that she was not consenting. Rather, it was said, the State seeks to lead the evidence as evidence of conduct by the accused in bringing about a situation where sexual activity occurs, without consent in its legal sense, but without opposition or resistance from the particular complainant. In essence, the evidence is not being adduced to establish that sexual activity took place but for the purpose of establishing the circumstances in which that activity occurred.

52 The State's written submissions identify in relation to each of the two groups of counts on the indictment, the following facts in issue:

(i) the accused committed the offences in the context of a doctor-patient relationship;

(ii) the offences against the second complainant and some of the offences against the first complainant were committed in the same rooms;

(iii) both complainants were of a similar age at the time that the offending commenced, respectively 29 and 36;

(iv) the accused committed the offences against each complainant during the same period;

(v) both complainants were to the accused's knowledge particularly vulnerable and isolated;

(vi) in each case the accused held a position of influence and trust over them. Further, his position enabled him to be with the complainants alone without arousing undue suspicion;

(vi) the accused committed offences against a background of having conducted therapy sessions with each complainant for some months before commencing physical contact with them;

(vii) the accused would typically invite each complainant to lie with him on the floor of his rooms. The accused thereby committed the offences in circumstances where he instilled an atmosphere of normality when in reality such a circumstance did not exist;

(viii) in neither case did the accused resort to violence or to express threats but rather both complainants submitted to the accused's conduct out of fear of the potential consequences of not complying;

(ix) in all cases each of the complainants were readily able to identify the accused, and he must have known that;

(x) Both complainants became dependent on the accused notwithstanding his offending;

(xi) the offending conduct commenced with a hug or caress and then gradually escalated in seriousness; and

(xii) following intercourse the accused was in the habit of washing his genitals in a basin in his room.

53 Counsel submitted that a jury considering the two accounts together might consider that it would be a startling coincidence if two women, not known to each other at that time, alleged that their psychiatrist in the guise of therapy, hugged them, invited them to lie on the floor with him, removed their clothing and performed sexual acts upon them including regular acts of sexual intercourse. It was further said that, if the two accounts are considered together, the jury might be better informed of the imbalance of power that existed in the particular situation and understand how it was that the complainant that they are considering would acquiesce to sexual activity even without violence or an express threat being employed.

54 Counsel submitted that with only two complainants the probative force is not as strong as it might be where there are multiple complainants. However, it is said that the propensity witnesses are able to testify with regard to the accused's conduct and strengthen the case against the accused. The prosecution submits that the evidence of the propensity witnesses has significant probative value and identifies the following similarities between the evidence of the propensity witnesses and the evidence of the complainants:

(i) all the witnesses were patients of the accused;

(ii) all suffered from a form of depression;

(iii) the conduct relied upon occurred in the same period 1972-1979;

(iv) all were of a similar age ranging from 21 to 30;

(v) all were scared of the accused;

(vi) all could be characterised as vulnerable and isolated;

(vii) AM and MM report the accused cleaning himself in a basin and AW recalls him giving tissues to her to clean herself up;

(viii) sexual intercourse occurred between AW and the accused on almost every occasion that there was an appointment once it had commenced;

(ix) AW describes an episode in which she was the instigator of sexual conduct. That is not an assertion made by either complainant but the witness does describe that the accused made no attempt to dissuade her. Instead he undressed her and they had intercourse, behaviour which would be completely incompatible with the doctor-patient relationship;

(x) AW reports the sessions with the accused as being characterised by long periods of silence from him;

(xi) MM describes the sexual contact commencing with a hug and then moving swiftly on to the accused undressing the complainant and having sexual intercourse.

55 In relation to item (ix), AW is described as the instigator of sexual conduct. However, as I have noted when referring to her evidence, she did sit on the accused's lap and kiss him but she did not suggest that they have sexual intercourse. That conduct was initiated by the accused.

56 Counsel acknowledged that in the case of LB and MM, there is not an express comparison with the evidence of the two complainants that they were fearful of the accused and acquiesced in what occurred because of their fear of the consequences, specifically a fear of re-admittance to a psychiatric unit if they did not succumb to his advances. However, their statements are said to be characteristic of persons of a similar sort of age to the complainants, suffering from the same sort of mental difficulties, for example, episodes of depression, and a modus operandi by the accused to convince them that what was occurring was normal and beneficial. In LB's case, she was being informed that she was somewhat sexually repressed and that she would benefit from the physical contact that developed. MM indicates that she thought that what occurred to her was part of the therapy. Counsel submitted that in considering the evidence of the particular complainant that the jury are concerned with, and her evidence that she did not consent but went along with the sexual conduct because of a fear of the consequences, the jury would be assisted by the evidence of LB and MM as to the ability of the accused to persuade them to engage in sexual conduct without their desire to do so.

57 Counsel for the State conceded that the jury is bound to have a feeling of disapproval of sexual conduct between the accused and his patients but submitted that this could be dealt with adequately by a robust direction. Further, it was submitted that it was unlikely to be the case that such disapproval would increase exponentially because the conduct related to five patients rather than two patients. In my view, there is no basis to conclude that a direction understood in relation to two different witnesses would not be understood and applied where there are five witnesses.

58 On behalf of the State it was submitted that, in the present case, there was not a risk of such a nature that the court should assume that it could not be dealt with adequately by direction, thereby eliminating or acceptably reducing, the risk of an unfair trial relative to the probative value of the evidence. The State relied on the conclusions of Wheeler JA in State of Western Australia v Osborne in support of the proposition that any risk of an unfair trial could be addressed by an appropriate direction. Counsel also referred to the decision in Zammit v Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] where the court referred to the established view that, until the contrary is demonstrated, it must be accepted that the jury accept and faithfully apply the judge's directions.

59 Finally, it was submitted that a fair minded person would believe that in order for justice to be done in this case one jury should decide the case on all of the admissible evidence. The alternative would be that two separate juries would consider the case as it relates to each complainant without having a complete picture of the accused's conduct.

60 In applying s 31A to the evidence which the State seeks to adduce, it must be understood that the purpose of the provision is to give a greater capacity to admit propensity evidence. It is also the case that the test of prejudice previously applied has been expanded to require a consideration of what fair-minded people would think.

61 Notwithstanding that the evidence of the second complainant and at least two of the propensity witnesses addresses the issue of consent, I am satisfied that the evidence is of probative value because it also addresses other relevant issues. I do not accept the proposition that this aspect of the decision in Phillips v The Queen remains unaffected by the decision in Osborne v State of Western Australia.

62 In my view, the evidence sought to be adduced does indeed address other relevant issues. Those issues include the conduct of the accused both before and after engaging in sexual activity with the witnesses and also 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. Indeed, in my opinion, in cases of this type, evidence of such a nature is of significant probative effect. 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 or reasoning. I also consider there are a sufficient number of similarities and consistencies for the evidence to retain its significantly probative value.

63 Further, I accept the submission of the State that any prejudice which may arise from the admission of the evidence can be overcome by an appropriate direction. As I have indicated, the Full Court considers that directions in cases of this type are effective and that is certainly my experience. I also consider that, if the jury understands a direction as to the proper use of the evidence of a witness, they will understand the direction in relation to other witnesses giving the same type of evidence. In the absence of an authority which suggests that the number of witnesses is relevant to the effectiveness of a direction of this type, and as I can see no reasonable basis for such a conclusion, I would reject the proposition that, because there are five witnesses, confusion will result.

64 Finally, I share the view submitted by counsel for the State that a fair-minded person would believe that in order for justice to be done in this case, one jury, properly directed, should decide the case on all of the available evidence. Consequently, I have concluded that the criteria for admissibility identified in s 31A(2) of the Act have been satisfied and the evidence of the propensity witnesses should be admitted into evidence.